The Supreme Court is hearing testimony today on an interesting case, Ashcroft v. Free Speech Coalition. At issue is whether the government can ban pornography that involves consenting adults who appear to be under the age of consent (either naturally or by being digitally modified). One of the main arguments of the government is that such porn entices actual children into sexual exploitation. The centerpiece of the free speech advocate’s argument: who gets to decide whether a model appears to be a minor? Fascinating.


Jason. I’m pretty sure the case is not about who gets to decide whether a model appears to be a minor. Well, back up. That could be one of the many situations implicated by the statute. But, more important is the statute’s application to any depictions of what appears to be minors in certain sexual situations. The reason the statute exists in the first place (well, one reason) is that child pornographers can get around the kiddie porn criminal statutes by generating images by computer, rather than by using real minors. (Of course, another reason the statute exists probably is just that senators and representatives don’t like kiddie porn, no matter how it is made.) The government argues that the computer-generated kiddie porn images pose many of the same dangers as images of real minors (e.g., luring of children into such acts, or tending to contribute to child molestation). The real reasons the case is so interesting is that the Supreme Court has always treated kiddie porn different than other pornography because kiddie porn poses a special danger to the children involved. Thus, First Amendment rights falter when balanced against the State’s interest in protecting children. This case poses the interesting question of whether kiddie porn should still be treated differently when there is no child involved in its production.

Of course, I should place a caveat on all of the knowledge related above— it is based on a good story on NPR this morning by Nina Totenberg and my own hazy recollection of reading lower court cases on this issue a few years ago while at the Justice Department.

• Posted by: Noah on Oct 30, 2001, 2:57 PM

Dahlia Lithwick, in Slate, has written about the case. Scalia: “I’m trying to think of what works of art would be taken away from us if I can’t see adolescents copulating.”

• Posted by: Michael S. on Oct 30, 2001, 11:52 PM

Noah, the main crux of the free-speecher’s argument is that the government’s argument — that computer-generated porn, of adults who look like kids actually entices kids into porn — is crap.

If you read and believe the ACLU amicus brief (warning — PDF file), it appears that the government offered no evidence of this connection; instead, it deferred to Congressional “findings” that such a connection exists. The word findings appears in quotes because it literally appears to have been a Congressional declaration that such a connection exists; there again were no studies or evidence presented by or to Congress during the one-day hearings that were held on the issue. (My favorite parts of the brief are those that cite actual Congressional research from the 1970s that show that there exists no link between porn and sexual offenses.)

So in the end, you’re left with a law with a good intent — to protect minors — but with no evidence to support that it does that, and pretty obvious evidence that it infringes on liberties in so not doing.

• Posted by: Jason Levine on Oct 31, 2001, 12:50 PM
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