About 12 years ago I was sitting around an editorial meeting at a newspaper I was working at the time when the issue of some bill to ban child porn came up. I pointed out that most child porn laws stood on relatively solid ground since the very production of child pornography is in itself a criminal act, but that within a couple decades the case would be more problematic as advances in computers allowed for the creation of realistic child pornography that didn’t require committing such a crime. What would the Supreme Court do then?
I think most of my fellow writers thought I was either completely offbase about how fast computer graphics technology would develop and/or concerned about why I always looked for the dark side in these sorts of things. Now Slashdot points out that the Supreme Court is going to decide whether or not virtual child porn is protected by the First Amendment.
It will probably be very tempting for some of the justices to argue that even when it is completely virtual, child pornography is obscenity and lacking completely any scientific or artistic merit. Unfortunately, such a ruling would create a huge mess. As an Los Angeles Times story points out, would adult models who look like they are minors also be covered? Soon sorting out the side effects of such a ruling becomes unbelievably difficult and tortuous.
On the other hand, the idea of people buying and selling child pornography, even completely virtual, is a highly repugnant one and if the Supreme Court does rule that it is protected speech, watch for a firestorm to develop (especially if it’s a close 5-4 vote with the Court’s liberals on one side and its conservatives on the other). Polls already show a majority of Americans think the courts are already too permissive in their toleration of speech, and a pro-child pornography ruling could tip those scales.
In fact, if the Supreme Court does rule that virtual child porn is protected speech, an amendment to overturn such a decision would probably have as much chance of becoming part of the Constitution as any proposed in the last 30 years (in fact I’d be very surprised if such a movement failed — the support for it would be tremendous).