First Freedom Op-Ed Service


The 13th commentary in the op-ed series, January 1997

PROTECTING OPINIONS THAT WE LOATHE

By Joan Kennedy Taylor

Throughout history, whenever technology makes the dissemination and exchange of information easier, it has been accompanied by calls for censorship.

Today, the exponential growth of cable television and the Internet is accompanied by powerful censors in high places.

Janet Reno told television producers unabashedly that if they didn't do something about violence on television, the government would. Congress passed a law restricting not only "indecency" but information about abortion on the Internet.

And now the censors have found the perfect opening wedge with which to justify the revision of First Amendment guarantees protecting all unpopular, outrageous, and disruptive speech — the expansion of child pornography laws.

In the fight to preserve individual rights, those of us who care about free speech have had to make common cause with and defend some very unsavory characters. Nazis, Ku Kluxers, Communists, racists, and sexists have all needed their day in court. But today, unfortunately, we are faced with defending one of the most unsavory groups, those who enjoy child pornography.

I for one would certainly prefer not to have to defend them. The sexual assault of children by adults should be severely punished, whether such assault is done by seduction or force; the reproductions of such assaults to be sold as pornography makes those pornographers accessories to those crimes.

Feminist women, many of whom are mothers, want children to be protected from this sort of bodily and psychological harm. But the new so-called Child Pornography Prevention Act (CPPA) goes far beyond society's interest in punishing real abuse against real children and sets a dangerous precedent — it creates what can only be described as a "thought crime."

The previous standard, declared in the eighties by the Supreme Court in New York v. Ferber was that even non-obscene child pornography does not have First Amendment protection because depiction of the actual sexual abuse of children harms "the welfare of children engaged in its production."

Harm to children should continue to be our standard, but the CPPA moves from properly decrying "the use of children in the production of sexually explicit material" to the possible use of images to "whet ... sexual appetites" or seduce children.

This is the argument that has been used throughout our history to ban expressive material — that it may be used to incite wrongful actions. A dangerous argument, because, as Oliver Wendell Holmes once wrote, "Every idea is an incitement."

If it were proper to ban speech and images because of what they might incite, political speech would be among the very first casualties.

The worse the action potentially incited, the stronger the temptation to ban expression. But if we want to maintain a free society, to quote Holmes again, "we should be eternally vigilant against attempts to check the expression of opinions that we loathe."

The CPPA shifts its concern from a desire to protect children from abuse (a desire we all share) to an effort to prohibit viewing of images purporting to show children in sexual postures. It makes no difference whether actual children have been used or not; computer generated images are to be banned as well, to guard against "whetting appetites" and seduction.

No statute can reach all the imagery that might whet sexual appetites: Pedophiles have been known to hoard the Sears Roebuck catalog, because they were stimulated by the ads selling children's underwear.

The CPPA reiterates an argument that we have seen before, that women and children are so in need of government protection from certain expressions that the expressive rights of all citizens must be curtailed. As a feminist woman, I strongly protest this view: Women's interests, as well as everyone else's, require a strong First Amendment.

Margaret Sanger was jailed for disseminating birth control information at the turn of the century. Eighty years later, government was still seeking to suppress its dissemination, using the justification that children might be exposed to it (in Bolger v. Young the Supreme Court held the effort to be unconstitutional).

We all should be protected from crime, of course, but moving from trying to protect actual children from harm to trying to punish the possessors of "nasty material" could be the opening wedge in an assault on the most valuable foundations of our civilization.

If a man uses a picture to seduce a child, punish the man for that act, not the picture.

(Joan Kennedy Taylor is the author of Reclaiming the Mainstream: Individualist Feminism Rediscovered, Prometheus Books, 1992, and is the vice president and co-chair of the legal committee of Feminists for Free Expression, a national non-profit anti-censorship organization.)

(This column is distributed by the First Freedom Op-Ed Service, an independent project of the American Library Association's Intellectual Freedom Committee and the Freedom to Read Foundation Board of Trustees.)


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