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  1. The Social, Political, and Legal Construction of the Concept of Child Pornography (Journal of Homosexuality, 2009)
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  3. http://www.informaworld.com/smpp/content~content=a908410504
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  6. Introduction
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  8.  
  9.     In the upper middle classes, the 70's notion that kids were tougher than we thought—tough enough to withstand messy divorces, to hear the unvarnished truth about nearly everything—has given way to an anxious sense of children as delicate vessels.” (Talbot, 2000)
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  11.     The decision by Representative Mark Foley of Florida to resign after the disclosure of his sexually explicit e-mail and text messaging exchanges with Congressional pages has been followed by a flood of demands … that he face “the full weight of the criminal justice system.”
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  13.     Legal experts … said that weight could be considerable… .
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  15.     In the past … prosecutors have exercised a great deal of discretion in deciding whether to pursue such cases. In the absence of physical contact, said … a law professor … some prosecutors reviewing e-mail messages like Mr. Foley's “could say, 'This is really gross, I need to take a shower,' but not charge” the sender with a crime.
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  17.     But [today], “There are cases in which people have done stuff that is not significantly worse and have had the book thrown at them.”
  18.  
  19.     Earlier this year, for instance, the Arizona Supreme Court upheld a 200-year sentence for a former Phoenix high school teacher convicted of possessing child pornography. The teacher … was not charged with transmitting pornography or with having unlawful contact with minors. (Liptak, 2006)
  20.  
  21. Although the sexual aspect of politics is arguably at least as important as the economic, sex has not yet had its Karl Marx. Most people consider sexual feelings and behavior natural rather than socially molded, and the politics of sex—attempts to make public policies controlling sexual activity and the types of sex that are legitimate or that can be discussed or portrayed—are often considered trivial and less worthy of study than the politics of race or class or gender. Only a few theorists, like Wilhelm Reich, Sigmund Freud, Herbert Marcuse, Norman O. Brown, Michel Foucault, and some feminists have focused on sexual issues.
  22.  
  23. This neglect is surprising, since public regulation of sexual behavior and representation is common, highly contested, and follows different patterns than regulation in other areas. Sexual politics establishes hierarchies and confers legitimacy (Rubin, 1984).1 It creates the vocabulary used to describe and evaluate an important part of human behavior. In the last 50 years marriage, youth sex, contraception, homosexuality, sex education, abortion, pornography, and obscenity have all been objects of intense political battles. The government's concern with sexual issues is considered a part of the police power to protect the health, safety, and morals of the people. It is grounded in ancient and medieval theories, and has been carried over with different guises. A variant of this argument claims that behavior which violates the dominant moral structure of the society dissolves the glue that holds society together.
  24.  
  25. A more restrictive view of the government's role in morals issues was developed by the classical theorists of liberal democracy. They grounded the government's right to limit behavior in what became known as the “harm principle.” John Stuart Mill's formulation is probably the most famous. He argued that
  26.  
  27.     the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant … In the part which merely concerns himself, his independence is … absolute. Over himself, over his own body and mind, the individual is sovereign. (Mill, 1993, p. 12)
  28.  
  29. Mill placed some restrictions on this principle: It applied only to adults who were free, competent to choose, and informed of the issues. Although there are continuing conflicts, in the late-twentieth century the harm principle arguments largely become dominant in the sexual area, at least in the Western industrialized nations. Despite important exceptions like gay marriage, political control of adult sexual behavior has increasing given way before contraceptive devices, individualism, growing distrust in the morality of the political classes, gay rights movements, feminism, and rock music. By the beginning of the twenty-first century, cultural and legal restrictions on masturbation, homosexuality, consensual heterosexual sex outside of a marriage relationship, and private sadistic and masochistic relationships between consenting partners, had vastly decreased. Concurrently, images of adult sexual activity increased exponentially. Many of the images now in popular culture would have been forbidden 50 or 100 years ago. Erotic art has also become more legitimate, and many of the paintings and videos found in museums would previously have been banned.
