Real and Fake Child Pornography
Monday's Supreme Court decision in United States v. Williams upholds against an overbreadth and vagueness challenge the federal Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today ("PROTECT") Act. Herewith, a few observations, beginning with the silly and moving to what I intend as a serious policy proposal.
1) Justice Scalia, who wrote the majority opinion, was apparently unamused by Congress's penchant for titling statutes with an eye towards descriptive acronyms (compare the USAPATRIOT Act). He said that Congress "produced legislation with the unlikely title of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 117 Stat. 650. We shall refer to it as the Act."
2) The challenged provision of the PROTECT Act forbids offers to provide not only genuine child pornography but also "any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains" child pornography, and defines child pornography in detail. It thus criminalizes "pandering" of virtual child pornography, so long as the panderer either believes the child porn is authentic or intends the target of the pandering to think it is authentic, or both. In a 2002 case, Ashcroft v. Free Speech Coalition, the Court had held that Congress could not apply the prohibition on possession of (non-obscene) child pornography to virtual child porn: Because the justification for forbidding child porn possession is the exploitation of children that occurs in producing it, where no real children are exploited, there is no basis for the prohibition, the Court said.
3) Dissenting in Monday's case, Justice Souter (joined by Justice Ginsburg) said that a pandering charge for virtual child porn also outruns the justification for the underlying prohibition. Is he right about that? I'm not sure, but it does strike me that both the majority and the dissent missed an important aspect of the issue.
4) The right question---or at least the right policy question---is what mix of prohibitions will shift demand for child pornography from real child porn (which exploits real children) to virtual child porn (which does not). How might we do that? The answer may depend on the tastes of pedophiles. Suppose, as seems plausible, that pedophiles prefer child porn that they believe shows real rather than virtual children. If so, the law ought to try to trick pedophiles into acquiring what they think is real child porn but is actually virtual child porn, because the latter doesn't harm real children. But the PROTECT Act gives a child porn peddler no incentive to do so. If the child porn peddler sells (or gives away) virtual child porn as though it were real, he is guilty of pandering, so he may as well sell (or give away) real child porn, and will choose to do so if real child porn is cheaper, which the government claims it is. By contrast, absent the PROTECT Act, the peddlers of child porn would risk prison for distributing real child porn but not for distributing virtual child porn as though it were real, and so would have an incentive to spend some extra money for the "safe harbor" of virtual child porn.
5) Although the analysis above leads to a solution that is consistent with the position taken by Justice Souter in dissent, his argument is all about preserving protected speech. I'm suggesting that he missed an opportunity to argue that in this instance the more speech-protective position may also end up being the more child-protective position.
6) Might Congress be interested in this analysis as a policy position? I suspect not. Despite the fact that child porn prohibitions are justified by reference to the exploitation of children that occurs in the creation of child porn, I suspect that many (probably most) legislators also vote for such prohibitions because they find the material disgusting, and I'll admit that I too find the idea of people being sexually aroused by children highly distasteful. But if no actual children are harmed in the making of the child porn and if looking at child porn does not make a pedophile more likely to molest an actual child than he otherwise would be, then the fact that we find the pedophile's tastes disgusting shouldn't be a basis for regulation---at least not when the underlying regulation may actually increase the risks to children.
Posted by Mike Dorf
1) Justice Scalia, who wrote the majority opinion, was apparently unamused by Congress's penchant for titling statutes with an eye towards descriptive acronyms (compare the USAPATRIOT Act). He said that Congress "produced legislation with the unlikely title of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 117 Stat. 650. We shall refer to it as the Act."
2) The challenged provision of the PROTECT Act forbids offers to provide not only genuine child pornography but also "any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains" child pornography, and defines child pornography in detail. It thus criminalizes "pandering" of virtual child pornography, so long as the panderer either believes the child porn is authentic or intends the target of the pandering to think it is authentic, or both. In a 2002 case, Ashcroft v. Free Speech Coalition, the Court had held that Congress could not apply the prohibition on possession of (non-obscene) child pornography to virtual child porn: Because the justification for forbidding child porn possession is the exploitation of children that occurs in producing it, where no real children are exploited, there is no basis for the prohibition, the Court said.
3) Dissenting in Monday's case, Justice Souter (joined by Justice Ginsburg) said that a pandering charge for virtual child porn also outruns the justification for the underlying prohibition. Is he right about that? I'm not sure, but it does strike me that both the majority and the dissent missed an important aspect of the issue.
4) The right question---or at least the right policy question---is what mix of prohibitions will shift demand for child pornography from real child porn (which exploits real children) to virtual child porn (which does not). How might we do that? The answer may depend on the tastes of pedophiles. Suppose, as seems plausible, that pedophiles prefer child porn that they believe shows real rather than virtual children. If so, the law ought to try to trick pedophiles into acquiring what they think is real child porn but is actually virtual child porn, because the latter doesn't harm real children. But the PROTECT Act gives a child porn peddler no incentive to do so. If the child porn peddler sells (or gives away) virtual child porn as though it were real, he is guilty of pandering, so he may as well sell (or give away) real child porn, and will choose to do so if real child porn is cheaper, which the government claims it is. By contrast, absent the PROTECT Act, the peddlers of child porn would risk prison for distributing real child porn but not for distributing virtual child porn as though it were real, and so would have an incentive to spend some extra money for the "safe harbor" of virtual child porn.
