Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
I agree completely with Sandefur about the Karen Fletcher case, where a woman from Pennsylvania has plead guilty to child pornography charges for writing fictional stories that depict the sexual abuse of children. Those charges are clearly contrary to Supreme Court precedent and to the first amendment. Sandefur does an excellent job of explaining the difference between laws that prohibit the production of child porn, the possession of child porn and the fictional depiction of child porn and why the first two may be punished within the scope of the first amendment and the last cannot.
The reason it's illegal to manufacture child porn is obvious: it violates the rights of children; they are too young to consent to sexual acts, and therefore it violates their rights to make them do things of that sort.The reason possessing it is illegal is a bit more complicated: the law is that possession and distribution contributes to the black market that exists for child porn, and because the manufacturing of it is so heinous. In New York v. Ferber, 458 U.S. 747, 756-64 (1982), the Supreme Court explained that the First Amendment does not bar the state from prosecuting people for selling child pornography for five reasons: first, the need to protect children was obviously very strong, much stronger than the need to protect, say, adult porn actors. Second, "[t]he distribution of photographs and films depicting sexual activity by juveniles" is much more closely related to the actual abuse of children than adult pornography, id. at 759, because it leaves a permanent record of the child's exploitation, and because it is "difficult, if not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies." Id. at 758-60. Third, the economic motives involved create a special incentive to the abuse of children even though that abuse is illegal in every state. Fourth, there is very little value in protecting "live performances and photographic reproductions of children engaged in lewd sexual conduct." Id. at 762. And finally, precedent did not bar the Court from taking the position that child porn has no First Amendment protection.
Similarly, in Osborne v. Ohio, 495 U.S. 103 (1990), the Supreme Court held that the First Amendment is not violated when a person is prosecuted for possessing child porn, because: (1) the state was not trying to control what the consumer of porn was doing, or asserting "a paternalistic interest in regulating Osborne's mind," id. at 109, and (2) because it was "reasonable for the State to conclude that it will decrease the production of child pornography if it penalizes those who possess and view the product, thereby decreasing demand." Id. at 109-10.
So while the First Amendment would not allow the state to try to force people to stop consuming pornography by simply making it illegal, the First Amendment does allow the government to protect child victims by trying to shut down the market as a whole, and that includes prosecuting makers and sellers of photographic material.
In Ashcroft, the court held that a law against "virtual" child porn--in which no actual children were involved in the production--was unconstitutional. The government argued that the market for virtual, computer-created child porn helped foster a market for the real thing, and that it was hard for prosecutors to tell the difference between the real stuff and computer-generated material. The Court rejected this argument for "turn[ing] the First Amendment upside down." 535 U.S. at 255. It noted that such an argument would "allow[] persons to be convicted in some instances where they can prove children were not exploited in the production," id. at 256, which is clearly unconstitutional because it would "leave[] unprotected a substantial amount of speech not tied to the Government's interest in distinguishing images produced using real children from virtual ones."
Perhaps the prosecutor would like to posthumously indict Nabakov?
Politics
Comments
Posted by: tincture | August 7, 2008 10:00 AM
The government argued that the market for virtual, computer-created child porn helped foster a market for the real thing, and that it was hard for prosecutors to tell the difference between the real stuff and computer-generated material.
How is that "hard?" If a real person testifies under oath that he/she saw real children used for porn purposes (or that he/she was so used), then it's "the real thing." Otherwise, there's no case.
Posted by: Raging Bee | August 7, 2008 10:12 AM
Sounds like someone had a bad attorney.
Posted by: Reed A. Cartwright | August 7, 2008 10:16 AM
I don't understand why the defendant plead guilty here. Mary Beth Buchanan overstepped her bounds yet again, I can't believe she is getting a guilty plea this time.
Posted by: nicole | August 7, 2008 10:19 AM
What next?
Bookseller caught with books depicting kidnapping, attempted murder and cannibalism of children.
Posted by: Dr X | August 7, 2008 10:23 AM
The problem is that this is protected speech, but it is political suicide for anyone who says so. If the courts rule in favor of it being protected speech, it would become prefect cannon fodder for those arguing about 'activist' judges.
Rage Bee,
It would be difficult, because the only people who know whether or not the images are real, are mostly likely the people that would be charged. They have a vested interest to say they were faked. Also you can tweek a real image to make it look fake.
Posted by: Thoracantha | August 7, 2008 10:25 AM
Okay, so the woman is extremely agoraphobic and ostensibly plead guilty to avoid being outside her home long enough for a trial. Nice pick, Ms. Buchanan. Luckily Ms. Fletcher will only be sentenced to house arrest, which won't really affect her lifestyle, but I hate to see this woman win a prosecution like this.
Posted by: nicole | August 7, 2008 10:26 AM
If you start with the assumption that this sort of material is going to be produced, it would be better if they don't try to prosecute the virtual stuff. Why should the producers risk jail time if they don't have to?
Posted by: Taz | August 7, 2008 10:41 AM
Thoracantha: I was thinking mostly of any actual children found in a raid: if the cops raid a site and find kids, then the presence and testimony of those kids becomes evidence. If they don't find kids, and can't locate any kid with a provable connection to the incident, then the lack of kids diminishes the prosecution's case.
I was also thinking of accomplices of neighbors who might have seen kids being taken in and out of the site.
