Protected "porn": Supreme Court saves Romeo & Juliet again

By Michael W. Lynch

"What the Supreme Court has said here is that 'child pornography' has to involve children,'" Mark Kernes, a senior editor at Adult Video News, told The New York Times. "And what a shock that is."

Kernes was referring to the Supremes' ruling earlier this year in Ashcroft v. Free Speech Coalition, in which six of the nine justices slapped down the Child Pornography Prevention Act, a 1996 law banning a vast new area of expression under the guise of combating kiddie porn.

The decision doesn't defend child pornography: It's still illegal to create or own pornographic material that uses minors.

What the decision halted was the attempt to blur the clear line between actual child pornography and protected artistic and intellectual expression. The latter includes some twisted stuff, but it also includes much mainstream art and discourse. "The statute proscribes a visual depiction of an idea," wrote Justice Anthony Kennedy, "that of teenagers' engaging in sexual activity, that is a fact of modern society and has been a theme in art and literature throughout the ages."

Pornography has to be obscene to be illegal, and obscenity is a flexible standard based on community standards. What passes muster in San Francisco and New York (i.e., just about anything) may be unacceptable in Utah, although there are limits on both ends. Utah's porn czar can't bow to citizen demands to banish In Style and Cosmopolitan from supermarkets. Despite their revealing covers, these magazines have literary, scientific, and other non-prurient value.

Any sexually explicit depictions of minors, even if they look like they're over 18, are illegal. The idea is that the creation of such pictures is harmful to minors, even if the resulting pictures aren't otherwise considered obscene. That's why the early work of porn starlet Traci Lords was pulled from the video store shelves when it was discovered that she faked her ID in order to work.

This is as it should be.

To be effective and just, the law needs clear lines. The 1996 act blurred them, and in so doing give the federal government an all-purpose club with which to whack works that people in power find objectionable. The law outlawed "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct."

Among other things, this outlawed sexually explicit pictures of adults dressed as children, subjecting the purveyors to 15 years hard time for the first offense.

If you don't shed any tears for pornographers who specialize in serving niche markets, think of standard Western culture– high, middling, and low.

"The literal terms of the statute embrace a Renaissance painting depicting a scene from classical mythology, a 'picture' that 'appears to be of a minor engaging in sexually explicit conduct,'" Justice Kennedy wrote for the majority. "The statute also prohibits Hollywood movies, filmed without any child actors, if a jury believes an actor 'appears to be' a minor engaging in 'actual or simulated... sexual intercourse.'"

Under the law's language, the court noted, the government could prohibit the Oscar-winning film American Beauty and cinematic productions of Romeo and Juliet. Not to mention productions of Vladimir Nabokov's disturbing Lolita or Cameron Crowe's Fast Times at Ridgemont High and Almost Famous.

Needless to say, no minors were exploited in the production of those movies. The same goes for another of the law's targets: computer generated images. By definition, these fakes, porno versions of the Emergency Medical Hologram on Star Trek Voyager, don't exploit children.

The government argued that even these simulations hurt children, on the grounds that they whet the appetites. Others argue that pornography relieves rather than causes sexual aggression. If the second position is true, virtual porn is a blessing. If the first is accurate, it may be an overall loser.

Ultimately, such decisions should not be left to social science, a set of disciplines whose rickety tools are about as reliable as a Henry Blodget stock pick. They need to be based on some fundamental principles. And the applicable principle here– one long venerated in the United States– is that the government should not interfere with free thought and its kin, free expression.

Fortunately, the Supreme Court agrees. "The right to think is the beginning of freedom, and speech much be protected from the government because speech is the beginning of thought," Justice Kennedy noted.

"To preserve these freedoms, and to protect speech for its own sake, the court's First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct. The government may not prohibit speech because it increases the chance that an unlawful act will be committed at 'some indefinite future time.'"

Let's hope the power grubbers across the street are paying attention.

Mike Lynch is the national correspondent for Reason, where this essay first appeared.