Law must protect both free speech and kids
Special to the Mercury News
June 13, 2002
At the risk of having my ACLU card revoked, I am frankly worried about the proliferation of ``virtual child porn.''
I have conflicting conflicts of interest when it comes to the recent Supreme Court decision to strike down a federal law against ``virtual child pornography.'' On one hand, I'm a member of the American Civil Liberties Union. I've even served as an expert witness in its effort to overturn the Children's Online Protection Act that would have restricted Internet access to some adult material on the grounds that it might be ``harmful to minors.''
But I'm also on the board of the National Center for Missing and Exploited Children (NCMEC) -- a national organization that leads the fight against child pornography and other practices that exploit and abuse children. NCMEC is concerned that the court's ruling could serve as a license to flood the Internet with images that ``are virtually indistinguishable from images of actual children,'' which could make it much more difficult to prosecute and convict those who traffic in pornography that involves real children.
The ACLU and NCMEC are on opposite sides of this issue, but I think it is possible to craft a law that helps protect children from predators without jeopardizing our free-speech rights.
While it has always been possible to draw images of children engaged in sexual activity, it is just now becoming possible to create computer images that look exactly like real children. Well-trained experts at the FBI and U.S. Customs Service can still tell the difference between virtual child porn and real porn, but we may quickly reach the point where even they have trouble.
I saw a convincing demonstration at a recent NCMEC board meeting where a graphic artist presented four images. Three were of real children and one was generated completely via Adobe Photoshop, without the use of any real photos. To my untrained eyes, the ``fake'' image looked every bit as real as the actual photographs. What's more, it's also possible to take images of fully clothed real children and remove the clothes and put them into sexual situations. Likewise, graphic artists can now morph innocent images of children with photos of actual people, making it appear as if the child is engaged in sexual acts.
The law that the court struck down covered these types of images but it also included other work that ``conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.''
"Let's get real here. Virtual porn is vastly different from artistic expressions of teenage love or even themes, such as in ``American Beauty,'' that involve sexual tension between adults and teens."
The court was concerned that the law could be used to prosecute producers of such movies as ``Traffic'' and ``American Beauty'' or plays like ``Romeo and Juliet,'' which depicted minors engaged in romantic or sexual situations, even if all of the actors were over 18.
In other words, like so many other congressional attempts designed to protect children, this one was overly broad. The court worried that same law that would have gone after those who generated the most vile and disgusting images might have also been used against producers of artistic works including popular movies.
Let's get real here. Virtual porn is vastly different from artistic expressions of teenage love or even themes, such as in ``American Beauty,'' that involve sexual tension between adults and teens.
Child pornography is a tool. If it were simply a means of satisfying the sexual fantasies of adults who have a sexual orientation toward children, one could argue that virtual child porn would be harmless or perhaps even beneficial if it were to cut back on the exploitation of real children. However, it's important to remember that child pornography has multiple victims, including but not limited to the children who are used to produce it.
The odds of your children being used in the production of child porn are overwhelmingly low, but that doesn't mean that your kids might not be victimized by it in other ways. Child porn is also used by pedophiles to justify their obsession with children, to stimulate their sexual interest and -- most cynically -- as a tool to lower a child's inhibition. It's not uncommon, for example, for a pedophile to show pictures of children engaged in sex acts as a way of helping to convince other kids that such activities are ``OK'' or even ``normal.''
A nascent industry is emerging to traffic in this now legal commerce. I recently looked at a Web site calling itself ``Virtual Child Porn Headquarters,'' which cites the Supreme Court ruling. ``With the law by our side, we are embarking on a marvelous journey, exploring the very frontiers of your rights as an American. Give me virtual child pornography or give me death!''
The teaser images on the free portion of this site, frankly, weren't all that disturbing -- they were obviously fake and not all that explicit.
What bothered me the most was the sites' marketing slogan, ``whetting the appetites of pedophiles everywhere.'' Pedophilia, by definition, involves exploiting children and the last thing society needs is to have their appetites whet.
Congress, as you may expect, is trying another tack. Representatives are working on versions that would be far more narrow, focusing specifically on images that are ``virtually indistinguishable from'' that of a pre-pubescent child engaging in sexually explicit conduct. ``Unlike the 1996 law that the court stuck down, the Child Obscenity and Pornography Prevention Act of 2002 doesn't appear to jeopardize ``Romeo and Juliet'' or any other work of art.
While I'm not yet certain about this particular bill, I am encouraged that there are members of Congress who seek a solution that protects both our kids and our constitution. Our democracy depends on free speech and to suppress it is to oppress our populace.
But we also depend on raising children who are free from other forms of oppression, including those who would abuse them for their own gratification.
As for me, I'm staying involved in both the ACLU and the National Center for Missing and Exploited Children.
