Censorship Forces Lash Back Passionately
Say court sided with pedophiles over children.

By JOHN SCHWARTZ

Reaction to the Supreme Court's decision to strike down a law prohibiting "virtual" child pornography was swift and passionate.

Representative Mark Foley, a Republican of Florida who is co-chairman of the Congressional Missing and Exploited Children's Caucus, said the Supreme Court had "sided with pedophiles over children."

Conversely, Eric M. Freedman, a law professor at Hofstra University, said, "The First Amendment had a very good day at the Supreme Court today."

The law that the Supreme Court struck down imposed heavy penalties on those who made or possessed images that merely looked like child pornography, including pictures of adults purporting to be minors and images created by computers that are virtually indistinguishable from real children.

In the past, the Supreme Court had found that laws creating stricter legal categories for child pornography were constitutional, since such material was "intrinsically related" to child sexual abuse. Virtual pornography, by comparison, "records no crime and creates no victims by its production," the court stated.

The government's effort to link ideas directly to bad acts presented a dangerously slippery slope, Professor Freedman said. "On that theory you could ban playing the music of Wagner: you start playing Wagner, next thing you know you've got a Nazi takeover."

Striking down the child pornography law does not prevent the government from prosecuting the purveyors of obscene material, which is not protected by the First Amendment, Professor Freedman noted. "Obscenity is banned has been banned, continues to be banned."

Attorney General John Ashcroft said his department would redouble its efforts to investigate and prosecute child pornography cases and would work with Congress to develop laws that could pass court scrutiny. At a news conference yesterday, Mr. Ashcroft said he was "disappointed" in the decision.

"I would warn the child pornographers and others who exploit our children," he said, "that they will find little refuge in today's decision."

Jeffrey Douglas, chairman of the board of the Free Speech Coalition, which challenged the law, applauded the court for recognizing that "the theme of teenage sexuality has been explored by artists throughout human history."

A supporter of the bill said the government had botched its defense of the law.

"We didn't have to lose this," said the supporter, Bruce Taylor, the president of the National Law Center for Children and Families. Mr. Taylor, who once prosecuted pornography cases as a Justice Department lawyer, said the government's lawyers "just couldn't bring themselves to narrowly construe the statute to images that really do appear to be real kids having sex."

Another proponent of the law said the justices "failed children and left them vulnerable to sexual predators." That proponent, Jan LaRue, senior director of legal studies for the Family Research Council, said the court should not have stated that the law could restrict material that isn't "pandered as child pornography," like the movie "Traffic" and the play "Romeo and Juliet."

Instead, Ms. LaRue said in a statement, "all the court needed to do is determine the reach of the statute and exclude the kinds of images to which it could not apply."

Mark Kernes, a senior editor at Adult Video News, an industry publication, said few Web site owners tried to peddle fake child pornography.

"An adult with an ample bosom dressed up in pigtails and a short skirt is not going to be attractive to a pedophile," Mr. Kernes said.

"What the Supreme Court has said here is that `child pornography has to involve children,' " he said. He added, scornfully, "And what a shock that is."

excerpted from:
Reaction to a Controversial Decision Is Passionate
By John Schwartz
New York Times April 17, 2002