Later this week, Karen Fletcher of Donora, Pennsylvania, will be sentenced under a plea bargain for having written fictional stories about sex with children. (More here, here and here). Other prosecutors have already indicted writer Frank McCoy for similar writings, depicting the written stories in question as “child pornography.” Whatever value or lack thereof that such writings may have, I think these prosecutions are obvious violations of the First Amendment and totally unwarranted by Supreme Court precedent.
Written pornography obviously does not depict the actual abuse of children, and does not foster the market for such abuse, except in the sort of attenuated way that the Supreme Court has already found unconvincing. See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 250 (2002). These types of prosecutions are not aimed at people who actually abuse children, and do nothing to protect children from such abuse. They are simply outdated attempts at enforcing decency by prohibiting certain written words: just the sort of thing attempted centuries ago by the banning of Fanny Hill (who, by the way, is depicted as a minor). And not enforcing public decency, either, but private decency. In any case, they have no foundation in the law of child pornography.
The reason it’s illegal to manufacture child porn is obvious: it violates the rights of children; they are too young to consent to sexual acts, and therefore it violates their rights to make them do things of that sort.
The reason possessing it is illegal is a bit more complicated: the law is that possession and distribution contributes to the black market that exists for child porn, and because the manufacturing of it is so heinous. In New York v. Ferber, 458 U.S. 747, 756-64 (1982), the Supreme Court explained that the First Amendment does not bar the state from prosecuting people for selling child pornography for five reasons: first, the need to protect children was obviously very strong, much stronger than the need to protect, say, adult porn actors. Second, “[t]he distribution of photographs and films depicting sexual activity by juveniles” is much more closely related to the actual abuse of children than adult pornography, id. at 759, because it leaves a permanent record of the child’s exploitation, and because it is “difficult, if not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies.” Id. at 758-60. Third, the economic motives involved create a special incentive to the abuse of children even though that abuse is illegal in every state. Fourth, there is very little value in protecting “live performances and photographic reproductions of children engaged in lewd sexual conduct.” Id. at 762. And finally, precedent did not bar the Court from taking the position that child porn has no First Amendment protection.
Similarly, in Osborne v. Ohio, 495 U.S. 103 (1990), the Supreme Court held that the First Amendment is not violated when a person is prosecuted for possessing child porn, because: (1) the state was not trying to control what the consumer of porn was doing, or asserting “a paternalistic interest in regulating Osborne’s mind,” id. at 109, and (2) because it was “reasonable for the State to conclude that it will decrease the production of child pornography if it penalizes those who possess and view the product, thereby decreasing demand.” Id. at 109-10.
So while the First Amendment would not allow the state to try to force people to stop consuming pornography by simply making it illegal, the First Amendment does allow the government to protect child victims by trying to shut down the market as a whole, and that includes prosecuting makers and sellers of photographic material.
In Ashcroft, the court held that a law against “virtual” child porn—in which no actual children were involved in the production—was unconstitutional. The government argued that the market for virtual, computer-created child porn helped foster a market for the real thing, and that it was hard for prosecutors to tell the difference between the real stuff and computer-generated material. The Court rejected this argument for “turn[ing] the First Amendment upside down.” 535 U.S. at 255. It noted that such an argument would “allow persons to be convicted in some instances where they can prove children were not exploited in the production,” id. at 256, which is clearly unconstitutional because it would “leave unprotected a substantial amount of speech not tied to the Government’s interest in distinguishing images produced using real children from virtual ones.” Id. at 256. The ban on virtual child porn
prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not ‘intrinsically related’ to the sexual abuse of children, as were the materials in Ferber. While the Government asserts that the images can lead to actual instances of child abuse, the causal link is contingent and indirect. The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts.
Id. at 250 (citations omitted).
Now, in United States v. Williams, 128 S.Ct. 1830 (2008), a few months ago, the Court upheld the constitutionality of a law that banned solicitation (that is, offers to provide, or requests for) child porn. The law also makes it illegal to offer virtual child porn as depicting actual children. Id. at 1839. But here, too, the Court emphasized that it was not expanding the category of unprotected speech: “an offer to provide or request to receive virtual child pornography is not prohibited by the statute. A crime is committed only when the speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children. It is simply not true that this means ‘a protected category of expression [will] inevitably be suppressed.’ Simulated child pornography will be as available as ever, so long as it is offered and sought as such, and not as real child pornography.” Id. at 1844.
What these cases make clear is that the government may prohibit the depiction—that is, the photographic or motion picture imagery—of child pornography. None of these cases have held that the government may prohibit the written description of children engaged in sex. In fact, the Court has very strongly suggested that written descriptions are not to be thought of in the same terms as photographic depictions. In Ashcroft, for example, the Court observed that prohibiting the images of “virtual child porn” might block legitimate productions or movies of works like Romeo and Juliet, who are minors. 535 U.S. at 247. But if written depictions of children having sex qualify as child pornography,
then the actual written text of Romeo and Juliet could indeed be rendered illegal [See update below]—along with many, many other works that depict children having sex or being the victims of sexual abuse.
Most of all, given the fact that the written stories in question are unquestionably fictitious, it’s hard not to see these prosecutions as simple moralizing: as attempts, in the Osborne Court’s words, at paternalistically controlling the heads of the people who write these stories. Now, the general public may find such stories highly offensive, but that is not gounds for prosecuting them. Just about everybody has some sexual fantasy or other that they would be extremely embarrassed to make public—fantasies they would never act out in real life. The whole point of prosecuting acts and not thoughts is that mere thoughts cannot wound. It is true that words can wound sometimes, but this does not appear to be one of those times. The prosecution of child pornography should be limited to photographic images or other recordings of actual acts of abuse or exploitation, and not to mere words on paper or on a screen that merely describe or conjure the imagination.
Update: I wrote this part in haste; of course Romeo and Juliet contains no descriptions of sex and would not itself be banned under the wrong interpretation of the law I'm attacking. But there are plenty of other perfectly legitimate works of literature that would qualify and would be subject to censorship under the theory that written descriptions of minors having sex or being abused qualify as child porn.