SCOTUS Scrotus: Kiddie Porn At One First

The Supreme Court is once again tackling the peculiar First Amendment problem posed by child pornography. If you think regular porno jurisprudence, with it's "obscenity exception" and talk of "community standards" and "I know it when I see it", is complicated then you really need to take a gander at kiddie porn. The Court has never held that child porno has any kind of First Amendment protection. But that doesn't settle the matter -- because the First Amendment still applies to everything else that isn't child pornography.

A few years ago the Court ruled that a federal law banning not only actual children but anyone who looked like a child from appearing in porn was unconstitutional because Juliet is 13 years old. Which is awesome, because every production of Romeo and Juliet I've ever seen definitely features hard core sex.

Yes, the Juliet example seems ludicrous, but I still agree with the decision. Too many works of art that portray children in sexual scenes could be targeted under the law. And the federal government shouldn't have the power to imprison people because of their thoughts, only their actions. Which is to say that if you jerk off while watching actual kids having sex, you have committed a crime. But if you jerk off while thinking about it then you should be protected. And watching film or video in which the performers are not children, and thus are not even potential victims of a child sex slavery ring, falls into the thinking category.

But Congress won't let this dog lie. They've tried again, this time making it not only illegal to own kiddie porn, but to tell other people you own it -- even if you do not own it! In the actual case, a child porn aficionado met a cop online and agreed to swap hardcore images of their own actual children. When he didn't get the goods, he got angry. Then he got arrested. He owned actual kidde porn, so he went to prison on those charges but was also charged with claiming to have porn of his daughter which he did not have. In fact, he didn't even have a daughter.

The Eleventh Circuit (last heard from when they murdered Terri Schiavo) ruled in the chomo's favor, saying the law was far too broad (although not necessarily saying it wasn't broad enough to catch him) and could effect people who own "legal child erotica." [No, I have no idea was "legal child erotica" is. Other than sexy naked pictures, I guess. But that still seems creepy.]

So now it's in SCOTUS land -- and nine elderly people discussing the minutiae of pornistic possibility is, of course, hilarious. I actually read most of the oral arguments in this case (and so can you! Right here! It's a pdf though, so be warned!) and it's pretty funny. In fact, I'm pretty sure the oral arguments alone constitute a material breach of the law in questions, so I'm about to be arrested just for telling you where to read it. Ooops!

As usual, Dahlia Lithwick does a great job at finding the funniest points, so read her. Here is a taste:

Justice David Souter asks what happens if you receive child porn in the mail and call the chief of police hollering, "I just received child porn!" Clement says you're safe. So Justice Antonin Scalia twists that hypothetical so that now you're calling the neighbor instead of the police, to observe, "I got this disgusting child porn in the mail." Clement concedes the statute might apply in that case. Justice Stephen Breyer asks what happens when kids are swapping child porn in the schoolyard. Clement says that to be liable under the PROTECT Act, you need not be selling or advertising the porn. It's enough to say you have it. The prospect of jailing huge packs of horny teens will soon dovetail beautifully with Kennedy's concern that documentaries about child rape in prisons be widely promoted.

Honestly, I think this may finally be the time the Court agrees with the government in a major porn case. Why? Because I don't see that the First Amendment is grievously injured. I don't believe for an instant that a video store clerk who told a customer that Traffic features some hot, under-aged vag pounding would be arrested under the pandering provision. Not only is Traffic not child porn, but no reasonable person could assume it is. So, if the only people harmed by the law are people who are claiming to have real child porn that they don't have, I don't see the First Amendment issue.

But I do think there's a problem, which I've talked about before, with creating nonexistent crimes. The defendant in this case is a man who really did owned child porn. Adding the charge of claiming to have porn he didn't have is unnecessary. The primary use of this law will not to be prosecute people whose only crime is claiming to have illegal materials. The primary purpose is to allow the government to stack charges to get tougher sentences. And I don't like that. If I claim to have something illegal, anything illegal, like marijuana or nuclear weapons or kiddie smut, and then it turns out I don't have them, well, how is that a crime?

How is it a crime to solicit sex in a public restroom even if you have no intention of actually having sex in public? How is it a crime to say dirty things to someone online who isn't even 13 but is, in fact, that douchebag from To Catch A Predator? How is it a crime to set up a sex date and then not show up and not have illegal sex? Sure, these laws may target people who are likely to have very real victims soon but that doesn't make it right. We cannot presume that certain behaviors lead inexorably to others. Making those earlier behaviors illegal doesn't help anyone.

After all, under the government's logic, it would be perfectly fine to charge John Mark Karr, who said he murdered Jon-Benet Ramsey even though he had not done so, with some kind of murder simply for claiming to have committed an illegal act. They could also make it illegal for me to go into a chat room and tell someone I have no intention of ever meeting that I am snorting cocaine right now even though I've never snorted cocaine in my life.

The government presumes a direct link between fantasy and reality that, for the vast majority of people, simply doesn't exist. And in the age of the internet, this is a very dangerous presumption indeed. The internet, by its very nature, encourages people to push the boundaries of social convention and identity. The chances of crossing the lines the government arbitrarily establishes are simply too great. Even if you think that the line they've drawn on child porn is acceptable, they have opened the floodgates for a whole range of chimerical crimes.

I haven't any sympathy for actual child pornographers. I don't have much more for soi-disant child pornographers either. I certainly don't believe child pornography has First Amendment protection. But if this case proves anything it's that the law in unnecessary. The guy wouldn't have gone free if the charges didn't exist. He committed the real crime. It's the imaginary crimes that should worry us all.