  30.  
  31. The most significant exception to this trend has centered on the nineteenth-century construction of the vulnerable, frail, and sexually innocent child (for this article, defining the category as young people between 11 and 15 years old)2 who is viewed as needing protection from adult depravity and desire. The current view of young people mirrors the Victorian construction of the innocent woman who was thought to be corrupted by being viewed lustfully by others, or by having erotic thoughts and desires herself. It is interesting that, although this construction of youth was created by adults and therefore presumably serves their own purposes, it embodies the view that adults are sinful beings that have fallen from a childhood period of grace and virtue.
  32.  
  33. This secular version of the Eden story is supported and protected by a legal concept of child pornography that differs from the way that any other type of speech or image, including adult obscenity, has been defined and treated. Even the phrase “child pornography” is misleading, since there are comparatively few pornographic pictures of young children, and those that do exist are almost all simple nudes rather than pornographic pictures in the adult sense. The commonly imagined images of adults penetrating children and youths, or having any kind of sex with them, are almost nonexistent. Those that do exist are usually old and were obviously taken in poor colonial countries. In this article, the U.S. child pornography laws and the Supreme Court's logic in separating child pornography from adult pornography/obscenity criteria will be discussed. Underlying these decisions are empirical and ideological assumptions that need to be further examined.
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  36. A SEPARATE SPHERE: YOUTH SEXUALITY
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  38.  
  39.  
  40. As Gayle Rubin (1984) noted in “Thinking Sex,” we treat sex differently from other components of our political and social culture. Usually adults try to socialize young people into their value system, but in the sexual area youths are protected from the adult sexual value system rather than socialized into it. The young are neither supposed to desire sex nor be sexually desirable. There is a strong movement to glorify abstinence as the most desirable alternative, and even those who oppose the “abstinence only” movement usually do not encourage or celebrate youthful sexual activity. Rather, their arguments are framed in a sex-negative way, urging that if teens cannot be prevented from having sex they should at least know about necessary protections. We encourage the young to experiment and broaden their taste in many areas, although we discourage sexual experimentation and almost always frame statistics indicating a decrease in teen sex as progress. We present the problems of unwanted pregnancies or sexually transmitted diseases and oppose attempts to educate youths about these issues, or supply birth control pills, condoms, or “morning after” pills on the grounds that they encourage and increase youth sex. But these are not the issues; it is the sex itself that is the issue.
  41.  
  42. Although the 1960s went counter to this trend, the construction of this separate sphere for youth sexuality has been one of the landmark features of modern sexual politics and, like laws preventing dangerous child labor, is usually considered to be a sign of moral progress. In the nineteenth century, children were not objects of special protection and, aside from public education, there was little government regulation or protection of them as a special class.3 There were social and cultural attempts to restrict their sexuality, especially masturbation, but these were social rather than legal restrictions, and were congruent with attitudes toward adult sexuality. Representations of nude youths were considered symbols of innocence rather than symbols of sexuality, although there was often an erotic undertone,4 and boys still swam nude even in New York's East River and in London's Hyde Park Lake. Since then attitudes toward representations of adult and youth bodies have diverged, and by the end of the twentieth century, almost all nude images of youths were considered sexual.
  43.  
  44. There are still occasional “high art” painted or drawn child nudes, although after Balthus and the early Picasso they are rare. Photographs are more forbidden,5 although some naturalist photography is allowed. The eclipse of the child nude reflects the belief that any portrait of a nude child is sexual, is likely to arouse sexual desire, and is harmful to the youths portrayed.6 Although “coming of age” novels and stories remain popular, and highly sensual (although clothed) advertising images of youths are allowed, even relatively bland images of nude youths are categorized as child pornography. The Supreme Court has excluded these images, and even some pictures of clothed youths, from First Amendment protection. It is forbidden to produce them, to sell or distribute them, or to possess them even if they were acquired for free. The images are equated with sexual acts and commerce, rather than speech. Unlike many laws that embody moral codes but are rarely enforced, penalties in this area are harsh.
