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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

Bio

January 3, 2011 - 12:00 am

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.

Laws that prohibit child pornography, even very broadly defined, are clearly constitutional — even if Justice Kennedy was not prepared to admit that.  What has me concerned is how astonishingly easy it is to be unintentionally and unknowingly in violation of the current federal law.  A recent posting by Professor Orin Kerr at Volokh Conspiracy discussed the question of whether the federal government has authority to require you to perform some action — such as buying health insurance.  An example that he gave of a current law that requires you to do something was the federal child pornography statute, which requires you to take several actions if you receive unsolicited child porn.

After reading that law, I am quite disturbed by how easy it would be to be unintentionally or even unknowingly in violation.  If someone sends you child porn unsolicited, you have an affirmative defense if you “possessed less than three matters containing any visual depiction” and you “promptly and in good faith… took reasonable steps to destroy each such visual depiction” and “reported the matter to a law enforcement agency.”

Here’s the problem: if someone emailed you a message that contained child pornography attachments, your email program might well identify the email as spam, and throw it into your Spam folder.  If you do not look in your Spam folder regularly and open all picture attachments (which is somewhat risky, since some viruses hide in attachments), you could easily receive child pornography and not know it.  If you do not know that you have received it, you cannot very well destroy “each such visual depiction” and report it to a law enforcement agency.

There are all sorts of technical problems with child pornography laws and unintentional violations.  One is that you might well have images on your computer that you did not even know are there.  For example, if you click on this page, you will download a picture onto your computer that to Democrats — and many Republicans — qualifies as obscene, vile, and repulsive: Sarah Palin.  But you won’t see the picture unless you click on the tiny little dot at the end of the page.  If you don’t click on it (or if I had not made it possible for you to click on it), Sarah Palin’s smiling face will still have been downloaded to your computer.

Imagine if that downloaded image was child porn.  You would not know you downloaded it to your computer — and therefore, you would have broken the law by failing to report it.  Imagine if there were more than three illegal images downloaded to your computer.  Even if you knew about them, and reported them to the police, you would not even have the affirmative defense available to you.

I won’t even go into the problem of viruses that hijack your computer and turn it into a child porn redistribution site.  This is all the more reason to keep your antivirus software up to date and operational.

From all that I have seen, federal prosecutors have enforced the child porn law against people who intentionally broke the law, such as prominent leftist San Francisco radio talk show host Bernie Ward, who pled guilty to not just receiving child porn, but to redistributing it, and Charles Rust-Tierney, “past president of the American Civil Liberties Union of Virginia,” who used his credit card to download video of sexual torture of girls under 12.

Nonetheless, the current child porn law has enormous potential for an unscrupulous prosecutor to destroy people who have unintentionally and even unknowingly received child porn.  I think a revision of that statute might be a good idea.

Clayton E. Cramer teaches history at the College of Western Idaho. His most recent book is My Brother Ron: A Personal and Social History of the Deinstitutionalization of the Mentally Ill (2012). He is raising capital for a feature film about the Oberlin Rescue of 1858.
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