Q: What is the answer to speech you don't like? A: Always more speech.
The history of censorship spans as far back as 3400 B.C, when the Ancient Egyptians created a strict rubric for what could be considered "permissible" artwork. This form of censorship unfortunately did not end with the Egyptians; it lives on with the same pervasiveness as the image of Tutankhamen.
Under U.S law, images of any kind are considered to be forms of speech. To those readers who believe in the idea of oppressing people for their own safety, reflect upon this question: whom are you protecting by banning speech?
Legal systems inherently fail at legislating ideas; it is impossible for a law to change the way people think. This is precisely the reason why obscenity laws fail to promote the social harmony they claim to strive for. By preventing actions through legislation, harmless outlets for reckless desires are removed and negative impulses remain.
The most prolific target of the moral "utopians" is pornography. The very word pornography produces in some people the kind of visceral reaction that can only be equated to chronic gastritis. Even today, if Americans were given the choice to broadcast gratuitous violence or erotic sex, it is the violence that is often opted for. What is it about the image, or the very idea of sex between two consenting adults that makes it patently more obscene than a slasher movie?
Anti-pornography activists somehow equate sex with pornography and maintain that both have infiltrated all aspects of American culture and have led to the decomposition of marriage, love and "traditional moral values." The most widely held belief among these groups is that pornography results in the encouragement of rape, pedophilia and other sexual crimes. This statement is rooted in untruth. In reality, the increased availability of pornography, particularly Internet pornography, has led to a decrease in sex crimes.
According to Slate, a 10 percent increase in Internet access produces an approximately 7.3 percent decrease in rape. The largest declines came from states where Internet usage was most widespread. Todd Kendall, professor at Clemson University, affirms that the effects of Net access remain unchanged even after accounting for the obvious variables such as population density, alcohol consumption and unemployment rates. Futhermore, the study concluded that Net access did not produce a similar impact on other violent crimes, including homicide. It is therefore not difficult to suppose that access to pornography has created a victimless outlet against rape.
While adult pornography seems easier to stomach, child pornography seems to be a universal taboo. In 1996, the Child Pornography Prevention Act (CPPA) was passed, making the creation or possession of child pornography illegal, even when the images were computer generated and in actuality made without the participation of real children.
The CPPA was struck down in Ashcroft v. Free Speech Coalition (2002) for being "unconstitutionally vague." The CPPA prohibited any sexually explicit material that "appears to be" or "conveys the impression of" involvement of a minor. This is an obvious problem. If images are "virtual" child pornography, then there is no child victim. The government made the argument that the images could be used to lure real children, but as was stated in the court's majority opinion, the same can be said about a seemingly innocent device such as candy, and it would be absurd to propose this be banned. It is obvious that anything can be taken and used in a malicious manner, but this is not enough to call for a full-out ban.
The ruling in Ashcroft v. Free Speech Coalition raises the question, what constitutes child pornography? Is it enough that a naked child appears in the image? If so, then the majority of parents in this country ought to be arrested for possession of sexually perverse family photo albums, but no one wants to claim that mom, dad, grandpa and grandma are dirty smut peddlers. What about a sexualized image of a child? If so, say bye-bye to those filthy children's beauty pageants. The point is that "child porn" is so loosely defined that even the most innocuous picture of a 4 month old's bare bottom in a bathtub would be considered the pinnacle of depravity if put in a different context.
There is absolutely no scientific evidence that shows that the availability of child pornography increases the likelihood of crimes against children. In Japan, lolicon (portmanteau of "Lolita complex"), a genre of Japanese cartoon comics where childlike girls are represented in a sexually suggestive manner, is readily available, as is graphic and violent pornography. Milton Diamond, professor of anatomy and reproductive biology at the University of Hawaii, and Ayako Uchiyama of the National Research Institute of Police Science, conducted a study published in the International Journal of Law and Psychiatry which concluded that the increased availability of this material has led to decreases in sexual crimes in Japan. They further conclude that the decrease has been so dramatic that Japan has the lowest levels of reported rape and the highest levels of arrests and convictions of any developed nation in the world.
Of course, sexual images of the rape or sexual assault of a child are deplorable, but its illegality stretches only as far as does the illegality of adult rape. It is the very act of rape that makes whatever medium associated with it intrinsically bad.
Should we be focusing our money and law enforcement on cracking down on those who enjoy reruns of Full House for reasons other than the comedy, or should we focus instead on actual child predators?
I am in no way condoning child pornography, but if the ultimate intent is to eradicate it, the restriction of speech will not get us there. So long as there is an appetite for it, images will appear, and it is much more comforting to know that someone is spending their paycheck downloading simulated child pornography than roaming the streets for actual children to abduct and rape.
Finally, what about the obvious objection that materials of this nature are obscene and thus do not constitute protected speech? As Mark Neunder, professor of philosophy at Miami Dade College, states, "No one has the right not to be offended. If people did, then virtually everything could be censored. But since obscenity is defined in terms of what is offensive, no one therefore has the right to censor what is obscene."
Whenever someone says there ought to be a law, it is very often the case that there ought not to be; the ultimate firepower against objectionable materials is clear: more speech, not less.