THE SUPREME COURT GETS IT RIGHT IN ASHCROFT V. FREE SPEECH COALITION:
Why Allowing Speech Concerning Child Abuse Is More Likely To Remedy Abuse Than Perpetuate It

By MARCI HAMILTON


hamilton02@aol.com
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Thursday, Apr. 25, 2002

Last week, in Ashcroft v. Free Speech Coalition, the Supreme Court invalidated the Child Pornography Protection Act of 1996 (CPPA), which had prohibited purely fictional digital depictions of children engaged in sexual acts - depictions that did not involve actual children. The Act's ban on "virtual" child pornography, the Court held, violated the First Amendment rights of adults.

The Court is now being unfairly lambasted for its decision. But critics need to take a deep breath and slow down.

I fully understand the motive behind the attacks on the Court--the laudable instinct to protect children. Yet the Court's decision was not only correct, but will in the long run contribute to the protection of children. Those criticizing the decision have elided the role and value of art in helping us to deal with the problems faced by children.

Why the Court's Decision May Actually Aid in the Fight Against Child Abuse

The Court's decision recognizes a line between digital depictions of actual children engaged in sexual acts, and depictions of the same acts that do not involve actual children. The government, as the Court had previously held in New York v. Ferber, can constitutionally control the former. In this case, in contrast, the Court added that a broad and vague restriction on the latter chills adults' free speech.

Let us first all agree that depicting children having sex violates our collective sense of what is right. In addition, the government has carte blanche to ban "obscenity," under the standard set forth in Miller v. California, and to ban child pornography, under Ferber.

The problem for the critics of Ashcroft v. Free Speech Coalition is that the total suppression the government sought in the CPPA of non-obscene virtual images of child sexuality will not make our social ills--such as incest or abuse of children by trusted adults--go away. Indeed, a total ban like the CPPA makes it more difficult to constructively work out these demons.

How Art Can Help Process the Damage Caused by the Clergy Abuse Scandal

For example, we are barely at the beginning of dealing with the monstrous actions taken by trusted and revered Catholic priests. How will we come to terms with the abuse revealed in the recent scandal?

First, of course, there must be concrete steps taken to secure the safety of children - specifically, legal and church reform centered on protecting children from any future abuse. But assuming that the new structures are indeed put in place, what happens next? Do we blithely return to the path of contentment and relegate the topic of child abuse to the headlines of 2002?

No. It's too late for that. We must face those demons in order to vanquish them, and the motion pictures that inevitably will depict these tragedies offer us a low-cost, risk-free means of doing so. If an artist cannot depict the child being abused, she cannot accurately depict the monster who would abuse him. We will desperately need the opportunity art provides in order to more fully understand and, frankly, to fully condemn such actions.

Depictions of Child Abuse Can Be an Effective Way to Advocate Reform

Those criticizing the Court have the indisputably right moral instinct: to protect children from all harm. However, they do not serve children's interests well if they expect society simply to forgive and forget the harm that is inflicted on children on a regular basis in this society (and certainly not solely by the Catholic Church).

So long as real children are not used in the creation of works depicting child sexual acts, and real children are not exposed to these works once they are completed, the harm to children will be minimal - especially as compared to the harm to the adults' marketplace of ideas by censoring such images. In their rush to shield children, critics of the Court's recent decision forget that some depictions of children engaged in sex will be employed by artists whose viewpoint is sympathetic to the child and unsympathetic to the abuser, and these depictions will make the children's advocates' point far more forcefully and viscerally than a hundred dry brochures would have. In this case, a picture may be worth a thousand appeals for funds.

It has taken this culture a long time to begin to protect children from predators - in part because the topic was so taboo. We should not repeat the mistakes of the past and assume that because child sexual abuse itself is rightly anathema, discussion of it must also be anathema. Instead, let the topic be brought into the sunshine - where its ugly parameters can be accurately assessed, examined, and dealt with.

I hate the abuse of children, as do the members of the Court. But I welcome the artists who will help us to come to terms with our living nightmares, and I believe in their First Amendment right to include such materials in their artworks. As to which of these depictions I will choose to view, that is up to me, and to you. Let the market--not the government--determine that which is valuable in art and healing.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Hamilton02@aol.com

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