SCOTUS nixes CPPA
Though that may sound like a Variety headline ("Stix Nix Hix Pix"), it's just legal shorthand: today, the Supreme Court of the United States invalidated the Child Pornography Protection Act of 1996, ruling it unconstitutionally broad and against First Amendment principles without adhering to prior court precedents.At first, this seems incredibly distasteful to just about everyone. CPPA banned "virtual" child pornography -- movies or images that appear to be of underage people having sex but that, in reality, involved no underage people having sex. For example, CPPA would have banned 18-year-old actors from pretending to be under 18 in sexual scenes, or pictures of children manipulated in Photoshop to look like they're engaging in sexual activity.
Who would be against that? After all, who would want to look at pictures of kids even apparently having sex? Congress responded with CPPA when some Internet "kiddie porn" rings were busted and the people found with images said that they weren't real kids, just simulated kiddie porn. Just as pornography isn't always protected by the First Amendment, kiddie porn isn't either and simulated kiddie porn is certainly the same way.
That's the wrong idea. CPPA proponents are trying to punish the people who might want to view this dreck, and that's constitutionally the same thing as trying to stop its creation. The Supremes wisely ruled that's not permitted.
No, no, wait, wait. Hear me out.
Material is "pornography" and subject to First Amendment restrictions only if, as a whole, it "appeals to the prurient interest" (that is, it's intended solely to arouse someone) and "has no social or artistic redeeming value." Works that contain sexual content but have artistic merit -- like Romeo and Juliet -- are protected, as are works that don't appeal to the prurient interest (like photographs of children that just happen to be naked, like in bathtubs or in tribal villages).
"Child" pornography gets a special exemption above this because, by definition, it involves putting children in sexual situations, and that's abusive. You can't take a picture of a 10-year-old engaged in sexual activity unless there is a 10-year-old engaged in sexual activity. Since the very situation being photographed is a major felony in all 50 states, the Supreme Court has allowed banning the material itself because its creation is abusive to children, and its distribution once it exists continues the act of abuse.
That's the key -- kiddie porn is more illegal than porn because, by definition, it requires kids to participate. Adults can legally consent to sexual activity, kids can't.
So what if the images involved aren't really kiddie porn -- they don't involve kids, or don't involve real people at all? They can still be called "pornography" if they appeal to the prurient interest and have no redeeming value. But that's not what CPPA said. CPPA said that any work that appeared to depict children in sexual situations was itself kiddie porn, subject to all legal kiddie porn restrictions. Pictures of naked children, Romeo and Juliet, American Beauty, and completely-invented digital images that involved no actual children of any kind would all be banned.
The Court correctly ruled, 6-3, that this was unconstitutional. It declared a broad class of works "porn" without applying the test of prurient interest or artistic merit. That was permissible for real kiddie porn because real kids were involved, but CPPA banned simulated kiddie porn. There were no children involved to protect. Without the actual participation of children, the work is no different than any other and must be treated like any other work.
In other words, take any work of "simulated" kiddie porn and imagine that all of the humans in it are over 18. If it would still be pornography, it can be treated as such. If it would not be pornography with all-adult participants, it's not pornography if some of them are simulated teens or children. Mind you, it is still "kiddie porn" if any participants are underage, and that's clearly (to me) the right decision.
CPPA attempted to ban simulated kiddie porn for two reasons: Congress didn't want anyone looking at it, nor did it want law enforcement to have to deal with a defense that digital images found on the Internet or someone's hard drive "weren't real." Each issue is understandable but not Constitutional.
People who want to look at images of kids having sex probably need help, but just like people who watch violent movies, there is nothing illegal about viewing simulations of illegal behavior. It's only illegal if you participate in it, not simulate it. No one would argue that pretending to take drugs should be illegal, nor pretending to get in a fight or pretending to be violent. Pretend kiddie porn gets the same protection even if I find it horribly distasteful. That's what a Contitutional guarantee is all about.
The law enforcement angle is equally unsupportable. You are innocent until proven guilty in the US. The police may not stop and question you until they find something wrong, they have to suspect you did something wrong first and then question or arrest you, and the courts must agree they had cause to suspect you of something. This basic presumption of innocence means law enforcement has to prove you did something wrong. The very idea that it's OK if you didn't really do anything wrong as long as it looks like you did is anathema to American liberties and must be resisted at every turn, no matter how nasty the people it winds up defending.
CPPA tells law enforcment it's OK if no actual children were at risk, because if it appears they were and the police can't tell the difference, that's good enough to imprison you. In their dissent of the decision, Rehnquist and Scalia particularly appealed to this argument, writing, "the computer-generated images are virtually indistinguishable from real children." So what?? If no "real" children are involved, the images are no different from any other form of pornography.
The dissent is very scary. Rehnquist and Scalia can't imprison you for having pornography that they don't want you to see because they don't have the majority, but they want to carve out exceptions for that pornography if it appears to be worse than it is. The only reason the Court allowed limiting free expression further for kiddie porn was because it harmed actual children. Under CPPA, that limit extended to imagining it was harming actual children, and every free speech lover in the country should have said, "No, no more. As nasty as this stuff is, they have a right to create and view it as long as kids aren't being harmed."
Supporting CPPA is supporting the notion of "thought police." The scary thing is that the Chief Justice of the United States and an Associate Justice held up by the current US President as a "model" for any future appointees have no problems being your thought police.
SCOTUS nixes CPPA
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