Punishing sexual fantasy.

• Author: Gilden, Andrew
• Position: III. Trouble with Punishing Sexual Fantasy through Concluding Thoughts and the Path Forward, with footnotes, p. 460-491

3. TROUBLES WITH PUNISHING SEXUAL FANTASY

In the cases above, legal actors appear able to see only the potential harms in interactive explorations of sexual fantasy: harms to children from their mother's sexual desires, harms to children themselves from presenting themselves in a sexual manner, and harms to third parties from dark fetishes. Although the potential for harm is certainly present in each scenario, there is often no demonstration of actual or likely harm to a third party.

This Section challenges the tendency and willingness to conflate sexual fantasy with evidence of harm. First, this dynamic undermines free speech values--the First Amendment does not permit state actors to decide what types of consensual conversations people can have, no matter how gruesome and valueless they may appear. Second, this dynamic sidelines the potential benefits of the Internet for exploring sexual fantasies, particularly regarding nonnormative sexual desires. Third, efforts to police and punish sexual fantasy are misaligned with empirically supported data about the actual risks of sexual harm and the Internet.

1. Free Speech and First Amendment Protections for Fantasy

   The scenarios outlined above are at odds with the First Amendment framework for distinguishing fantasy from reality, as set forth by the U.S. Supreme Court. (209) In Jacobson v. United States, the Court overturned a child pornography conviction where the government failed to proffer sufficient evidence of predisposition to commit the charged conduct:

   Petitioner's responses to the many communications prior to the ultimate criminal act were at most indicative of certain personal inclinations, including a predisposition to view photographs of preteen sex and a willingness to promote a given agenda by supporting lobbying organizations. Even so, petitioner's responses hardly support an inference that he would commit the crime of receiving child pornography through the mails. Furthermore, a person's inclinations and "fantasies ... are his own and beyond the reach of government." (210) The Court recognized that a sexual attraction to unlawful activities and related fantasies are distinct from intent to actually break the law by engaging in those activities. (211) Even though a person's fantasies may show a predisposition to reading and writing about unlawful, harmful, or coercive sex, free speech commitments mandate that such expressive or imaginative activities--no matter how objectionable--be decoupled from conduct that is likely to negatively impact other people. (212) Speech is by no means inherently harmless, (213) and the speech/conduct distinction is hardly crystal clear, (214) but fantasy, expression, and imagination at the very least require clear-headed, particularized, and empirically supported justifications for legal regulation and punishment. (215)

   The First Amendment protects pure fantasy--reading and writing about activities that could absolutely be punished if they occurred in the physical world. Fourth Circuit Judge Gregory, dissenting from an opinion finding a set of pedophilic stories to be obscene, observed that some of the most highly regarded books and movies, including Lolita (216) and American Beauty, (217) delve extensively into unlawful sexual fantasies. (218) From his perspective, "the iconic books and movies above render unsustainable the claim that writings describing sexual acts between children and adults, generated by fantasy, have no demonstrated socially redeeming artistic value." (219) He noted that even though "Whorley's e-mail fantasies, if carried to fruition, would undoubtedly subject him to criminal liability ... [his] actions can easily be separated from the potentially illegal acts about which he fantasized." (220)

   Moreover, recent Supreme Court decisions have hammered home that, outside the very specific confines of obscenity law, disgust is an impermissible basis for regulating speech that does not pose a reasonably imminent threat of harm to another person. In Brown v. Entertainment Merchants Ass'n, the Supreme Court struck down a California statute prohibiting the sale of violent video games to minors. (221) The statute expressly targeted some of the most gruesome types of games--those in which the options involve the player "killing, maiming, dismembering, or sexually assaulting an image of a human being." (222) Nonetheless, the Court emphasized, again, that the First Amendment consistently protects objectionable, offensive expression: "esthetic and moral judgments about art and literature ... are for the individual to make, not for the Government to decree." (223) In the context of video games, it was insufficient for the government to point either to the desire to protect minors or to the inherently interactive nature of the content. The Court noted that "the books we give children to read [such as Grimm's Fairy Tales, Lord of the Flies, and Dante's Inferno] ... contain no shortage of gore." (224)

