Virtual Kiddie Porn: Where is the Harm?

One would think that child pornography is illegal because the production of images of children engaging in sexual acts is potentially harmful to those children. However, the legal definition of “child pornography” extends beyond depictions of actual sex to include “a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct” and depictions that have “been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct” (18 U.S.C. §2256). As of 2003, the PROTECT Act criminalized even an unrealistic image that depicts or appears to depict minors engaging in sex, “including a drawing, cartoon, sculpture, or painting” as long as it is deemed “obscene” via the Miller test. Pornography containing the images of actual children is illegal even if it does not pass the Miller test because its criminality lies in how it is produced: by sexually assaulting children (as established in New York v. Ferber, 1982). Child porn, then, does not have to involve actual children in its production in order to be illegal, as long as it is "obscene." From a libertarian viewpoint, the law might seem too restrictive; after all, if real children are not assaulted, there seems to be no harm in creating these images. Some researchers have even argued that the availability of these images acts as a "safety valve" that prevents actual children from being victimized, as cited in this presentation of an international perspective of child pornography (opens as a PDF; see footnote 24).

Indeed, in 2002, the Supreme Court took a more libertarian stance and struck down the Child Pornography Prevention Act of 1996 (CPPA), “finding it to be substantially overbroad because it bans materials that are neither obscene under Miller nor produced by the exploitation of real children as in Ferber.” (Ashcroft v. Free Speech Coalition, also known as Reno v. Free Speech Coalition). Justice Kennedy cites then-contemporary films such as Romeo + Juliet and American Beauty in his majority opinion as examples of artistic expression that would be outlawed by the CPPA, merely because the actors are portraying minors having sex. Justice Rehnquist, in his dissenting opinion, interprets the CPPA differently, insisting that only "actual sexual activity" by "youthful looking adult actors" would be banned under the law. As sex scenes in mainstream films are almost always simulated (here's a fun page of scenes that allegedly are not simulated), Rehnquist's interpretation of the law would only apply to intentionally pornographic films that feature actors who appear to be minors, essentially criminalizing the "teen" porn genre. Of course, if the language of the law was so subjective that Supreme Court Justices could disagree about whether the word "simulated" was modifying "sexual activity" or "minor," the law was in fact too vague and was rightfully ruled unconstitutional.

Some legal scholars still believe that the Court made the wrong decision in this case due to the harmful effect that simulated child pornography can have on children. In her article "Stimulation by Simulation" in the Capital University Law Review, Kelley Bergelt is in favor of laws like the CPPA because they correspond with the federal goal of complete elimination of the child porn market. Taking a firm neoliberal stance, she asserts that "there is no value to society in permitting this form of speech" and that it will "inevitably harm society as a whole." Bergelt cites two main reasons for defending the CPPA. First, virtual pornography can still be used as a "luring device" for prowling pedophiles who present these images as "exciting or acceptable" to their intended victims. And second, because "simulated images appear indistinguishable from real children," the state will have a more difficult burden of proof if child pornographers can claim that the images are not of actual children.

Debra D. Burke responds to the first point in the Harvard Journal on Legislation. Because the sociological research in this area is so sparse and inconclusive due to obvious ethical issues, Burke has plenty of leeway to say that the correlation between child porn and child abuse lacks evidence. Furthermore, Burke claims that other forms of speech, like adult pornography, are also used as luring devices by pedophiles, but that this fact alone does not warrant their suppression. And while Burke agrees that eliminating child sexual abuse is an obviously worthy goal of the state, criminalizing virtual child porn will not single-handedly achieve this. As for placing the burden of proof on the state, no libertarian would find a problem with ensuring that the government has to prove the defendant's guilt.

I find myself agreeing with Burke over Bergelt, whose reasons for placing virtual child porn outside the realm of protected speech are simply not compelling enough to infringe upon this fundamental right. These porn images do not record actual abuse and are being used as an alternative to images that caused more harm in their creation; therefore, I see no problem in protecting this kind of speech. They are, after all, only concrete evidence of thoughts, not actions, and thoughts don't cause harm.