Child Sexual Abuse and the Supreme Court
November 17, 2011 http://www.thepublicdiscourse.
The Supreme Court has helped to foster a culture that encourages the sexual exploitation of children.
The child sexual abuse scandal now engulfing Penn State has given rise to much commentary on how people’s values can be distorted by the desire to protect a successful and venerated football program. The point is well-taken. Nevertheless, we also should consider another distortion in our values even more directly related to the kind of abuse in question. The roots of this distortion are in the decisions of an even more venerable and authoritative institution. Specifically, we must consider the role of the Supreme Court in fostering a culture that encourages the sexual exploitation of children.
In 1996 Congress passed, and President Clinton signed into law, the Child Pornography Prevention Act. The Act prohibited what has been termed “virtual child pornography.” That is, it was directed not primarily at the distribution of sexually explicit material made with the use of actual children; such material was already illegal. Instead, its chief aim was to proscribe material devised by other means, such as the use of youthful-looking performers or digitally created or manipulated images, to appear as if these materials depicted minors in sexually explicit ways.
The Act was challenged by a consortium of “adult entertainment” businesses calling itself the “Free Speech Coalition.” One might be tempted to react with indignation that a pack of pornographers would try to dignify its activities under the venerable constitutional concept of freedom of speech. One would err, however, if one directed this anger only at the pornographers. For the Supreme Court itself has long invited such an understanding by holding–contrary to any plausible interpretation of the Constitution as it was understood by those who wrote and ratified it–that pornography is sheltered by the First Amendment. Of course, the Court has never abandoned its longstanding doctrine that “obscenity” is not constitutionally protected speech; but this has become nothing more than a kind of jurisprudential Potemkin village. The Court assures a still somewhat morally serious public that obscenity is not protected, even as it makes it almost impossible to demonstrate that anything, even the most blatant hardcore pornography, fits its highly technical definition of obscenity. Pornography is not obscenity, the Court holds, if it can be shown to have any socially redeeming value at all–something that would be very hard to demonstrate of any pornography that includes even one scene or element that is not itself sexually explicit.
Having thus invited the Free Speech Coalition’s challenge to the Child Pornography Prevention Act, the Court continued down this same path in its 2002 ruling in the resulting case, Free Speech Coalition v. Ashcroft. So long as it is produced without sexually exploiting any actual children, the Court claimed, even child pornography is not necessarily obscenity. That is, even child pornography may have socially redeeming value and is therefore entitled to the protection of the First Amendment.
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