Staving Off the Thought Police

Last week, the Supreme Court overturned parts of the Child Pornography Prevention Act of 1996 that banned all representations of sex that appeared to contain children. This included both a ban on computer generated child pornography as well as a potential ban on the representation of sexual acts by consenting adults appearing as minors, as happened in the movies Traffic and Lolita.

Constitutionally, the court made the right decision. Real child pornography is a fundamental violation of a child’s human rights and is rightfully illegal. Virtual child pornography, on the other hand, is victimless and is merely, as Justice Anthony M. Kennedy wrote, “the visual depiction of an idea.” The Supreme Court has consistently held that it is not the government’s place to outlaw the expressions of thoughts which could only tangentially lead to a potential crime. Child pornography does not necessarily lead anyone to go and molest, abduct or rape just as a feigned murder, on screen or on stage, does not necessarily lead to violent outbursts. If the government were to outlaw virtual images of child sex, why should it allow scenes that depict murder, or even shoplifting?

Unfortunately, the new ruling will raise evidentiary problems, as child pornographers may be able to claim that the children they photograph are merely computerized fictions. Today, it is usually easy to tell what is digitally created and what is real, but as technology progresses it will be more and more difficult to tell the two apart. Criminals’ use of technology to evade the law is an ongoing problem, and the government will have to continue to address it. We can only hope that the government stays one technological step ahead of not only child pornographers, but all other forms of criminals as well.

While it is clear that child pornography is not only repulsive but psychologically twisted, it is not the government’s position to interfere with people’s personal thoughts, whether written, spoken or animated.