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The Problems and Pitfalls of Child Porn Laws

Laws protecting children may be in need of revision.

by
Clayton E. Cramer

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January 3, 2011 - 12:00 am
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Unlike some ideologues, I support laws prohibiting child pornography — but there are aspects to the current federal law on that subject that are truly insane.  I assume (and hope) that federal prosecutors are using the current law properly, but I cringe at how it could be misused.

I find the arguments endorsed by the Supreme Court in Ashcroft v. Free Speech Coalition (2002) to be absurd.  One of Justice Kennedy’s claims in that opinion was that the only constitutional basis for banning child pornography was to protect children who might be used in producing such materials.  Using adult actors who look like children, or making “virtual child pornography” which is entirely the result of computer animation processes, and selling it as child pornography, according to Justice Kennedy, is an exercise of free speech protected by the First Amendment.

I find this absurd because there is simply no evidence that the Framers intended freedom of the press and freedom of speech to extend to depictions of sexual activity, and considerable evidence to the contrary.  Blackstone’s Commentaries on the Laws of England (a very influential work in the development of American law) clearly supports freedom of the press, but also recognizes that this was not an unlimited freedom:

[W]here blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by the English law, some with a greater, others with a less degree of severity; the liberty of the press, properly understood, is by no means infringed or violated.

Blackstone goes on to point out that the traditional argument for an official censor was to prevent the abuse of the freedom of the press.  Instead, Blackstone argued that punishing criminal abuses of this freedom was a more effective way to prevent prior restraint.

Justice Joseph Story’s very influential Commentaries on the Constitution of the United States (1833) also recognized that freedom of the press was only a protection against prior restraint, not a protection from punishment for “licentiousness.”  Quoting Blackstone, Story observed,

A man may be allowed to keep poisons in his closet; but not publicly to vend them as cordials.

When Abner Kneeland was prosecuted for blasphemy in 1834 Boston, even Kneeland’s defense attorney recognized that freedom of the press, under either the Massachusetts Constitution or the First Amendment, had some limits.

The case of the prisoner at the bar, does not fall within that class of libels, for that class embraces merely lewd and lascivious publications, like some notorious works, filled with grossly indecent pictures and descriptions, calculated, to sully and corrupt the purity of youth, and to subvert the foundations of virtue.

It is difficult to imagine that child pornography would have been recognized by any of these people as protected by freedom of the press.

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