Child Porn, Animal Cruelty Porn, and the Right to Imagine

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     Last month, Christopher Handley, a collector of comic books, pled guilty to federal charges of importing and possessing obscene cartoon drawings of children; he faces a maximum prison sentence of 15 years, for a crime involving neither actual children nor actual child porn.  Last week, a Tennessee prosecutor charged Michael Wayne Campbell with aggravated sexual exploitation of a minor, for photo shopping the faces of three girls onto the nude bodies of three adult women.  How might this constitute a crime (outside Iran)?  The prosecutor explained:  "when you have the face of a small child affixed to a nude body of a mature woman, it's going to be the state's position that this is for sexual gratification and that this is simulated sexual activity."  It is also a crime - a federal crime -- to share your sexual fantasies about children in private communications with other adults: Two weeks ago, the 4th circuit court of appeals declined to review the conviction of Dwight Whorley for sharing fantasies about sexual abusing children in purely textual email exchanges between consenting adults.  Like Christopher Handley, Whorley was also convicted of receiving obscene Japanese cartoon drawings of children.  Be careful what you imagine.
    
     Dwight Whorley is a decidedly unappealing defendant: a convicted sex offender, he had received sexually explicit photographs of actual as well as imaginary children.  But while his record and his traffic in actual child porn makes him undeserving of much sympathy, it also makes the government's troubling case against his fantasy life unnecessary: his actual child porn offenses were sufficient to convict and imprison him.   Nor does the perverseness of Whorley's imaginings justify their prosecution.  Our right to fantasize ought not be contingent on the moral content of our characters or fantasies; and if Whorley can be imprisoned for email discussions of repellant sexual fantasies, then so can you.
  
      At least one federal judge was deeply troubled by this case.  Dissenting from the 4th circuit's refusal to re-hear Whorley's appeal, Judge Gregory encouraged him to seek Supreme Court review: "The (Court's) obscenity jurisprudence has never come close to stripping adults of First Amendment protections for their purely private fantasies, and the implications of our sanctioning this governmental intrusion into individual freedom of thought are incredibly worrisome," Gregory wrote.
   
     Equally worrisome is the likelihood that the Supreme Court would not accept this case for review, much less rule in Whorley's favor - even though the prosecution of people for sexual fantasies, or thought crimes -  speech involving no illicit conduct and no conspiracies, solicitations, or attempts to engage in illicit conduct - was considered unconstitutional by the Court as recently as 2002:  In Free Speech Coalition v Ashcroft, in a 6-3 decision, the Court struck down the Child Pornography Prevention Act  bans on producing or possessing non-obscene, virtual (including computer generated) child porn.  Invalidating these provisions did not require a subtle or arcane legal analysis; it required only a basic understanding of First Amendment freedoms.
   
     The government may not criminalize speech based on claims about its indirect potential harm, as the Court stressed:  "The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it."  (And, in this case, even the tendency of virtual porn to encourage child abuse was unproven.) "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought." Justice Kennedy wrote for the majority.
   
     That was then.  Last year Justice Kennedy joined the majority in a 7 - 2 decision that effectively overruled the defense of free speech he had offered a mere four years earlier.  In Williams v U.S., the Court upheld the PROTECT act, which includes a ban on pretending to traffic in sexually explicit images of actual children or obscene virtual child porn.  Really.  (PROTECT is an acronym for the shamelessly entitled, Prosecutorial Remedies and Other Tools to end the Exploitation of Children Act of 2003," which was enacted in response to the Court's decision in Free Speech Coalition v Ashcroft.)
   
     In other words, having held that Congress could not criminalize production or possession of all virtual child porn, the Court held that it could criminalize soliciting or advertising virtual child porn in the mistaken belief or with intent to persuade others to believe that it's the real thing. (The PROTECT Act also criminalizes obscene virtual child porn.)  The soon to be missed Justice Souter pointed out the obvious, in a dissent joined only by Justice Ginsburg:  Allowing prosecutions for pandering or soliciting non-obscene, virtual images dramatically undermines First Amendment protections the Court extended to them only a few years ago.    

     Dennis Whorley's conviction was based, in part, on the PROTECT Act (he was the first person convicted under it;) his conviction for sending "obscene" emails to other adults rested on an older obscenity statute, but it might easily be justified by the same impulse to prohibit virtual child porn that underlies the PROTECT Act and imprisons people for pretending to pander child porn or actually collecting obscene cartoons.  It doesn't take a great leap of law of law to criminalize discussion of a cartoon - the depiction of a desire or an idea -- once you've criminalized possession of it.   

     Outside the respective subcultures of free speech advocates, comic book collectors, and pedophiles, not many people will mourn the loss of a right to imagine or discuss abusing children.  But the rationales for censorship developed in these cases can always be extended, by carving out additional exceptions to the First Amendment.  In fact, they could conceivably be extended next year, when the Supreme Court decides whether, like child porn, depictions of cruelty to animals should be denied constitutional protection.  In the fall, the Court will consider the case of Robert J. Stevens, convicted and sentenced to 37 months under a federal law criminalizing the production, sale, or possession of material depicting animal cruelty; Stevens's crime was selling videos of pit bulls on the attack.

     His conviction was reversed by the 3rd circuit court of appeals, which declined to create a new category of unprotected speech.  The federal ban on animal cruelty depictions was based in part on assumptions about their indirect harm, the 3rd circuit observed; the government claimed an "interest in discouraging individuals from becoming desensitized to animal violence generally, because that may serve to deter future antisocial behavior toward human beings."  If the Supreme Court rules that Congress may criminalize speech in the mere hope of deterring "future anti-social behavior," what speech may Congress not restrict?  It's hard (and may eventually be illegal) to imagine.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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