Posted by: Raging Bee | August 7, 2008 10:58 AM
This brings to mind the literotica web site. They host user submitted erotic stories. They used to post anything. But a few years ago they went through the stories and purged anything involving sex with minors or animals. Yet they left the rape stories alone. I've sometimes wondered why. It doesn't seem to be a moral stand, as they still host stories that include aliens that look like children or sex with mythical animals, replace child with child-like Galgemek or horse with unicorn and no problem.
So I figured it had to be for legal reasons. But I've never been able to figure out what laws could possibly be applied to fiction writing and what justifications might be employed to support such censorship. That the stories contribute the overall market is at least an answer, if one I find to be ridiculous.
Posted by: Abby Normal | August 7, 2008 11:27 AM
Posted by: Flavin | August 7, 2008 11:32 AM
This is madness. This curtailing of First Amendment rights in the name of protecting people from squeamish material has got to stop.
Posted by: Sadie Morrison | August 7, 2008 11:46 AM
The Gelgamek vagina is three feet wide and filled with razor-sharp teeth! Do you really expect us to have sex with them?
Posted by: Troublesome Frog | August 7, 2008 12:20 PM
Simulated "child sex" includes everything from stores, graphic novels, animated features like some Japanese Hentai, young looking adult models, and even normal movies which includes teenage sex as part of the storyline.
I believe that all of these have been attacked by law enforcement at one time or another under the guise of "protecting children". Most of those it is obvious that they don't involve actual children.
Even if the woman here plead to house arrest, she will probably still be on a sex offender registry somewhere which will ruin the rest of her life.
Posted by: Reed A. Cartwright | August 7, 2008 12:21 PM
Let's see, you create a system where stories and virtual material carries no penalty, and actual material carries draconian penalties. Wouldn't that tend to reduce the actual stuff in the long run?
Then they're left with; "Oh, but even the virtual stuff fuels an appetite for paedophilia", which is a tough sell.
Posted by: decrepitoldfool | August 7, 2008 12:22 PM
Hey Ed--you just posted about child pornography--you ought to be arrested! Oh crap--now I just wrote a comment about child porn--I ought to be arrested!
Posted by: mark | August 7, 2008 1:00 PM
Speaking of Nabakov, why haven't they charged their local libraries and bookstores as distributors?
Posted by: SeanH | August 7, 2008 1:52 PM
re: SeanH
But that's not porn, that's literature.
/sarcasm
Posted by: Sivi Volk | August 7, 2008 6:08 PM
How would the sort of people who feel the need to ban literature that weirds them out know what libraries contain?
Posted by: Azkyroth | August 7, 2008 8:04 PM
And then there's the Bible where I'm sure not all the women married would have been over the age of consent!
Posted by: Michael | August 8, 2008 12:01 AM
"it violates the rights of children; they are too young to consent to sexual acts"
I disagree. I don't think kids are raping each other every time they have sex, and I am vehemently against laws that enforce that notion. Children cannot meaningfully consent to having sex with ADULTS, because of the huge maturity and power difference.
Posted by: Hari Narayan | August 8, 2008 12:19 AM
Hari:
I don't think the principle that children are too young to understand sex leads to that idea. After all, if children are too young to understand there can't be mens rea when 2 children have sex and no mens rea means no crime (or at least there shouldn't be.
Posted by: James K | August 8, 2008 2:09 AM
The womans's acton is small change.
For a real First Amendment issue, consider Dawkin's call to consider all relgious education of children by parents child abuse...and you know that is what he is calling for so skip all the evasive bullshit.
And what do you do with child abusers? You lock em up. That is what the atheists have in store for believers, and that will be the new tactic in the next generation.
Just another reason why no atheist is fit for political office.
Posted by: Emanuel Goldstein | August 8, 2008 2:56 AM
Nice highjack, Emanuel!
Posted by: Gingerbaker | August 8, 2008 9:00 AM
So Emanuel, how long have been into child pornography?
Posted by: Taz | August 8, 2008 9:10 AM
Damn, he's on to us. Time to call an emergency meeting. Taz, notify the others. Gingerbaker, you bring the infant sandwiches. I've got the Kool-aid.
Posted by: Abby Normal | August 8, 2008 9:50 AM
"I don't think the principle that children are too young to understand sex leads to that idea."
Logically it doesn't have to, but it too often does. There are many parts of the country where kids CAN get in legal trouble for underage sex.
Posted by: Hari Narayan | August 8, 2008 7:20 PM
Won't be too long before we have, or perhaps we already have them,The Mind-Cops who will arrest you for what they think that you are thinking about sexually. And there won't be such a thing as consensual sex, cause we'll all be sex offenders. Welcome to the new Law and no Order society.
Posted by: Doug. | August 18, 2008 3:59 PM
what about a work of fiction that has underage kids engaging in mastrubation, or watching two adults have oral sex? Is that porn? I hope I have not disgusted anyone too terribly, but there is a teacher at our local school who has written such a book. The administration is turning a blind eye to it stating 1st amendment rights and the fact that the teacher never brought the book to the school. But to teach kids and then write such a perverse book. Should they not have every right to fire him? Thank you
Posted by: g yoong | February 15, 2009 6:49 PM
Nope. No right whatsoever. Not even to protect the kids. "Won't somebody please think of the children!"
Re-read the Constitution.
Posted by: LanceR, JSG | February 15, 2009 8:42 PM