5) Although the analysis above leads to a solution that is consistent with the position taken by Justice Souter in dissent, his argument is all about preserving protected speech. I'm suggesting that he missed an opportunity to argue that in this instance the more speech-protective position may also end up being the more child-protective position.
6) Might Congress be interested in this analysis as a policy position? I suspect not. Despite the fact that child porn prohibitions are justified by reference to the exploitation of children that occurs in the creation of child porn, I suspect that many (probably most) legislators also vote for such prohibitions because they find the material disgusting, and I'll admit that I too find the idea of people being sexually aroused by children highly distasteful. But if no actual children are harmed in the making of the child porn and if looking at child porn does not make a pedophile more likely to molest an actual child than he otherwise would be, then the fact that we find the pedophile's tastes disgusting shouldn't be a basis for regulation---at least not when the underlying regulation may actually increase the risks to children.
Posted by Mike Dorf
posted by Michael C. Dorf @ 12:01 AM
8 Comments:
At 4:38 AM,
Caleb said…
"if looking at child porn does not make a pedophile more likely to molest an actual child than he otherwise would be..."
My guess would be that underlying the act (and perhaps the willingness on the judges' part to uphold the law) is a gut feeling that this assumption is wrong - or even that the chance of harm if it is wrong in one case outweighs the harm from banning it. (Not that I have any empirical evidence on the proposition)
At 9:13 AM,
Michael C. Dorf said…
In response to caleb, let me be slightly more precise: There probably are some pedophiles for whom child porn acts as a stimulant towards molestation but other pedophiles for whom child porn acts as a substitute. The relevant empirical question is which effect is larger. Conventional free speech doctrine would place the burden on the govt of showing the former effect dominates. Even then, this rationale is NOT the stated justification for treating child porn as worse (constitutionally speaking) than adult porn, because one could run the same calculus for adult porn (as the Meese report attempted to do back in the 1980s).
At 12:55 PM,
egarber said…
This post has been removed by the author.
At 12:58 PM,
egarber said…
So under this ruling, would someone have a first amendment right under these circumstances?
1. An email sender drew a cartoon depicting child pornography, so he knows it's not real.
2. The email subject reads: Here's a cartoon of kids in sexual positions.
(Assume nothing is obscene in the material.)
At 2:07 PM,
Michael C. Dorf said…
Justice Scalia addresses just this example (more or less) in his opinion and says that the law doesn't reach such conduct but that if it does, there would be an as-applied challenge.
At 10:54 AM,
Hillary said…
Your original article said, "If looking at child porn does not make a pedophile more likely to molest an actual child..." and your follow up comment indicated that this question must be considered in the
conglomerate, which allows for the possibility that some pedophiles are more likely to molest children after having looked at either real or fake porn. I think even a few extra cases of molestation (and the devastation for the child and future generations that ensues) is enough to weigh the balance in favor of the state interest of protecting children from molestation.
That said, I think this analysis misses a bigger question...would legalizing "fake" child porn make the act of having sex with children more "normal."
While criminals will not abstain from a behavior because the act is illegal, law abiding citizens will often do so. Take marijuana and alcohol as examples. Law abiding citizens will drink alcohol because it is legal and abstain from smoking marijuana because it is illegal. Those same people would be likely to reverse behaviors if the laws reversed the legality of each mind-altering substance.
If the government makes fake child pornography legal, it sends the message that watching children be molested by adults is normal, or at least acceptable, and so people who are curious, but law abiding, people will be more likely to watch the fake videos. The more normal or acceptable the behavior becomes, the more likely it is to result in actual action.
At 11:01 AM,
Hillary said…
To address your article's concern about making fake child pornography more appealing than real child pornography for the criminals who will engage in the behavior anyway, there is an easy solution of assigning different penalties for each. If the child pornography depicts real children, the person who made the video would be subject to life in prison or death. People who distributed or bought real child pornography would be subject to a term of years in prison. People who distributed or bought fake pornography would be subject to a lesser term of years in prison. With this arrangement, the government properly protects children from actual molestation and also sends the message that any depiction of brutalizing a child sexually is wrong.
At 2:00 PM,
egarber said…
If the government makes fake child pornography legal, it sends the message that watching children be molested by adults is normal, or at least acceptable, and so people who are curious, but law abiding, people will be more likely to watch the fake videos. The more normal or acceptable the behavior becomes, the more likely it is to result in actual action.
If we used this rule for legal guidance, wouldn't we have to ban all speech about murder? After all, if murder is depicted fictionally, people can become desensitized to it. The Sopranos for instance, certainly attaches a certain glamor to killing; the message might be that violent revenge is acceptable on some level.
On the general thinking, I don't think it's accurate to equate a court ruling that limits government reach with government approval of all possible uses of that liberty. Indeed, the whole point is to make those zones of liberty beyond the government's awareness and cognizance.
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