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| quote: | Originally posted by Dervish
(Sorry I've missed most of this btw)
But I think if you want to discuss the principle of the law, it is basically the principle that you can have an opinion contrary to what society find acceptable you can voice it too. But you cannot incite others to carry out things contrary to what we find acceptable.
This example is one I think covers it best.
Child porn why is it illegal if you didn't make it? Because by downloading/buying porn you incite others to make it. You aren’t making it only inciting others to make it.
It is a restriction on what you can do because we find it unacceptable. |
Child pornography is slightly different in the sense that a crime has already been committed in the production of child pornography. In order to make the film, you must first abuse the child. Because the images seen involve the abuse of children in the production process, possession of child pornography can be interpreted as aiding and abetting in the production process. Using a different crime as an analogy, if a person robs a bank, and you provide aid, comfort, or accept proceeds of his crime with the full knowledge that that individual committed a crime, you can be charged as an accessory after the fact.
As a matter of fact, congress did indeed attempt to pass a law to prevent the "incitement" of child pornography. It prohibited:
"any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct." The prohibition on "any visual depiction" does not depend at all on how the image is produced. The section captures a range of depictions, sometimes called "virtual child pornography," which include computer-generated images, as well as images produced by more traditional means.
-Child Pornography Prevention Act of 1996
It essentially banned pornography that used young looking girls, or "virtual" girls that depicted child pornography because, "[A] child who is reluctant to engage in sexual activity with an adult, or to pose for sexually explicit photographs, can sometimes be convinced by viewing depictions of other children 'having fun' participating in such activity." Furthermore, pedophiles might "whet their own sexual
appetites" with the pornographic images, "thereby increasing the creation and distribution of child pornography and the sexual abuse and exploitation of actual children." Id. notes (4), (10)(B).
The fundamental principle was that harm flowed from the content of the images, not from the means of their production. The Supreme Court decided the issue in ASHCROFT v. FREE SPEECH COALITION and they concluded:
The sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people. In its legislative findings, Congress recognized that there are subcultures of persons who harbor illicit desires for children and commit criminal acts to gratify the impulses. Congress also found that surrounding the serious offenders are those who flirt with these impulses and trade pictures and written accounts of sexual activity with young children.
Congress may pass valid laws to protect children from abuse, and it has. The prospect of crime, however, by itself does not justify laws suppressing protected speech. It is also well established that speech may not be prohibited because it concerns subjects offending our sensibilities. See FCC v. Pacifica Foundation, 438 U.S. 726 (1978) ("The fact that society may find speech offensive is not a sufficient reason for suppressing it"); see also Reno v. American Civil Liberties
Union, 521 U.S. 844 (1997)....
Ferber upheld a prohibition on the distribution and sale of child pornography, as well as its production, because these acts were "intrinsically related" to the sexual abuse of children in two ways. First, as a permanent record of a child's abuse, the continued circulation itself would harm the child who had participated. Like a defamatory statement, each new publication of the speech would cause new injury to the child's reputation and emotional well-being. Second, because the traffic in child pornography was an economic motive for its production, the State had an interest in closing the distribution network.* * * * * Under either rationale, the speech had what the Court in effect held was a proximate link to the crime from which it came.
* * * * *
In contrast to the speech in Ferber, speech that itself is the record of sexual abuse, the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not "intrinsically related" to the sexual abuse of children, as were the materials in Ferber. While the Government asserts that the images can lead to actual instances of child abuse, the causal link is contingent and indirect. The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts.
The CPPA, for reasons we have explored, is inconsistent with Miller and finds no support in Ferber. The Government seeks to justify its prohibitions in other ways. It argues that the CPPA is necessary because pedophiles may use virtual child pornography to seduce children. There are many things innocent in themselves, however, such as cartoons, video games, and candy, that might be used for immoral purposes, yet we would not expect those to be prohibited because they
can be misused. The Government, of course, may punish adults who provide unsuitable materials to children, and it may enforce criminal penalties for unlawful solicitation. The precedents establish, however, that speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it.
Here, the Government wants to keep speech from children not to protect them from its content but to protect them from those who would commit other crimes. The principle, however, remains the same: The Government cannot ban speech fit for adults simply because it may fall into the
hands of children. The evil in question depends upon the actor's unlawful conduct, conduct defined as criminal quite apart from any link to the speech in question. This establishes that the speech ban is not narrowly drawn. The objective is to prohibit illegal conduct, but this restriction goes well beyond that interest by restricting the speech available to law-abiding adults.
The Government submits further that virtual child pornography whets the appetites of pedophiles and encourages them to engage in illegal conduct. This rationale cannot sustain the provision in question. The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. The government "cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts." First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.
To preserve these freedoms, and to protect speech for its own sake, the Court's First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct. * * * * * The government may suppress speech for advocating the use of force or a violation of law only if "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444 (1969). There is here no attempt, incitement, solicitation, or conspiracy. The Government has shown no more than a remote connection between speech that might encourage thoughts or impulses and any resulting child abuse. Without a significantly stronger, more direct connection, the Government may not prohibit speech on the ground that it may encourage pedophiles to engage in illegal conduct.
http://www.journalism.wisc.edu/~dre...s/Ashcroft.html
Sorry for such a long quote. I really did try to edit out all non-pertinent portions and highlight the more significant parts.
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