Inverting the First Amendment.

AuthorAdler, Amy
PositionChild pornography law

"[T]he issue of children and pornography [is] almost impossible to discuss in a reasoned way."

--Former Solicitor General Drew Days(1)


Child pornography law is the new crucible of the First Amendment. It tests the limits of modern free speech law the way political dissent did in the times of Holmes and Brandeis. It is where popular pressure on courts and legislatures exerts itself most ferociously; it is where the greatest encroachments on free expression are now accepted. Therefore, the law of child pornography is as important for free speech scholars to scrutinize today as was the law of subversive advocacy earlier this century.

The First Amendment as we understand it was born amid grave concern for our national security. The nation was at war. The Supreme Court's first significant free speech cases arose in prosecutions under the 1917 Espionage Act for agitation against the war and the draft.(2) Those cases begot the fabled "clear and present danger" test; they also eventually gave us the ringing dissents of Holmes and Brandeis that still inform our "liberal nostalgia" for that era.(3)

When we think of the First Amendment, we think of this history: battles over subversive advocacy, and later, socialist or communist ideology. Yet, as John Hart Ely points out, our nostalgia for that period in the Court's history ignores the harsh results of the cases. For example, all of the defendants in the first three "clear and present danger" cases ended up in prison for ten years "for quite tame and ineffectual expression."(4) Ely recounts a history of free speech jurisprudence, understood through the subversive advocacy cases, in which the Justices acquiesced to the vexing political pressures of this century, and in particular to McCarthyism.(5) In his view, our commitment to the First Amendment fluctuates in response to cultural anxiety. Thus, the greatest threats to free speech, and the most crucial need for First Amendment vigilance, arise in times of social crisis.(6)

It may seem like sacrilege to say that the law of child pornography is as important to the First Amendment as is the law of subversive advocacy. Even mentioning these different categories of cases in the same sentence may appear to be mixing the sacred and profane. The subversive advocacy cases concerned core political First Amendment speech,(7) whereas child pornography law is about "sordid"(8) sexual cravings.

But the lofty political battles that concerned Holmes and Brandeis are behind us. Pedophiles have emerged as the new communists in our popular imagination. Many scholars have contended that anxiety over child pornography fills the gap left open by the fall of communism. Pedophilia allows us to "locat[e] ... a demon, a creature harder to find since the collapse of the `evil empire.'"(9) As one critic notes: "Pedophilia is the new evil empire of the domestic imagination: now that communism has been defanged, it seems to occupy a similar metaphysical status as the evil of all evils...."(10) Scholars have frequently compared our obsession with child sex abuse to McCarthyism. (Some, in a more histrionic vein, have drawn parallels with the Salem witch hunts.)(11) Just as in McCarthyism, when "concern with domestic subversion began to dominate American life,"(12) so the problem of children's sexual vulnerability "now structures our culture."(13) As I will document below, the nation has declared a new "war"--on child sexual abuse--and this battle defines our era.(14)

Yet for all of its importance, legal scholars have ignored the law of child pornography.(15) In contrast to the robust academic discourse that has grown up around obscenity law or adult pornography, the law of child pornography has been left to occupy its own peculiar and disagreeable realm. It is the least contested area of First Amendment jurisprudence.

While academics have looked the other way, however, child pornography has become a central target of real world censorship. In fact, it has surpassed obscenity as the most vigorous field of censorship prosecutions.(16) It has spawned an elaborate body of case law, and spurred daring legislative measures. Legal scholars have occupied themselves with more tasteful topics--and ones that may appear to present more serious challenges to free speech jurisprudence. Left to its own devices, child pornography law has undergone a dramatic growth spurt, unchecked by critical analysis.

