[ OUR OPINION ]
NEW technology continues to bewilder Congress, so desperately trying to prevent exploitation of young people that it is unable to distinguish between children and "virtual" children. Once again, the U.S. Supreme Court has struck down a law that violated First Amendment protections in quest of child protection. Free speech survives
congressional assault
THE ISSUE The U.S. Supreme Court has struck down as unconstitutional a federal ban on 'virtual' child pornography.
Long-standing laws have been adequate in prosecuting adults who exploit children, as a 30-year-old Kalihi library worker found when he lured a 14-year-old Oregon girl via Internet messages into what he designed as a sexual encounter. He was sentenced last month to three years in prison.
Six years ago, Congress enacted a law that broadened the definition of child pornography to include images that "appear to be" of minors engaging in sexually explicit conduct. That could include computer-generated images and portrayal of children in movies by adults. While the original child-pornography law protects children from sexual exploitation, the new law sought to protect children who don't exist.
Prohibiting the portrayal of children by adults or through advanced imagery would result in the First Amendment being "turned upside down," Justice Anthony M. Kennedy wrote in the court's majority opinion: "The statute proscribes the visual depiction of an idea -- that of teenagers engaging in sexual activity -- that is a fact of modern society and has been a theme in art and literature throughout the ages."
Juliet, Kennedy noted, was 13 years old when she became involved with Romeo in a relationship that William Shakespeare portrayed "as something splendid and innocent, but not juvenile." Some of the 40 motion pictures inspired by the play suggested that the relationship was consummated. Those movies would be forbidden by the virtual child-pornography law, as would "Traffic," nominated last year for an Academy Award as best picture, and "American Beauty," winner of that award the previous year.
In defending the law, the government contended that "virtual" child pornography could encourage pedophiles to molest children, but that is mostly conjecture. Existing child-pornography laws were "based upon how it was made, not on what it communicated," Kennedy explained.
Congress has tried repeatedly to make it a crime to transmit "indecency" or material "harmful to minors" on the Internet, but the Supreme Court has struck down those laws. The high court now is considering the constitutionality of a law requiring public and school libraries to install filters on their computers.
Despite those attempts to shield children from sexual exploitation, the job remains chiefly the responsibility of parents, not government.
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