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  47. THE ADULT OBSCENITY TEST SEPARATES SEXUAL SPEECH FROM POLITICAL SPEECH
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  50.  
  51. There are different tests for political speech and images, for adult sexual speech and images, and for child pornography. Although there are continuing disputes over what tests should be used7 the Supreme Court has generally given political speech a privileged position. Sexual speech is less privileged. The most significant difference is that with nonsexual speech greater latitude is given to speech than to action, while when sexual speech is involved the relationship between speech and action is reversed. Thus, it is permissible to portray a murder while it is impermissible to actually murder someone, and it is permissible to show images of terrorist acts but not to commit them. In the sexual area, the acts privately performed between consenting adults are largely unregulated,8 while the representation of these acts are sometimes classified as indecent or obscene. In an interesting article, David Cole (1994) wrote:
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  53.     Constitutional law permits more extensive regulation of the public representation of sexual behavior than of the behavior itself. As construed by the Supreme Court, the First Amendment not only fails to protect representations of illegal sexual conduct; it permits the state to criminalize the representation of sexual conduct that is itself legal to engage in. Obscenity doctrine, for example, permits the proscription of prurient depictions of 'patently offensive' sexual conduct, whether or not the underlying conduct is (or could be) lawful. (p. 111)
  54.  
  55. Within this broad approach there are different categories. Erotic art is a term used for sexual images admired by the cultural elite. These images are usually in museums, galleries, and private art collections. Hard- and soft-core adult pornographic pictures are also legal, and sometimes of high quality, although they often are not. They are usually photographs, and their appeal is more downscale. Obscenity is illegal pornography; it could be that the sex is too explicit, or it could be that otherwise legal porn is just displayed to the wrong audience or advertised in the wrong way.
  56.  
  57. The Supreme Court has had trouble drawing a line between legal and obscene sexual images. Some judges, like Black and Douglas, argued that the First Amendment protected all speech, including sexual speech and images. At the other end of the scale are judges who claim that the First Amendment was not intended to prohibit restrictions on sexual speech, arguing that the legislature, not the Court, should draw the line between permissible sexual images and illegal ones. Additionally, some theorists dispute the privileged status given to speech.9 Still, the path from the Comstock laws (under which it was forbidden to mention homosexuality, discuss birth control, or do more than hint at sex) to the current protection of most sexually explicit material is dramatic. Pornographic magazines and videos and pay-for-view movies on cable are popular even although they are rarely defended in public, and explorations of sexual themes are central to high art, movies, and television.
  58.  
  59. The Court has held that, for adults, the First Amendment protects most sexual material. There have been different tests. Currently, for a picture to be considered obscene, it has to violate the Miller test (Miller v. California, 1973). Even though that sets a lower bar than the previous Roth (Roth v. United States, 1957) test, it still gives sexual images a fair amount of protection. Both tests affirm that sexual topics are protected by the First Amendment and can be validly explored and used if they have educational or aesthetic value and recognize that differences over sexual issues can have important social and political consequences.
  60.  
  61. Under Roth a work was legally obscene if, to the average person, applying contemporary community standards, the dominant theme of the material, taken in its entirety, appealed to prurient interest (Roth v. United States, 1957, p. 490). This differed from the previous Hicklin10 standard in that it focused on the average person rather than the most vulnerable and because the work had to be taken as a whole. The definition enunciated in Roth was unclear, and nine years later a more precise and broader standard for obscenity was proposed in A Book Named John Cleland's Memoirs of a Woman of Pleasure v. Attorney General (1966). The plurality opinion was that in order for a work to be deemed legally obscene it must be shown that: a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; b) the material is patently offensive because it affronts contemporary community standards; and c) the material is utterly without redeeming social value (p. 418). The Memoirs standard added to the Roth test the requirement that material be utterly without redeeming social value to be legally obscene and, thus, without constitutional protection. This was a difficult test, since it forced the prosecution to prove a negative—that the material was utterly without redeeming social value.
