More Line Drawing: Child Pornography

Constitutional analysis is often one big slippery slope exercise. 

Where do we draw lines? These days a "limiting principle" is as popular as talking about putting things in "buckets" (seriously; they started this in recent years for some reason). For instance, will same-sex marriage lead to incest and polygamy? 

Will protecting peyote in religious exercises mean marijuana too? And, maybe, that won't be so bad! The game is played for free speech too. There are various categories not covered including threats, libel, and perjury (not lying across the board). 

Obscenity is one unprotected category. For whatever reason, selling the idea Nazism is fine is okay, but certain types of patently offensive matters of prurient interest don't have enough protection for First Amendment purposes. It's sort of f-ed up.

The more logical approach is to protect minors and unwilling viewers. Yes, we have had various debates on line drawing, including involving George Carlin's dirty words on the radio. But,  as a general matter, that is a lot more narrow in scope than a total ban.

Likewise, certain types of sexual materials can be banned. For instance, the distribution of private nude photos and videos without permission, especially "revenge porn," in certain cases can be illegal.

A prime case of regulation is child pornography. Yet again, however, we have line drawing. Young adult fiction will deal with sexual topics. If we are drawing the line at eighteen, some portrayals of sexual acts do not seem outrageous. Especially in France. 

There is also the question of art and photography. A 1970s sex education book from Germany, Show Me!, received some controversy. 

Child pornography cases will sometimes raise the usual nude children at the beach hypos. BTW, nudism photography is allowed even if it has minors. If it is purposely lewd, you might get into trouble.  

The Supreme Court has held that fake (virtual) child pornography is also protected. OTOH, though the Supreme Court protected personal protection of obscenity in the home [not downloading it], they drew the line (6-3) at child pornography.  

The Supreme Court unanimously upheld a New York law banning the distribution of materials portraying minors involved in non-obscene sexual acts. The state court struck it down as not narrowly tailored enough. 

I'm inclined to agree with them though maybe not for the exact grounds provided. The text:

A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than seventeen years of age.

What is "sexual conduct"? For instance, is Pretty Baby by Brooke Shields a problem? I think you need a few more adjectives and details. The oral argument suggests there are additional things involved when applying the statute including "lewd" conduct. But, the text alone does not say that. 

It is one of those cases where the specific facts make you wonder why we are here. The case involved a video of teen boys masturbating. It should have been possible to prosecute it as obscenity.  

The defendant's lawyer basically provided a "how-to" on why they screwed up. After all, double jeopardy ensured Ferber was safe. Chief Justice Burger clearly expressed his distaste over the defense's argument.  

The main opinion held the possible legitimate applications (Show Me! was cited in the oral argument) were minor enough not to strike it down as overbroad. Four justices showed some additional concern that sometimes such works could have enough value to be worthy of protection.  

Note that the defense's position was not that any material was protected. He granted you could ban obscene works. He just did not want a looser rule for child pornography. It is unclear how much that will matter in practice. As noted, the material in question sounds like it could be targeted as obscenity.  

Basic rules of consent are legitimate reasons to limit certain behaviors to adults. We can expand that rule to the filming and distribution of those behaviors. So, child pornography rules in principle are acceptable.

The question then becomes where to draw the line. Just because minors are involved, there still will be stuff that should be protected. The easier calls are written and virtual works. Ditto, in the other direction,  material which is blatantly child porn. 

Such material in certain cases might be acceptable in limited instances. For instance, people learning about sexual abuse can view certain materials. Certain works otherwise not allowed might be legitimate in small amounts in documentary and news accounts.  

The rest are the judgment calls that is what law is all about. We should be careful about targeting such materials except in narrowly defined situations. 

For instance, teens spreading nude photos can be problematic, but it is also problematic to make people who willingly send such things into criminals. A single act of downloading child pornography can be a federal offense. But, zero-tolerance also is questionable.

Harmful to Minors, which I read some time back, provides a libertarian point of view about children's sexuality. We can recognize some limits here. Wherever we do, we should do so carefully.