Talk Story
John Ashcroft suffers
a bad week in the courtsCHIEF JUSTICE Earl Warren once said, "I always turn to the sports pages first, which record people's accomplishments. The front page has nothing but man's failures." The man on the front pages this week was Attorney General John Ashcroft.
He lost two big battles: The Supreme Court struck down provisions of the Child Pornography Prevention Act that Ashcroft supported, and a federal judge in Oregon ruled the AG could not overturn the state's physician-assisted suicide law.
Voters have approved the Oregon act twice, but "with no advance warning to Oregon," U.S. District Judge Robert Jones complained, Ashcroft "fired the first shot in the battle between the state of Oregon and the federal government." The Justice Department is left to consider an appeal.
A majority of Supreme Court justices agreed that the CPPA went too far when it treated computer-generated, "virtual" child pornography the same as the real thing.
THE COURT'S unwillingness to be bullied into accepting a too-broad law "shows a wise and courageous allegiance to the rights that are this nation's greatest strength," the Los Angeles Times said in a Wednesday editorial.
A New York Times editorial agreed, saying the court's ruling "sent a clear message to would-be censors: The government must be scrupulous, when regulating obscene material, not to infringe on protected speech."
Others were incensed. Talk show host Michael Medved attacked the decision on the radio as another example of judges creating law and exceeding their constitutional authority.
Jan LaRue of the Family Research Council said, "That the Supreme Court ... can entertain the notion that virtual images of children being sexually violated has 'value' that needs protection is an abomination."
The provisions struck down imposed heavy penalties on anyone who made or kept images that looked like child porn. These could be pictures of adults disguised as minors or computer-created images.
There's a Hawaii angle to the story. Medved, who is a film reviewer as well as a conservative radio voice, cited the feature film "Final Fantasy," which was produced here in 1999 by Square USA using state-of-the-art computer animation.
Medved said he didn't like the movie, but its high-quality animation showed that the gap between virtual images and those depicting actual subjects is rapidly closing. If the real and the artificial become indistinguishable, he argues, why should there be severe penalties for "real" child pornography and none for "virtual"?
Good question.
When the Supreme Court in the past has upheld child pornography laws, it ruled such material was "intrinsically related" to child sexual abuse. Virtual pornography, on the other hand, "records no crime and creates no victims by its production," wrote Justice Anthony M. Kennedy in the majority opinion.
Since no real children are abused, Kennedy argued, computer-generated images create no victims. The government argued that it did, although indirectly.
The law was too broad, Kennedy wrote. "Under the CPPA, images are prohibited so long as the persons appear to be under 18 years of age. This is higher than the legal age for marriage in many states," he noted.
Pornographers still face prosecution, however. As Eric M. Freedman, a Hofstra University law professor, said, "Obscenity is banned, has been banned, continues to be banned."
However, Kennedy wrote, "the government must prove that the work, taken as a whole, appeals to the prurient interest, is patently offensive in light of community standards and lacks serious literary, artistic, political or scientific value."
In other words, Ashcroft's prosecutors must work harder to make a case.
John Flanagan is the Star-Bulletin's contributing editor.
He can be reached at: jflanagan@starbulletin.com.