  62.  
  63. Roth was replaced by the Miller standard in 1973 (Miller v. California, 1973). The new test for identifying obscene material was: a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and c) whether the work, taken as a whole, “lacks serious literary, artistic, political, or scientific value (p. 24).11The Court explicitly rejected the Memoirs “utterly without redeeming social value” test (pp. 24-25). Additionally, they argued that a work must be taken as a whole in determining whether it has significant value, where Memoirs would allow an otherwise obscene work to be rescued by even a hint of socially redeeming value. The test is supposed to protect serious academic or journalistic discussions of obscenity, but is obviously murky. Whether material will appeal to the prurient interest of the “average person of the community as a whole” depends partly on the definition of “prurient,” partly on the definition of “community” (Internet community, geographical community of sender, geographical community of receiver, age-group community, male community, feminist community, gay community, etc.) and partly on the definition of “average.” Whether a work describes sexual conduct in a patently offensive way—for example, whether it grossly transgresses community values—is left for a jury to decide, but the jury decisions are subject to review.
  64.  
  65. One of the most important limitations on the state's power to control obscenity involves private possession of obscene material. In Stanley v. Georgia (1969), the Supreme Court reviewed a situation in which the police, searching for evidence of illegal bookmaking, found obscene movies in Stanley's home. They arrested him for violating Georgia's criminal obscenity statute. Stanley argued that he should not be punished simply because he possessed illegal material and watched it privately. The Court unanimously agreed, holding that both the First and Fourteenth Amendments prohibited the criminalization of mere private possession of obscene materials. The state could not control private thoughts. “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds… .” (p. 565).12
  66.  
  67. However, the Court continues to hold that since obscenity is not protected, speech controls on its distribution are allowed. In Paris Adult Theater I v. Slaton (1973), the defendants were enjoined from showing two allegedly obscene films in violation of Georgia obscenity laws. The Court remanded the case so that the specific law could be re-evaluated in light of the Miller test, but stressed that exhibition of obscene material in places of public accommodation was not protected by a constitutional doctrine of privacy (pp. 65-66). It rejected the contention that preventing displays of obscene material amounted to thought control, (p. 67) arguing that although Stanley protected a right to view obscenity in one's own home, this right did not extend to public theaters. “For us to say that our constitution incorporates the proposition that conduct involving consenting adults only is always beyond state regulation, is a step we are unable to take” (pp. 68-69).
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  70. CHILD PORNOGRAPHY IS SEPARATED FROM OTHER SEXUAL SPEECH
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  72.  
  73.  
  74. Child pornography shares the word “pornography” with adult sexual material, but there the legal resemblance ends, and completely different constitutional tests and assumptions are used. While there is conflict about the line between adult pornography and obscenity, it is assumed that there is an erotic or sensual aspect of human life that can be expressed. This assumption is rejected when youths are involved. The test differs from the adult obscenity standards in two important ways: first, private possession of child pornography is heavily penalized and second, the threshold for an image to be considered illegal is much lower than the threshold for adult obscenity. When youths are involved, the Court has accepted legislative findings of harm at face value and only balked when the legislature attempted to outlaw virtual images that did not involve real children. Child pornography is considered subversive of the moral order, and although questioning the dominant public moral code is usually considered political speech, in this case the possibility that the images might have legitimate ideological or political or social content is denied. The perceived prurient interest obliterates all others. An assumed special state interest in the welfare of children, adhered to even by strict constructionists although it is not mentioned in the Constitution, has been used to override First Amendment protections. This interest, which reflects earlier doctrines of a state interest in protecting the welfare of women, has provided the basis for legislation banning ever widening types of images.
  75.  
