SCOTTSDALE, Ariz. (BP)–If children are indeed the future of this country, then the nation’s highest court will soon decide how much protection our future deserves.
After a disturbing decision by the U.S. Court of Appeals for the 11th Circuit, the Supreme Court has agreed to review next term whether a child pornography law — the PROTECT Act of 2003 — is unconstitutionally overbroad or vague.
The 11th Circuit put the future of our children in jeopardy when it reversed the conviction of child pornographer Michael Williams. The court said, “Non-commercial, non-inciteful promotion of illegal child pornography, even if repugnant, is protected speech under the First Amendment.”
In essence, the court expressed trepidation that the PROTECT Act would criminalize the pandering of material as “child pornography” when in fact it did not meet the legal definition of that term. But it’s a classic case of throwing the baby out with the bathwater.
As an example, the court expressed concern that a “proud and computer savvy grandparent” might be subject to prosecution under the PROTECT Act, simply for sending an e-mail with the subject line “Good pics of kids in bed.”
This assertion would be laughable were it not so tragic. The U.S. Department of Justice argued as much in asking the Supreme Court to hear the case, saying that the 11th Circuit read the section in question “more broadly than its language warrants.”
During my tenure serving the Reagan administration as a federal prosecutor and as the director of the attorney general’s Commission on Pornography, we did not invest our time persecuting grandparents for innocent letters. The feds never went knocking on Grandma’s door. We did, however, spend countless hours attempting to navigate the legal roadblocks that the ACLU, the pornographers and their allies constructed to make it difficult to protect children from the abuse and exploitation of child pornography. And this latest argument is just another in a long line of roadblocks put up by the ACLU and its allies that protects the perverted desires and profits of child pornographers at the expense of innocent children.
In 1982, the Supreme Court was given its first chance to address the issue of child pornography in New York v. Ferber. The ACLU submitted a friend-of-the-court brief to the court in this case, arguing that child pornography is protected by the First Amendment. Thankfully, the justices rejected this argument and ruled unanimously that child pornography was without First Amendment protection.
This has not deterred the ACLU as it continues to champion the legal demands of pornographers, pedophiles and child molesters. In Iowa, the ACLU was instrumental convincing a federal judge to strike down a law that prohibited convicted sex offenders from living within 2,000 feet of schools and day-care centers. Fortunately, an appeals court overturned the ruling. In Indiana, the ACLU defended an alleged pedophile convicted three times of molesting children. After he was released, he talked in a group therapy session about visiting a local park in order to fantasize about having sex with the young children playing there.
When I served on the Commission on Pornography, I heard the ACLU’s national legislative counsel testify that all child pornography — no matter how heinous — once created, is fully “protected” by the First Amendment. The ACLU added that no government should be allowed to limit the distribution of child pornography between “consenting adults.”
Unfortunately, because of the gross misapplication of evolving technology, the ACLU and its allies may get their wish if the Supreme Court does not respond strongly to the case before it.
The 11th Circuit objected to another phrase in the PROTECT Act, which amended the definition of child pornography to include “any digital or computer-generated image that is ‘indistinguishable’ from that of a minor engaging in sexually explicit conduct.” The 11th Circuit contends that such material can be produced without harming children and must therefore be protected.
A reasonable observer can easily discover that the judges ignored several key facts about this provision. The term “indistinguishable” means that an ordinary person viewing the depiction would “conclude that the depiction is of an actual minor….” Not only does this exposure to digital pornography still promote the sexual abuse and exploitation of children, it also — if allowed — provides pornographers with an incredibly effective legal defense. Already, defendants have begun to claim that actual child pornography images in their possession are only virtual images, forcing the government to find proof that each anonymous child shown is real. Because of the technological advances of the 21st century, this burden is not only prohibitively expensive, but also unachievable, issuing a free pass to pornographers throughout the country. It leaves countless exploited children as permanent victims.
The PROTECT Act was created for this purpose — to prevent the sexual exploitation of children. As Congress noted, “The Government thus has a compelling interest in ensuring that the criminal prohibitions against child pornography remain enforceable and effective.”
Our children are the future of this nation, and they must be protected from criminal pornographers. The context is clear. Protecting the welfare of children clearly takes precedence over concerns about the bizarre desires and profit margins of the porn world, and there’s no doubt about the fact that the two are in conflict here. It’s imperative that our nation’s high court see through the smokescreen and recognize that it’s our children’s liberty and future that are truly at risk. All that is left is for the court to act … and to PROTECT.
Alan Sears, a former federal prosecutor, was executive director of the Attorney General’s Commission on Pornography under President Reagan. Alan E. Sears now is the president and CEO of the Alliance Defense Fund, a legal alliance defending religious liberty through strategy, training, funding and litigation, online at www.alliancedefensefund.org.