[Eric is a longtime warrior on behalf of free expression. I've translated his article from, ugh, Microsoft Word form to text, which has wrinkled the article's formatting a little. But it should be readable. Eric, BTW, is talking not about the obscene-for-minors-to-read COPA case, but the morphed-nude-images-of-minors CPPA child porn case. Both are before the Supreme Court. --DBM] ******** Date: Thu, 20 Sep 2001 20:40:24 -0400 From: "Eric M. Freedman" <lawemfat_private> To: declanat_private A piece of mine from the August issue of Communications of the ACM. Best. -E. Eric M. Freedman --- Pursuing Pixelized Pixies This fall, in Ashcroft v. Free Speech Coalition, the Supreme Court will be deciding the constitutionality of a remarkable statute that broadly criminalizes the dissemination of all depictions that Aappear to be@ ones of children engaging in Asexually explicit@ conduct notwithstanding that the images were generated purely digitally, without the use of any actual children (or adult actors for that matter) at all. According to the legislative findings supporting the Child Pornography Prevention Act, viewing the forbidden pictures Acan desensitize the viewer to the pathology of sexual abuse or exploitation of children, so that it can become acceptable to and even preferred by the viewer.@ Moreover, say the findings, such images create an unwholesome moral environment. Further, according to advocates of the statute, the government will never be able to prosecute pornographers if it must bear the burden of proving that the images are of real rather than digital children. If it applies ordinary constitutional rules, the Supreme Court will with little difficulty reject these defenses and affirm the decision of the United States Court of Appeals for the Ninth Circuit to strike down the challenged portions of the statute. In 1959, the State of New York sought to prevent dissemination of the movie version of ALady Chatterley=s Lover@ on the basis of its Apresentation of adultery as a desirable, acceptable and proper pattern of behavior.@ The Supreme Court unanimously rebuffed the effort, holding that the State=s action Astruck at the very heart of constitutionally protected liberty.@ AIt is contended,@ wrote Justice Potter Stewart, Athat the State=s action was justified because the motion picture attractively portrays a relationship which is contrary to the moral standards, the religious precepts, and the legal code of its citizenry. This argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper no less than advocacy of socialism or the single tax. And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing.@ Thus, in 1986, the Court summarily struck down an Indianapolis ordinance criminalizing those sexually-themed works that had the effect of subordinating women. Perhaps the material at issue had socially undesirable consequences, the lower court wrote, but, Athe state may not ordain preferred viewpoints in this way.@ And even when the Court upheld broader suppression of sexually explicit works involving children, so as to afford physical protection to real children involved in abusive productions, it took pains to note that producers could always convey their message by such means as using adult actors who appeared to be younger. As to the prosecutorial convenience argument, it is hardly a constitutional response to the government=s inability to bear the burden of proof in a criminal proceeding to pass a statute relieving the government of the need to do so. Practically speaking, this means that in the very rare instances when defendants have the courage to force such cases to trial, the government will have to offer proof (e.g. from other participants in the production) in addition to the images themselves. More broadly, the statute rests on premises and language of stunning vagueness, that together could lead to consequences that would eviscerate the First Amendment as a protector of unpopular speech. For example, one rationale offered for the legislation is that pedophiles might seduce children into engaging in sexual activity by displaying computer-generated images of other children doing so. This rationale would not only support the banning of lollipops, but also of a huge range of images -- including photographs made with mannequins, and cartoons. And, read literally, the statutory ban on images that Aappear to be@ ones of children would support this result. This could have the effect of outlawing classical works of art featuring cherubs, photographs of primitive tribes, and many other depictions that could hypothetically be abused by a criminal. That is precisely why the Court has historically rejected justifications for censorship that are based upon the possible responses of some peculiarly vulnerable subset of the population. For example, in Butler v. Michigan, it unanimously reversed a conviction under a statute outlawing any publication Amanifestly tending to the corruption of the morals of youth.@ Justice Felix Frankfurter wrote that the effect Aof this enactment is to reduce the adult population of Michigan to reading only what is fit for children. It thereby arbitrarily curtails one of those liberties of the individual . . . that history has attested as the indispensable conditions for the maintenance and progress of a free society.@ As Justice Louis Brandeis stated the broader principle on another occasion, AAmong free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly.@ In other words, if someone visits a website and is motivated to commit a murder, punish the murderer not the site owner. Despite all of this, there is some danger that the Supreme Court may uphold the statute at issue in Ashcroft. And the danger arises from more than the simple fact that the words Asex@ and Achildren@ appear in the same paragraph. Historical experience -- with, among others, printing presses, secular dramatic troupes, photographs, movies, rock music, broadcasting, sexually explicit telephone services, and video games -- shows that each new medium is seen at first as uniquely threatening, because uniquely influential, and therefore a uniquely appropriate target of censorship. And the response of the Supreme Court to such developments has been mixed at best. In 1915, for example, it held movies to be outside of the First Amendment, in a case that it did not overrule until 1952. This is the backdrop against which we currently find governments reacting with near-hysteria to the possibility of the creation, dissemination and viewing through the use of computer technology of messages even vaguely related to sexuality. Unfamiliarity makes this new medium seem particularly dangerous, and governments are haunted by the fear that the mechanisms of communications may be outrunning those of control. So the authorities worry that neither the doctrinal categories nor the substantive content of current First Amendment law are adequate to deal with emerging problems. If they were to ignore the lessons of history, the courts might vindicate special restraints by simply declaring that Acyberporn@ presents unique threats and is therefore Aoutside@ the First Amendment. The common pattern of legal response to new communications technologies reflects the reality that new media achieve their initial marketplace success precisely because they are for some purposes a more effective form of communication than pre-existing ones. Thus, photographs were a special target of censorship efforts in the 19th century because they were so much more realistic than painting. As one historian has described, audiences of that period viewing magic lantern shows Awere often so shocked by the portrayal of this new and terrifying world that they fainted, cried, or talked back to the magic lantern screen.@ And early in the 20th century, audiences for Thomas Edison=s first movies, confronted with the spectacle of a locomotive heading right for them fled the theaters in horror. Moreover, in every century one of the first uses of innovative communications technologies has been the transmission of sexual images, and one of the next has been communication in the furtherance of political dissent -- thereby further exacerbating the authorities= concerns for social stability. The courts should enforce the First Amendment in the context of new media just as they do in the context of old ones, and recognize the damage that groundless fears may do to public discourse. In time, a consensus will arise that the first reaction to the perceived threat of pixelized pixies in cyberspace was as overblown as with other new media. Meanwhile, the courts, in the interests of social, political, and artistic progress, need to apply the First Amendment in a technology-neutral way and eschew the temptation declare certain categories of speech Aoutside@ the First Amendment. The whole point of the First Amendment, after all, is to preserve the possibilities of the future by denying the majority the right to suppress speech it finds hateful in the present. ------------------------------ Eric M. Freedman (Lawemfat_private) is a professor of law at Hofstra University School of Law. ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. 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