  76. The changes in constitutional tests are significant. When sexual speech was at issue, the Court changed the logic of the Holmes/Brandies arguments about free political speech. Political speech is protected by the Court precisely because it offends and disputes the beliefs of the majority. With adult sexual speech community values are given a central position, but these values can be overridden by significant educational or social content. But, when the sexual speech and images involved children, the Court in essence denied that it was speech and transformed the images into a commercial product.13 There is no constitutional speech protection for commodities, and stolen goods, or drugs, or objects manufactured by child labor can be forbidden. Distribution can be prohibited and goods already possessed can be confiscated. People who knowingly possess illegal goods can be punished. Because the end result in the child porn cases was politically and ideologically acceptable, the Court's decisions have not received careful scrutiny. Agreement on the depravity of these images is a moral absolute in the United States, and few people have been willing to bear the onus of defending them.
  77.  
  78. The transformation from speech into commodity took place in two stages. New York v. Ferber (1982) blurred the line between speech and activity and created a sharp distinction between adult and child pornography. At issue was a statute that prohibited persons from knowingly promoting a sexual performance by a child under 16 by distributing material which depicted that performance. The statute defined sexual performance as actual or simulated sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse or the lewd exhibition of genitals, and focused on the production of child pornography. It then prohibited distribution as a means of controlling production. The majority opinion upheld the statute, accepting the legislature's argument that child pornography was created for sale and that selling it was part of the process of creating it. The protection of children from sexual abuse and exploitation was a government objective of “surpassing importance” and the “distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled” (New York v. Ferber, 1982, p. 3356). Thus, the forbidden images are categorized as part of the illegal act of production, rather than as speech. Once child pornography is defined primarily as a commercial product, questions of freedom of speech become moot and it is “permissible to consider these materials as without the protection of the First Amendment” (p. 3351).
  79.  
  80. In the decision the transformation of child porn into a commercial product was incomplete, and remnants of a speech test are also used. Despite the rejection of a First Amendment test, the second part of the opinion treated child pornography as a speech product that could be forbidden because it was in itself damaging to the child participants. The “materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation.”14 It was irrelevant to the child if the published product passed the Miller obscenity test and had literary, artistic, political, or scientific value. There is no examination of the claim of harm to the child models and actors. It is simply accepted. It is unusual in a speech case to unquestioningly accept a legislative finding of harm, but in Ferber it is done.
  81.  
  82. It is worthwhile to separate out precisely what was considered harmful. There was no provision for a court trial to see if harm was actually done to the particular youth involved, or if she or he voluntarily or even eagerly participated. Consent was not possible.15 The harm did not come from the acts themselves, since masturbation, nudity, and private sex play with other youths are not themselves considered illegal (although since these acts violate notions of sexually innocent youth, they might be morally frowned upon by the dominant public culture). Both group masturbation and sex play are fairly common, at least among boys and increasingly among girls. It is masturbating in front of a (presumably) adult photographer who has solicited the act and is filming it that creates the harm.16 It is the adult gaze and the adult solicitation of the acts that make these otherwise permissible acts impermissible. The assumption that children cannot consent to have sex play portrayed on film and are harmed by that photography diverges from many studies of adult sex workers. Even so, once the Court defined child porn as a commercial object rather than as speech, there is nothing unusual about the Court's acceptance of legislative findings in this area. The Court normally defers to legislatures on laws limiting actions, and these laws reflect the strong moral and cultural beliefs that youths are sexually innocent, are harmed by sexual acts and thoughts, and are not to be viewed sexually.
  83.  
  84. The New York statute specified explicit sex acts in its definition of child pornography. This definition was obviously in Justice White's mind when he asserted that even if child pornography was considered as speech it would not be protected by First Amendment obscenity rules. The “value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis.” It is unlikely that “visual depictions of children performing sexual acts or lewdly exhibiting their genitals would often constitute an important and necessary part of a literary performance or scientific or educational work.” The opinion uses a variation of the reasonable alternative argument, and White writes that even if there is some value in sexual depictions of children, there are alternatives, since youthful looking older persons could be used (New York v. Ferber, 1982, p. 3357).17
  85.  
