FC: Eric Freedman on morphed child porn: "Pursuing Pixelized Pixies"

[Declan McCullagh <declan () well com>]

[Eric is a longtime warrior on behalf of free expression. I've translated 
his article from, ugh, Microsoft Word form to text, which has wrinkled the 
article's formatting a little. But it should be readable. Eric, BTW, is 
talking not about the obscene-for-minors-to-read COPA case, but the 
morphed-nude-images-of-minors CPPA child porn case. Both are before the 
Supreme Court. --DBM]

********

Date: Thu, 20 Sep 2001 20:40:24 -0400
From: "Eric M. Freedman" <lawemf () Mail1 Hofstra edu>
To: declan () well com

A piece of mine from the August issue of Communications of the ACM.  Best. -E.


Eric M. Freedman

---

Pursuing Pixelized Pixies

This fall, in Ashcroft v. Free Speech Coalition, the Supreme Court will be 
deciding the constitutionality of a remarkable statute that broadly 
criminalizes the dissemination of all depictions that Aappear to be@ ones 
of children engaging in Asexually explicit@ conduct notwithstanding that 
the images were generated purely digitally, without the use of any actual 
children (or adult actors for that matter) at all.
According to the legislative findings supporting the Child Pornography 
Prevention Act, viewing the forbidden pictures Acan desensitize the viewer 
to the pathology of sexual abuse or exploitation of children, so that it 
can become acceptable to and even preferred by the viewer.@ Moreover, say 
the findings, such images create an unwholesome moral 
environment.  Further, according to advocates of the statute, the 
government will never be able to prosecute pornographers if it must bear 
the burden of proving that the images are of real rather than digital children.
If it applies ordinary constitutional rules, the Supreme Court will with 
little difficulty reject these defenses and affirm the decision of the 
United States Court of Appeals for the Ninth Circuit to strike down the 
challenged portions of the statute.
In 1959,  the State of New York sought to prevent dissemination of the 
movie version of ALady Chatterley=s Lover@ on the basis of its 
Apresentation of adultery as a desirable, acceptable and proper pattern of 
behavior.@  The Supreme Court unanimously rebuffed the effort, holding that 
the State=s action Astruck at the very heart of constitutionally protected 
liberty.@
AIt is contended,@ wrote Justice Potter Stewart, Athat the State=s action 
was justified because the motion picture attractively portrays a 
relationship which is contrary to the moral standards, the religious 
precepts, and the legal code of its citizenry.  This argument misconceives 
what it is that the Constitution protects.  Its guarantee is not confined 
to the expression of ideas that are conventional or shared by a 
majority.  It protects advocacy of the opinion that adultery may sometimes 
be proper no less than advocacy of socialism or the single tax.  And in the 
realm of ideas it protects expression which is eloquent no less than that 
which is unconvincing.@
Thus, in 1986, the Court summarily struck down an Indianapolis ordinance 
criminalizing those sexually-themed works that had the effect of 
subordinating women.  Perhaps the material at issue had socially 
undesirable consequences, the lower court wrote, but, Athe state may not 
ordain preferred viewpoints in this way.@  And even when the Court upheld 
broader suppression of sexually explicit works involving children, so as to 
afford physical protection to real children involved in abusive 
productions, it took pains to note that producers could always convey their 
message by such means as using adult actors who appeared to be younger.
As to the prosecutorial convenience argument, it is hardly a constitutional 
response to the government=s inability to bear the burden of proof in a 
criminal proceeding to pass a statute relieving the government of the need 
to do so.  Practically speaking, this means that in the very rare instances 
when defendants have the courage to force such cases to trial, the 
government will have to offer proof (e.g. from other participants in the 
production) in addition to the images themselves.
More broadly, the statute rests on premises and language of stunning 
vagueness, that together could lead to consequences that would eviscerate 
the First Amendment as a protector of unpopular speech.  For example, one 
rationale offered for the legislation is that pedophiles might seduce 
children into engaging in sexual activity by displaying computer-generated 
images of other children doing so.  This rationale would not only support 
the banning of lollipops, but also of  a huge range of images -- including 
photographs made with mannequins, and cartoons.  And, read literally, the 
statutory ban on images that Aappear to be@ ones of children would support 
this result.  This could have the effect of outlawing classical works of 
