Law Students

The Spreading Confusion About Child Pornography

By "PG"

Echoing the theme of a 2006 lawsuit against Google (which the plaintiff rapidly moved to dismiss), Sen. McCain seems to conflate two distinct problems in the threat posed to human dignity by internet pornography.

... However, there is a darker side to the Internet. Along with the access and anonymity of the Internet have come those who would use it to peddle child pornography and other sexually explicit material and to prey upon children.
John McCain has been a leader in pushing legislation through Congress that requires all schools and libraries receiving federal subsidies for Internet connectivity to utilize technology to restrict access to sexually explicit material by children using such computers. While the first line of defense for children will always be strong and involved parents, when they send their child to school or drop their child off at the library, parents have the right to feel safe that someone is going to be looking out for their children.

McCain did introduce the bill that eventually became the Children's Internet Protection Act, and CIPA has survived constitutional challenge. However, I am puzzled as to why McCain's campaign site mentions child pornography and child predation under the heading "Protecting Children from Internet Pornography." Child predators tend to find victims through social sites and applications (MySpace, AIM), not by somehow finding and contacting other users of sexually explicit sites.

The harm that legislators prevent through severe penalties for possession of child pornography is not that other children will see such images, but that children will be used to make the pornography. The Supreme Court struck down the Child Pornography Prevention Act of 1996 for outlawing sexual images that appeared to be of children but were made using adults or through digital manipulation. Even the dissenters in Ashcroft v. Free Speech Coalition premised their argument on the difficulty for prosecutors of distinguishing between real instead of fake child pornography, not on the inherent evil of the latter.

Moreover, CIPA was controversial less for its restrictions on schools than on libraries. The Court managed to uphold the law by getting Kennedy's vote, and his concurrence relied on the government's claim that libraries would remove the filter upon request of any adult user. The idea that "parents have the right to feel safe that someone is going to be looking out for their children" when they "drop their child off at the library" makes little sense. Schools may stand in loco parentis (though only Thomas believes they are not simultaneously state actors), but libraries and other public facilities have no such status. Library staff lack any special relationship to children who enter the premises. Unlike teachers, they have no statutory obligation to report suspected abuse, and expressly disclaim responsibility for any harms children encounter while at the library. Some parents might like to think they can shuffle off responsibility for their children by dropping them at a library -- that, in McCain's words, they have a "right" to do so -- but they cannot.

Child pornography and predation are matters of governmental concern and proper for regulation because they entail obvious harms. "Peddl[ing] ... other sexually explicit material," in contrast, is protected activity no matter how much Republicans may dislike it. McCain cleverly cloaks the conservative antagonism to freedom of sexualized speech in the irreproachable justification of doing it For the Children. He probably realizes that given Americans' level of consumption of online sexual material, he would lose lots of independents' votes by actually stating that pornography in general is inimical to human dignity.

BY THE WAY: For the in-country, non-environmentalist, non-veteran, irreligious straight white male who feels left out by the People categories on Obama's website, the Republican candidate's site offers another option: Lawyers for McCain. McCain is the remaining candidate who isn't a lawyer, and was unusual even within the plausible Republican field (Romney, Giuliani, Thompson) for lacking a law degree.

Full post as published by De Novo on March 03, 2008 (boomark / email).