  86. The political pressure to control child pornography was strong and obviously influenced Justice Brennan, the most pro free speech member of the Court at that time. He did use a First Amendment test, and reluctantly concurred in the Court's decision only because the evilness of the explicit types of sexual acts with children defined in the statute outweighed any benefits gained by their depiction. He noted that the standard raised by the Court's opinion recognized that the limited classifications of speech that could be suppressed without raising First Amendment concerns have two attributes: “They are of exceedingly 'slight social value,' and the State has a compelling interest in their regulation.” Brennan argued that this balancing test meant that if the material was itself a serious contribution to art, literature, or science it became protected speech (New York v. Ferber, 1982, p. 3365). He thus raised a much higher standard than that used by the Court majority. He would dissent in Osborne v. Ohio (1990), which has become the controlling case in this area.
  87.  
  88. The metamorphosis of child porn from speech to commercial object is completed in Osborne. An Ohio statute considerably widened the explicit sexual performance criteria of the New York law, broadening the definition to include almost all images of nude children. Even more significantly, the statute outlawed the possession or viewing of child pornography, in addition to its sale, as part of the attempt to restrict its production. The rationale was that it was impossible to restrict the production of child pornography if it could be sold. Therefore, it was necessary to restrict sales in order to prevent distribution, and sales could be limited only if possession was outlawed.
  89.  
  90. Justice White again wrote the Court's decision. As in the Ferber decision, White was not willing to endorse the regulation of speech or thought. He claimed to agree with the Court's statement in Georgia v. Stanley that “whatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts.” But in this case, he wrote, the state was not trying to protect the minds of viewers but to protect the child actors by eliminating the market. Child pornography was treated primarily as an article of commerce rather than as speech, and therefore First Amendment protections could be dismissed.
  91.  
  92.     … we find this case distinct from Stanley because the interests underlying child pornography prohibitions far exceed the interests justifying the Georgia law… . In Stanley, Georgia primarily sought to proscribe the private possession of obscenity because it was concerned that obscenity would poison the minds of its viewers… . We responded that '[w]hatever the power of the state to control ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts.' [Stanley v. Georgia, 1969, p. 566]… . The difference here is obvious: [T]he State does not rely on a paternalistic interest in regulating Osborne's mind. Rather Ohio has enacted [the law] in order to protect the victims of child pornography; it hopes to destroy a market for the exploitative use of children. (Osborne v. Ohio, 1990, 108-109)
  93.  
  94. The rationale for the harmful effect on the minor is similar to the Ferber case, and the legislature's finding of harm is unquestioningly accepted. There was no judicial scrutiny of legislative definitions of child pornography or of legislative claims about its consequences.18 White seemed to use a variant of Justice Vinson's grave and probable danger test used in Dennis v. United States (1951),19 claiming that if the danger is serious enough, images lose their character as speech and become part of the forbidden action. (Justice Vinson wrote that the Court had to decide “whether the gravity of the 'evil,' discounted by its improbability, justifies such an invasion of free speech as is necessary to avoid danger.”) The danger doesn't have to be proven by tight standards. Legislative findings are sufficient and the harm alleged does not have to be demonstrated in court. As in Ferber, White conceded that child pornography is speech that merits some protection if it is used for a “bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose” by a person that is qualified and has a “proper interest in the material or performance”(Osborne v. Ohio, 1990, p. 107). This section of the opinion has an elitist tinge that harks back to the idea that only the educated classes had the character to look at pornographic objects like those at Pompeii.20 It could be an interesting exception to the general claim that child pornography is prohibited, but the exception has not been allowed in practice. Neither psychologists who deal with pedophiles, reporters dealing with the issue, nor the writer of this article could use professional interest as a defense for possessing child pornography.21
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  97. THE PARTIAL DECONSTRUCTION OF FERBER AND OSBORNE: JUSTICE KENNEDY'S CRITIQUE
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  99.  
  100.  
