Dmytro Taranovsky January 27, 2008 Modified: December 7, 2008 Free Speech and Child Pornography The contention that child pornography is not protected by the First Amendment is dependent on the view that freedom of speech does not create unconditional rights but instead creates interests to be balanced against competing interests. It is then argued that for child pornography, the First Amendment interests are weak and are outweighted by the following alleged competing interests: (1) distribution of child pornography creates an incentive for and hence promotes harmful production of child pornography (2) distribution of child pornography harms the children depicted and violates their privacy (3) child pornography induces the viewers to have immoral thoughts that lead to immoral acts. The balancing view of the First Amendment is incorrect and is refuted by the First Amendment's text: "The congress shall pass no law ... abridging the freedom of speech". "No law" means no law, and it is non sequitur to argue that since a statute's abridgement of the freedom of speech is narrowly tailored to serve a compelling governmental interests, the statute does abridge the freedom of speech at all. The core of the First Amendment is thus a categorical limitation on governmental power and not merely an interest to be balanced away. Expressive speech and conduct comes in a variety of forms, including oral speech, gestures, writings, music, and movies. However, as confirmed by the rise of the digital technology, the expressiveness in all these forms of communication is that of communication of information, and a piece of information is equivalent to a natural number, a number like 0, 1, 2, or 3, though in practice much bigger integers are used. The core of the First Amendment is that every integer is protected by the freedom of speech. This includes those integers that encode child pornography. But even if we were to accept the Supreme Court's current First Amendment balancing framework, the prohibition on child pornography must fail. The most frequently raised argument against child pornography is that its distribution creates an incentive for sexual abuse of children to record child pornography for profit. However, for such an incentive to exist, there must be compensation paid to the producers, so the above-mentioned governmental interest would be served just as well by stopping such compensation. An example of a more narrowly tailored law is to require primary distributors of child pornography to send a copy of the whole work electronically to a special website so that potential buyers of child pornography can instead download it there for free or for a nominal cost. Such legalization of child pornography may in fact decrease its production. The current underground system contains hidden incentives for child pornography production, incentives that may be wiped away by the suggested legalization. Greater availability of child pornography reduces the incentives to record child pornography. For example, if 10 adults want to see a particular type of image but cannot share child pornography with each other, they might each use a separate child (for a total of 10 children) to obtain the images, but if sharing of child pornography is legal, it may be enough for one child to be used and images shared with all 10 adults. Finally, much of child pornography is produced primarily for personal use and enjoyment of the adult, rather than to make a profit, and such production is largely unaffected by whether distribution of child pornography is legal. Additionally, the legal definition of child pornography is very broad and the harm of child pornography production has been overstated. The acts depicted in child pornography need not be abusive. Child pornography may involve simple nudity, masturbation, or sex between children or adolescents. Masturbation is considered normal at any age, and consensual sexual interactions between children or adolescents of the same age are considered non-abusive. A 17 year old boy snapping an erotic picture of himself can hardly be considered as engaging in self-abuse. It is also argued that distribution of child pornography is harmful to the children depicted and violates their privacy. The governmental interest in the children's right to privacy is certainly compelling. However, privacy as a right covers direct interaction with the child (such as recording of the child's sexual behavior), and not to the distribution of potentially embarrassing information by persons who received the information through no legal fault of their own. Instead, the issue here is a generalized interest of the child against being discriminated on the basis of these photographs. A typical use is to download child pornography from the internet (assuming that child pornography is available there) and to privately enjoy the images. Since there is no interaction with the children portrayed, the children are not harmed in any way. To say that a child is abused everytime someone views the picture is like saying that a person is shot everytime someone watches a video of a person being shot. Ironically, many children are expected to be naked (even if they have an erection) in front of friends and strangers in certain public areas such as locker rooms and showers. A pornograghic picture might not be any more revealing that that. Moreover, the argument from privacy fails because distribution of the images is prohibited regardless of whether persons depicted grant consent. It is argued that the children depicted are in no position to give legal consent. However, while that may be true at the time the pictures are taken, the issue is consent at the time the pictures are distributed. If the child depicted becomes an adult and gives informed consent to distribution of the pictures, then a ban on such distribution serves no legitimate privacy interest. Moreover, the law has recognized the parents' right to give informed consent to distribution of information when a child's consent is deemed insufficient. It is also argued that child pornography induces immorality and can be prohibited on that ground. However, that argument was rejected by the Supreme Court in Aschcroft v. Free Speech Coalition. Societies frequently hold wrong moral beliefs, and to allow suppression of speech on the ground of immorality would allow suppression of beliefs--whether they are right or wrong--that are inconsistent with the societal views. The very purpose of freedom of speech is to permit arguments and persuation for the views that the authorities might find abhorrent, and suppression of speech on the ground of immorality is incombatible with this purpose. Having examined the arguments against child pornography, we proceed to the First Amendment value of child pornography. 1. Child pornography has significant artistic value. If beauty is defined broadly as that in an image which gives pleasure to the mind, then the aesthetic value of child pornography is clear. Millions of people find such intense beauty in these images that to view them, they are willing to risk their happiness and freedom. But even if we do not consider this enjoyment as artistic (though it is not clear how to draw this line in the objective way), child pornography includes the artistic vision of the director (if any) and the artistic and emotional expressiveness of the children--not to mention the intrinsic beauty of the human body. Moreover, sexuality being an important part of life, erotic images may be an integral part of a larger artistic work, perhaps a film lawfully produced outside of the United States. 2. For victims of child sexual abuse, their images (including child pornography) may have important therapeutic value. The therapist may use the images to determine what happened (including the victim's emotions during the abuse), especially if the victim's recollections are inconsistent, incomplete, or otherwise lacking. For the child, a key part of the therapy is understanding what happened and coming to terms with it. Viewing recordings of the abuse (and even partially reenacting the abuse) may be important for reaching such understanding. 