   The majority opinion in Brown took particular issue with Justice Alito's dissent, which included "considerable independent research" to identify particularly gruesome video games, in which victims were, for example, dismembered, decapitated, and disemboweled. (225) The majority noted that "Justice Alito recounts all these disgusting video games in order to disgust us--but disgust is not a valid basis for restricting expression." (226) The Court suggested that Justice Alito's goal was to "arouse the reader's ire, and the reader's desire to put an end to this horrible message." (227) And this mode of argument cut to the core of the free speech dangers presented in the case, namely, that "the ideas expressed by speech--whether it be violence, or gore, or racism--and not its objective effects, may be the real reason for governmental proscription." (228)

   In many of the cases surveyed in the previous sections, judges, juries, prosecutors, and law enforcement officers were extremely uncomfortable with, if not outright disgusted by, the sexual desires laid bare before them: teenagers experimenting with their sexuality, adults discussing their violent or pedophilic fantasies, parents simultaneously raising kids while daring to have a sex life. And in these circumstances, it is the ire and disgust--and not the "objective effects"--that veer legal decision-making away from free speech and due process commitments. Judicial opinions and prosecutors' arguments detail parties' criminal, cringeworthy, and taboo sexual desires as a way to justify carving out sexuality and the Internet from other realms of potentially harmful human activities within law's purview. (229)

   A core message from First Amendment jurisprudence is that the development and expression of ideas, no matter how uncomfortable they might make us, are entitled to protection, notwithstanding the evolution of communicative technologies. (230) It is true that, unlike readers and authors of books, the individuals in the cases surveyed above are using Internet-enabled devices to explore fantasies in real time with another person. From a First Amendment standpoint, however, this marked increase in interactivity is not dispositive. For example, although the video games at issue in Brown "enable[d] participation in the violent action," the Court observed that "all literature is interactive.... 'Literature when it is successful draws the reader into the story, makes him identify with the characters... [and] experience their joys and sufferings as the reader's own.'" (231) The interactive nature of video games did not require that they be treated as qualitatively different, let alone removed from the reach of strict scrutiny. (232) In the virtual reality context, Professor Marc Blitz has similarly observed that "[a] virtual world we construct from our imagination should be no less protected than a drawing or animation we create to give more vivid form to a dream sequence, or a journal entry we use to reflect upon and revise our thoughts." (233)

   It may be difficult to appreciate the continuities between Internet communications and more traditional media, not just due to the increased interactivity of fantasy, but also due to fantasy's increased externalization. Even though a sexually charged book like Lolita (234) or Fifty Shades of Grey (235) might provoke and indulge a reader's fantasies, those fantasies often play out in the reader's mind, beyond the reach of third-party surveillance. In the Internet context, by contrast, fantasy often takes the form of written text, captured on the user's hard drive and stored on third-party servers. (236) Several First Amendment and privacy scholars have observed, however, that monitoring, recording, or restricting externalized manifestations of thought and imagination can severely chill cognitive processes at the core of free speech. (237) Neil Richards, for example, has persuasively linked free speech with the value of "intellectual privacy." (238) As Richards notes, there is a "fundamental need for privacy surrounding an individual's intellectual explorations," even if those explorations take place on social media platforms or are recorded on a third-party server. (239)

   Nonetheless, courts have repeatedly lumped together interactive texts with conduct that might imperil the well-being of young children, sexually exploit teenagers, or pose real dangers to women's health and safety. (240) As the law is increasingly presented with digitized evidence of individuals' intimate lives, the law has struggled to view the data trails of fantasy as precisely that--external recordings of mental processes and not damning proof of the scenarios described. With respect to the Ninth Circuit's decision in Curtin, discussed above, (241) Professor Richards drives home this point powerfully:

   Reading even disturbing incest stories does not necessarily make a person a child molester any more than owning a copy of Natural Born Killers makes one a...