THE SUPREME COURT: Virtual Porn, Real Corruption - decision allowing virtual child pornography - Brief Article

National Review, May 20, 2002

The Supreme Court threw out a federal law banning "virtual" child pornography, including both computer-generated images of minors in sexual situations and depictions of minors in sexual situations by adult actors. If the Court had struck down the law because the Constitution reserves the regulation of pornography to states and localities, its decision would perhaps be defensible. But the Court's rationale for its decision was different.

It said that the First Amendment should be presumed to protect pornography that "records no crime and creates no victims by its production." The Court has long held that the amendment applies to states as well as to the federal government (ignoring the fact that it is explicitly directed at "Congress"). So if a state were to ban "virtual" pornography, the federal courts would be obligated under this ruling to block it. The ruling was thus an expansion, not a retrenchment, of federal power.

The Court -- and, it must be added, most of the proponents of the law - - construed the purpose of child-pornography laws too narrowly. The Court comes close to suggesting that virtual child pornography is a good thing, since it reduces the demand for pornography involving actual children: "[F]ew pornographers would risk prosecution for abusing real children if fictional, computerized images would suffice." But the harm done by child pornography is not limited to the harm done to children exploited in the course of its production.

There is also the harm to public morality, and to the many other children who will suffer if that morality declines -- if people who are attracted to sex with children, and the sexualization of children, are told that the law does not frown on this desire and behavior and that it even tolerates a subculture oriented around this desire. The making of "virtual" pornography inflicts that harm just as much as pornography involving actual children does.

For most of American history, nobody thought that the Constitution enjoined legislatures from enacting laws to protect public morals. Nobody doubted that such laws were legitimate even if they impinged on "free expression" (sex with a prostitute is an expression of lust, but it can be legally proscribed). Today's Court has a routinized distrust for democratic processes. In this case, it argued that prosecutors and juries would be unable to distinguish between obscenity and Romeo and Juliet. Our own view is that the general public can be trusted to draw the appropriate lines -- especially when the alternative is to hope that sexual deviants will themselves respect the line between enjoying depictions of sex against children and actually forcing sex on children.