3. Child pornography has significant scholarly and scientific value. For most people, including adolescents, sexuality is an important part of life, so sexuality is an important field of study. Scholarly study depends on accurate sources, and videotapes show the conduct exactly as it has happened. There is a saying, "A picture is worth a thousand words," and child pornography may show details that would be distorted or missing if the verbal accounts of participants were used instead. 4. Child pornography has important law enforcement value. Evil thrives in secrecy, not in openness. By taking and sharing photographs, the abuser may unwittingly be helping law enforcement and the child. Child pornography helps to identify the abuser and the victims. Once the identification is made, the abuse can be stopped, the victims treated, and the abuser prosecuted. The photographs can be used in court to secure a conviction. Moreover, law enforcement is the responsibility of the public as a whole and not just of the police. 5. We now come to the final argument, and the reason why categorical protection of the freedom of speech is a necessary good and not merely an anomaly of the First Amendment text. Freedom of speech is a necessary part of any democratic society. The right to vote is meaningless without freedom of speech. The prohibition on child pornography impairs that right with respect to children and sexuality. * First, the prohibition violates the right of the victims to seek justice for the sexual abuse. If the government is callous about child sexual abuse, it is the right of the victim (or any other person) to persuade the public (and by extension, the government) to take action. A crucial part of the persuasion is explaining what happened. While a person may tell a story in words, this story might not be believable without pictures. Images convey a sense of reality that is very difficult to describe in words. Images convey information and arose passion in a way that ordinary words do not. * Second, the prohibition violates the democratic process regarding age of consent laws. The public is prevented from seeing what activities are being prohibited: Pictures and videos capture the activity and emotion in a way mere words are unlikely to do. Thus, for example, a person may not believe that a child is genuinely smiling and enjoying sex until shown a video of such case. Also, pictures often convey infromation much quicker than words--and thus get message through where just words would be lost. Opponents have an understandable fear that widespread distribution and viewing of child pornography will erode age-of-consent laws, but such fear only underlines the value of child pornography in the democratic process. * Third, the prohibition is inconsistent with the democratic process on the laws regarding child pornography. By not being able to see the images, the public does not know what images are prohibited and thus cannot effectively deliberate on their value and legal status. For these reasons, the right to distribute child pornography is a necessary part of the democratic process. -------Below is the previous (and less persuasive) version of the argument-------------- Dmytro Taranovsky April 2, 2002 Child Pornography The contention that child pornography is not protected by the first amendment is mostly based on the claim that child pornography harms children. However, possession or distribution of child pornography to people who do not interact with the child has no effect whatsoever on the child. Interactions of people who downloaded child pornography over the internet with the children pictured are quite rare. If the interaction does occur, it is on average not harmful to the child: People who do not like the pornography do not view it, and it is unlikely that people who enjoy child pornography will want to punish the child for being the model for the pictures. Even if the interaction is harmful to the child, banning information about the child (that is child pornography) is not a valid method of preventing the harm. Finally, impossibility of criminal prosecution would not mean that the child cannot sue for violation of the privacy rights. It is also contended that outlawing child pornography will decrease child sexual abuse because children would no longer be abused for the purpose of creating pictures of their abuse. However, despite the ban on child pornography, underground profitable businesses that exploit children to create the pornography are still common. Moreover, people who want to see images of children enjoying sex are prevented from seeing the pictures that are already created and instead sexually abuse children and often create new pictures. A more effective way of regulating child sexual abuse is to deny to copyright protection to child pornography. Then, production of child pornography will not be a profitable business since those who distribute child pornography would have no financial incentive to create child pornography as opposed to using images that are already created. Moreover, production of child pornography can remain illegal. Thus, the government does not have a compelling need to outlaw child pornography. Because laws outlawing child pornography are not content neutral, they are subject to strict scrutiny and are thus unconstitutional. It is further contented that child pornography lacks political value. However, pictures of children being raped are a powerful evidence of child sexual abuse. Frequently, the pictures are the only evidence of the abuse. Because people have a constitutional right to communicate evidence of crimes to the public (so that people can stop the crime from recurring and so that people can take actions against the offender and so that legislation to prevent similar crimes can be passed), the ban on the graphic evidence of child sexual abuse is unconstitutional. Moreover, knowledge of child sexual activity is essential for people to decide on proposed laws related to such activity in a meaningful democratic way. If the people are forbidden to see pictures of children engaging in consensual and nonconsensual sex (or, equivalently, if the distribution of such pictures is forbidden), then the people are forbidden to see the difference between consensual and nonconsensual child sex and thus are prevented from democratically deciding on how the laws should treat the sexual activity and distinguish the different instances of the activity. A verbal description is clearly insufficient since the few people privileged to see child pornography can distort the action in their description and thus prevent the democracy as the public is unable to correct the distortion because they are forbidden to see the pictures. Finally, it is also contended that child pornography promotes immorality among the audience and that the lack of morality harms the society. However, the moral views held by the authorities are often wrong. For example, German government and most of German citizens during the World War Two believed that the Holocaust is moral. During the 1950s, the governments of the southern states considered civil rights movement to be so immoral that the juries refused to convict white supremacists who murdered leaders of the civil rights movement. Therefore, the ability to change the moral views of people is a vital protection to the society, and speech that causes causes people to alter their moral views is fully protected under freedom of speech. Pictures of children enjoying sex cause some people to believe that consensual adult-child sex is moral, and the impact is fully protected by freedom of speech. The society can regulate immoral actions, not words. Therefore, child pornography is protected by freedom of expression. The precedents of the courts against child pornography do not apply because the arguments presented here were not presented at those cases.