Pornography:
Activist Court “Panders” to Child Pornographers

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May 2002

By Terrence B. Berger, Esq., practicing attorney in Bernardsville, NJ and a member of the Legal Resources Council of the NJ Family Policy Council.

It is a travesty of justice that the Supreme Court’s decision to strike down provisions of the Child Pornography Prevention Act, (CPPA) made our children’s welfare take a back seat to those whose intentions are to harm them. It is further confounding that the Court arrived at its decision by construing the CPPA to reach material Congress never intended to reach.

By enacting the Child Pornography Prevention Act (CPPA), Congress sought to close a loophole to the content-based ban of material depicting minors engaged in sexually explicit conduct. The “loophole” in effect here is that technologically sophisticated child pornographers are producing “virtual” child pornography – pornography produced without real children but indistinguishable from pornography depicting real children – which can stimulate pedophiles just the same. Well-documented Congressional findings show that such material threatens children through its use by pedophiles to encourage children to engage in such activities, and that the material could effect an increased demand for creation and distribution of child pornography. Yet the US Supreme Court in Ashcroft v. Free Speech Coalition has taken the drastic step of striking down these provisions, based on its fear that the CPPA could be construed to reach legitimate works of art.

The Court had no reason to apply such a broad interpretation to the CPPA, as noted in the opinions penned by Chief Justice Rehnquist and Justice O’Connor. Justice O’Connor noted, the Government has a compelling interest in protecting our Nation’s children. Certainly, the CPPA’s goal of disarming pedophiles of “virtual” child pornography that ultimately hurts our children, and aiding our prosecutors in enforcing child pornography laws by removal of the “virtual child pornography” loophole, are laudable and reasonably related to protection of our children”. Chief Justice Rehnquist, in his dissent, similarly notes that a review of the entire CPPA (and its legislative history) makes clear that the CPPA targets virtual child pornography that is easily mistaken for the real thing, and not mainstream movies and entertainment cited by the majority in its opinion. Thus, given the rule of law that requires the Court to construe narrowly laws that serve such a compelling interest, in order to save its constitutionality, the Court’s decision to strike the CPPA down based on a broad interpretation is unjustified.

 

 

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