U.S. Supreme Court justices debated Tuesday the conflict between artistic expression and the unintentional implications of the 1996 Child Pornography Prevention Act, which was passed to prevent sexually explicit depictions of minors but could result in censorship of mainstream media.
The law bans not only visual depictions of children engaged in sexual activity, but also any images that convey the same idea. Virtual pictures created from real photographs of children, as well as realistic computer reproductions, are proscribed under the law.
Congress and former President Bill Clinton originally passed the law to curb the proliferation of virtual child pornography over the Internet. The Free Speech Coalition, however, challenged the law, contending it is too broad and thus inhibits speech protected under the First Amendment. After the presentation of oral arguments Tuesday, the justices explored this idea in questioning the attorneys about potential censorship in movies that contain images of minors engaged in sexual activity.
Although conservative Justice Antonin Scalia questioned the artistic value of such films, others, like Justice Stephen Breyer asked if the law makes him guilty for renting "Titanic," "Traffic" and "Lolita" - all of which depict youths having sex - at the video store.
This artistic debate underscores why the law should be declared unconstitutional. If the nation's highest court can't determine the parameters according to which a Hollywood movie is either art or kiddie porn, what hope is there for a clear judgment from the rest of the American legal system?
As Deputy Solicitor General Paul Clement said to the justices, the measure is not supposed to arrest people who rent movies from Blockbuster. But the problem is that the line separating art from pornography is much less clear for other media forms, such as photos, computer drawings or literature.
While no one realistically expects the kinky scenes from "American Pie" to be censored, the law is fully capable of silencing the unconventionally creative who lack the financial means to defend their art.
But most disturbingly, these issues detract from the original, noble intentions of the law - to crack down on the recent, alarming proliferation of child pornography on the Internet.
The government has a duty to uphold society's welfare by protecting children from pedophiles. Unfortunately, miring the courts in issues of artistic freedom only bogs down law enforcement while child pornographers slip through the cracks.
Photo-realistic images of children are just as bad as actual pictures. They may not exploit individual children, but they do target children as a whole. The Supreme Court has already ruled in previous cases that the law has a greater responsibility to protect children in issues of free speech because of their inherent vulnerability.
The Child Pornography Prevention Act needs revision, but the intent behind it does not. Instead of striking down the law altogether, the Supreme Court should issue a decision making it clear the object of the law is within the proper sphere of governmental regulation even though the application is unconstitutionally vague and construed too broadly. A more effective piece of legislation, modeled on the 1996 act, would allow the pornography versus art issue to be decided on a case-by-case basis. It would differentiate between the two by requiring proof that the material is socially harmful, not simply sexually explicit.
Although critics may contend the vague definition drags innocent artists into the courtroom, the safety of our children is far more important than inconveniencing adults. Precedent will be set for determining artistic leniency in such legal exercises, creating a far more accurate standard than our present legislation.
While we should never compromise our children's safety, protecting them by restricting the First Amendment only inflicts another injury.
