Blurring the real and the imagined
Commentary by Adam Tanous
Child pornography is an ugly subject to contemplate. Even
the words juxtaposed as such are unseemly. The phrase marries together a
concept that is fundamentally degrading and largely violent with the most
vulnerable members of our society. I think it is safe to say, barring a
fringe and generally silent few, most people find child pornography
depraved and demanding harsh legal reprehension.
Enter the digital age to muddy the waters. Two weeks ago
the Supreme Court accepted a case ostensibly concerning child pornography
but one that could have broad ramifications not only in the arena of free
speech but in intellectual creativity.
At issue is whether it is a First Amendment violation to
criminalize the computer generation of fictional children engaged in
imaginary, pornographic acts.
I think the case centers on a situation computer
technology has created: the merging and, perhaps, eventual blurring of the
real with the imaginary. The case speaks to the amorphous and somewhat
illusive distinction between the two and whether, at some point, the
blurring of that distinction is harmful to society.
In 1996 with the Child Pornography Protection Act,
Congress expanded the child pornography laws to prohibit sexually explicit
material depicting a person who "appears to be" a minor.
Further, if material "conveys the impression" that a minor is
engaged in sexual activities then it is unlawful.
Prior to 1996, the State’s "compelling
interests" for overriding the First Amendment with child pornography
laws centered on two arguments. One was that the laws would protect the
children who were victimized in the production of child pornography. This
was the upshot of a 1982 Supreme Court ruling in New York v. Ferber. The
other argument, upheld in Osborne v. Ohio (1990), was that the possession
of child pornography material played a role in the cycle of child abuse,
namely that pedophiles used it to seduce innocent victims.
The 1996 law came about because technology had advanced to
the point where computer generated images of children engaged in sexual
acts were considered indistinguishable from real people.
The Ninth Circuit Court of Appeals overturned the law in
1999 saying that it was unconstitutionally vague and set a "highly
subjective" standard for criminality. It also held that the
government’s only compelling interest in suppressing free speech was in
protecting real children from harm. There was no evidence that the
computer generated images harmed real children.
The government had argued that this material "whetted
the appetite" of pedophiles and, therefore, perpetuated the problem.
They also said that the State would never be able to prosecute a child
pornography case without the law, because there would always be reasonable
doubt as to whether the images were of real people or not.
The counter argument is that removing this burden of proof
for the State would then violate the Fourteenth Amendment: the right of
individuals to due process of law.
The case is a perplexing one because the very concept of
children being forced or coerced into engaging in sexual acts violently
clashes with our sense of morality. There is a significant problem in
society. But what is the remedy?
Ultimately, I think the 1996 law crosses a line we shouldn’t
cross. It attempts to apply the rule of law to the fictional world. As
soon as we attempt to apply law to creations of the mind—as opposed to
creations of the hand, like a bomb—we we get into murky territory. The
range of imagined deviance in the world is unlimited. How do we legislate
against that? It seems that laws need address situations when there are
victims. But how do we legislate against things that may offend our
sensibilities?
Slippery-slope arguments are sometimes specious ones but I
think the idea applies here. Murder violates our moral and legal codes.
Should we therefore outlaw fictional accounts of murder that appear in
countless works of literature? These are imagined events with imagined
victims.
Murder weaves its way through most of Shakespeare’s
plays. What do we do about him? Or about Crime and Punishment?
Should the novel American Psycho be treated differently from other
novels say, In Cold Blood, because it is more graphic or has a
greater level of detail?
Realistic "virtual" murders—those generated on
a computer—will soon appear (if they haven’t already) in film or on
the Internet. Much cruder versions appear in most popular video games. The
difference boils down to little more than the level of sophistication of
the software.
Ultimately, trying to control products of the imagination
is tantamount to chasing the wind: we’ll never get there.
Once again our technological prowess has presented us with
a conundrum. As much as we despise child pornography, there is no way to
control the virtual version of it without wading into the quicksand of
editing all that individuals imagine and create.
In the case of virtual pornography, we are suddenly put in
the position of trying to protect not victims but the sensitivities of the
audience, whether they be viewers, readers or listeners. All sorts of
materials of bad taste or worse, deviance, pop up in society.
Traditionally free markets sift out the chaff. It is the only focused and
accurate way to determine the wishes of the aggregate. Laws tend to be too
blunt of instruments when it comes to issues of what is appropriate, in
bad taste or offensive.
Finally, the issue comes down to whether we will hold fast
to a distinction between the real and the fictional. All sorts of forces
are working to make the two become one. But without maintaining even a
wafer thin distance between the two, we risk our sense of humanity. Once
that critical distance vaporizes, we will suffer vertigo like we’ve
never experienced before. It is equivalent to throwing our one true frame
of reference to the wind. We are left to float about in a formless space
with no sense of up or down, left or right—no understanding or sense of
what is real or imagined.
