The Crime of Lying About Fake Child Pornography
Jacob Sullum | May 19, 2008, 2:27pm
Today the U.S. Supreme Court upheld a federal law that makes it a crime to offer or solicit child pornography. This law defines child pornography more narrowly than an earlier statute that was overturned by the Court on First Amendment grounds, and it does not seem to leave a lot of room for punishing or chilling protected speech. But there is this strange wrinkle, noted by Justices David Souter and Ruth Bader Ginsburg in their dissent: In the case of a person offering to sell or transfer pornography, he either has to believe the images feature actual children or intend that people receiving the offer believe that. The images need not in fact feature actual children, however (or even exist). Yet the Court has said that "virtual child pornography," featuring computer-generated or manipulated images but no actual children engaged in sex acts, cannot be constitutionally prohibited (unless it is deemed "obscene"). Hence this law punishes, among other things, speech about transactions involving legal material, on the condition that the person offering it either thinks or claims it is illegal. In such a case, the transaction itself is legal, but talking about it is not.
Today's decision is here.
James Anderson Merritt | May 19, 2008, 6:04pm | #
# Chris Potter | May 19, 2008, 2:49pm | #
# How is this thoughtcrime? You can think
# something is child porn as much as you want,
# as long as you don't offer to sell it to
# someone else.
# Robert | May 19, 2008, 2:53pm | #
# Blay Tranoff explained to me years ago
# that all crime is thought crime --
# that what makes an act of crime is all
# about intentions. That's how attempts
# can be criminal, etc.
A real crime involves harm or sincerely attempted harm to others, or damage to their property. You can be responsible for harm without being criminal (the basis for negligence or wrongful death awards in civil cases, for instance). You can be criminal without actually causing real harm, but only if you take deliberate steps, intended by you to cause harm, which fail or are foiled in some way. This is an aspect of the law that is ripe for abuse, however, and I think that police stings go well over the line of proper governmental conduct. (In passing, I should note that I have never been able to accept the asymmetry that the government can lie to citizens with seeming impunity, but that citizens are guilty of a crime if they -- without being sworn, which is a different matter -- knowingly utter false statements to government. Right there, the government is no longer "of, by, or for the people," but is a distinct thing above and apart from them.)
As far as whether trafficking in child porn under the present rules is a thoughtcrime or not: Was there actual harm done to any real person? Did the trafficker participate in the harm, taking definite action with the expectation that harm would be the result? (For instance, did the trafficker think he was commissioning the production of porn -- as in an internet "pay for play" situation -- during which the minor participants would be harmed? Did be buy a ticket and sit in the audience while children were abused onstage, or behind a window?)
The point of criminal law is to capture and appropriately punish those who knowingly cause actual harm, or who would have done so but for unforeseen accident, or intervention by other parties, when harm was otherwise inevitable. Trafficking in porn doesn't qualify on that account. Any harm that may have been done is done by the time the pornographic object exists, and the people who did it should be held responsible for that. To make harmless commerce in harmless objects illegal, however repulsive they or the circumstances of their production may be to certain people, needlessly distracts the law from dealing with real crimes, of which there are plenty to command its attention. When transactions that are not harmful in and of themselves are made not only illegal, but criminally so, because of what the participants are THINKING during the transactions, then it is only the thought itself that is being punished, and that is the very definition of thoughtcrime.
Now, if someone convinces another that the production of some item of child porn actually involved real children when it did not, that is fraud, which we can all agree is certainly a crime. If someone is abusing children in the production of porn, bust the abusers. The more the law can concentrate on real harm and those who cause it, the better for society. Once the law starts defining and prosecuting thoughtcrime, divorced from all notion of actual harm to real people, the worse for all, as it won't stop with just the disgusting perverts, any more than the income tax stopped with the filthy rich that it was originally targeted to tax, or the tools of RICO were limited to dealing with the scummiest of organized criminals.