The growth of child pornography law has startling and unappreciated doctrinal importance.(17) As both the definition of "child pornography" and the rationales for banning it have expanded, they have mutually undermined one another. These twin developments have had a synergistic effect: the result is that child pornography law has drifted quite far from its original purpose--to protect children from sexual abuse. In doing so, child pornography law has introduced into the First Amendment a radical view of speech--how it works and why we restrict it.(18) We are so horrified by the crime of child pornography that, to combat it, we have inverted the First Amendment, disrupting established categories and assumptions. Child pornography law--an area of First Amendment jurisprudence that has been virtually ignored by scholars--has widespread implications for all of free speech.

In its early struggles over the meaning of the First Amendment, the Court ultimately rejected the notion that speech could be banned because it might provoke dangerous ideas. Child pornography law, however, has begun to reverse this tradition. As I will show, child pornography law has begun to allow for the categorization and regulation of speech based on how people might respond to it. It has come to permit the government to police the realm of fantasy, a realm supposedly protected under the modern First Amendment.

These developments in child pornography law have subverted traditional First Amendment principles that separate speech from conduct.(19) In fact, these developments have validated a theory of speech that is startlingly similar to the view that has been rejected when offered by antipornography feminists, such as Catharine MacKinnon, and anti-hate-speech theorists.(20) Child pornography law has ratified the dissident theories that underlie these critiques of the First Amendment.

An evaluation of child pornography law is particularly pressing right now. Its importance in new contexts is evident. Courts have begun to cite child pornography precedents to support restrictions on free speech that have nothing to do with children: the D.C. Circuit relied on child pornography precedents last year to support a decision that threatens the right of newspapers to print truthful information of public importance.(21) The need for scholarly attention to child pornography law is even more acute because Congress's most recent child pornography legislation(22) has produced conflicting circuit court decisions;(23) the Supreme Court has decided to review the legislation next Term.(24) As I will show, this legislation has extended the law of child pornography in a direction that has sweeping constitutional repercussions: by banning speech based on its social construction effects, the legislation represents a sharp break with modern free speech doctrine.

This Article seeks to establish child pornography law as a field of First Amendment inquiry. By analyzing the complex body of child pornography law as a whole, I show that its significance for all of free speech is inescapable. Part I of this Article outlines the origins of child pornography law and describes the social crisis around child sexual abuse that has forced the law's growth. Part II analyzes the expanding definition of "child pornography." Here I show that the law has come to threaten a vast array of innocent and valuable depictions of children. It has also become internally incoherent: the definition of "child pornography" has come unmoored from the central rationale that justified the creation of child pornography law as a distinct constitutional category. Part III explores the radical implications of child pornography law for the First Amendment. By collapsing the "speech/action" distinction that occupies a central role in the First Amendment, child pornography law has become the most profoundly revolutionary realm of free speech law.


    "[I]f I have to choose between defending the First Amendment and defending a child, I'll come down on the side of the child." --Wisconsin State Senator Alberta Darling(25) Child pornography law arose in direct response to a cultural crisis: starting in the late 1970s, child sexual abuse was "discovered" as a malignant cultural secret, wrenched out of its silent hiding place and elevated to the level of a "`national emergency.'"(26) At the center of this dark secret lurked child pornography, the product, and some would say the cause, of child sexual abuse.(27) As the Attorney General reported, it was in the late 1970s when "awareness and concern about child pornography escalated dramatically."(28)

    Congress quickly responded to these disturbing revelations.(29) It passed its first piece of legislation, the Protection of Children Against Sexual Exploitation Act, in 1978, just a year after the news media discovered the hidden crisis of child pornography.(30) At the time this Act was passed, however, First Amendment law protected sexually explicit speech unless it met the constitutional definition of "obscenity." The Supreme Court defined "obscenity" in the 1973 case of Miller v. California.(31) The three-part "Miller test" asks: (1) whether the "average person" would find that the speech, "taken as a whole, appeals to the prurient interest" in sex; (2) whether it is "patently offensive;" and (3) "whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."(32) The drafters of the 1978 Protection of...

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