art featuring cherubs, photographs of primitive tribes, and many other 
depictions that could hypothetically be abused by a criminal.
That is precisely why the Court has historically rejected justifications 
for censorship that are based upon the possible responses of some 
peculiarly vulnerable subset of the population.  For example, in Butler v. 
Michigan, it unanimously reversed a conviction under a statute outlawing 
any publication Amanifestly tending to the corruption of the morals of 
youth.@   Justice Felix Frankfurter wrote that the effect Aof this 
enactment is to reduce the adult population of Michigan to reading only 
what is fit for children.  It thereby arbitrarily curtails one of those 
liberties of the individual . . . that history has attested as the 
indispensable conditions for the maintenance and progress of a free society.@
            As Justice Louis Brandeis stated the broader principle on 
another occasion, AAmong free men, the deterrents ordinarily to be applied 
to prevent crime are education and punishment for violations of the law, 
not abridgment of the rights of free speech and assembly.@  In other words, 
if someone visits a website and is motivated to commit a murder, punish the 
murderer not the site owner.
Despite all of this, there is some danger that the Supreme Court may uphold 
the statute at issue in Ashcroft.  And the danger arises from more than the 
simple fact that the words Asex@ and Achildren@ appear in the same paragraph.
 Historical experience -- with, among others, printing presses, secular 
dramatic troupes, photographs, movies, rock music, broadcasting, sexually 
explicit telephone services, and video games -- shows that each new medium 
is seen at first as uniquely threatening, because uniquely influential, and 
therefore a uniquely appropriate target of censorship.  And the response of 
the Supreme Court to such developments has been mixed at best.  In 1915, 
for example, it held movies to be outside of the First Amendment, in a case 
that it did not overrule until 1952.
This is the backdrop against which we currently find governments reacting 
with near-hysteria to the possibility of the creation, dissemination and 
viewing through the use of computer technology of messages even vaguely 
related to sexuality.  Unfamiliarity makes this new medium seem 
particularly dangerous, and governments are haunted by the fear that the 
mechanisms of communications may be outrunning those of control.  So the 
authorities worry that neither the doctrinal categories nor the substantive 
content of current First Amendment law are adequate to deal with emerging 
problems.  If they were to ignore the lessons of history, the courts might 
vindicate special restraints by simply declaring that Acyberporn@ presents 
unique threats and is therefore Aoutside@ the First Amendment.
The common pattern of legal response to new communications technologies 
reflects the reality that new media achieve their initial marketplace 
success precisely because they are for some purposes a more effective form 
of communication than pre-existing ones.  Thus, photographs were a special 
target of censorship efforts in the 19th century because they were so much 
more realistic than painting.  As one historian has described, audiences of 
that period viewing magic lantern shows Awere often so shocked by the 
portrayal of this new and terrifying world that they fainted, cried, or 
talked back to the magic lantern screen.@  And early in the 20th century, 
audiences for Thomas Edison=s first movies, confronted with the spectacle 
of a locomotive heading right for them fled the theaters in 
horror.  Moreover, in every century one of the first uses of innovative 
communications technologies has been the transmission of sexual images, and 
one of the next has been communication in the furtherance of political 
dissent -- thereby further exacerbating the authorities= concerns for 
social stability.
The courts should enforce the First Amendment in the context of new media 
just as they do in the context of old ones, and recognize the damage that 
groundless fears may do to public discourse.   In time, a consensus will 
arise that the first reaction to the perceived threat of pixelized pixies 
in cyberspace was as overblown as with other new media. Meanwhile, the 
courts, in the interests of social, political, and artistic progress, need 
to apply the First Amendment in a technology-neutral way and eschew the 
temptation declare certain categories of speech Aoutside@ the First Amendment.
The whole point of the First Amendment, after all, is to preserve the 
possibilities of the future by denying the majority the right to suppress 
speech it finds hateful in the present.
------------------------------
Eric M. Freedman (Lawemf () Hofstra edu) is a professor of law at Hofstra 
University School of Law. 




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