  101. The arguments about forbidden images and forbidden actions emerged fully in the battle over virtual child pornography. This was outlawed by Congress in the Child Pornography Prevention Act of 1996 (CPPA). The act banned the possession or distribution of sexually explicit pictures that appeared to depict minors, but were produced without using real children. They were virtual children that were created electronically or played by young-looking actors. The act also banned images that were advertised or described so as to convey the impression that they depicted a minor engaging in sexually explicit conduct (pandering). Congress claimed that new techniques of virtual child pornography could make images that were indistinguishable from real photographs. Since the Court's rationale for limiting the distribution and possession of child pornography rested on the assertion that real children were harmed by its production and sale, the CPPA significantly shifted the justifications for the legislation.
  102.  
  103. The government claimed this shift was necessary because virtual porn made it easier to get around restrictions on genuine child porn. Congress also expressed concern that pedophiles might use virtual or young-looking actor images to encourage youths to engage in sexual activity or that people might “whet their own sexual appetites” with the images. Additionally, child pornography was seen as creating a community of people who flirted with pedophile impulses and who surrounded and supported the real offenders. In the debates about the legislation prior to and after the decision, it is clear that one of the dominant aims was to make possession or distribution of any type of erotic representation of children and youths illegal. They were forbidden images, and a lynchpin of the legal fortress that had been built around the concept of the innocent child. Although he was unwilling to overrule the earlier child pornography decisions, Justice Kennedy revisited them in Ashcroft v. Free Speech Coalition (2002). He noted that “the CPPA seeks to reach beyond obscenity, and it makes no attempt to conform to the Miller standard [of redeeming social value]. The principle question to be resolved … is whether the CPPA is constitutional where it proscribes a significant universe of speech that is neither obscene under Miller nor child pornography under Ferber” (p. 240).
  104.  
  105. Justice Kennedy wrote that under most of the rationales for the CPPA “harm flows from the content of the images, not from the means of their production.” Congress could pass valid laws to protect children from abuse, but “the prospect of crime,… by itself does not justify laws suppressing protected speech” (Ashcroft v. Free Speech Coalition, 2002, p. 242). He argued that sexual expression that is offensive to many, but not obscene, is protected by the First Amendment, noting that the reason given for exempting child pornography from the Miller obscenity test was that children were hurt in its production. “The freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, and pornography produced with real children” (pp. 245-248). Arguing that none of these categories included the images prohibited by the CPPA, Justice Kennedy agreed with Appeals Court Judge Ferguson's (dissenting) argument that in order to uphold the statute, virtual child pornography would need to be regarded as an additional category of unprotected speech. After citing the Miller standard, Kennedy wrote that the CPPA “extends to images that appear to depict a minor engaging in sexually explicit activity” without regard to these obscenity standards. “The materials need not appeal to the prurient interest. Any depiction of sexually explicit activity, no matter how it is presented, is proscribed… .”
  106.  
  107.     The CPPA prohibits speech despite its serious literary, artistic, political and scientific value. The statute proscribes the visual depiction of an idea—that of teenagers engaging in sexual activity—that is a fact of modern society and has been a theme in art and literature throughout the ages. (Ashcroft v. Free Speech Coalition, 2002, p. 246)
  108.  
  109. Kennedy argued that the reason for prohibiting these images had been because of the conditions of their production. In Ferber, “the production of the work, not its content, was the target of the statute. The fact that a work contained serious literary, artistic, or other value did not excuse the harm it caused to its child participants” (Ashcroft v. Free Speech Coalition, 2002, pp. 246-250). Since in this case there were no child participants, the government's case rested on the argument that the images themselves were harmful, and could be used to seduce children, or whet the appetites of pedophiles. Kennedy rejected that argument, noting that “there are many things innocent in themselves … such as cartoons, video games, and candy, that might be used for immoral purposes.” The government was attempting to regulate illegal conduct by a speech ban. There are other things that could be done, like enforcing criminal penalties for unlawful solicitation. “The evil in question depends on the actor's unlawful conduct, conduct defined as criminal apart from any link to the speech in question.”
  110.  
  111.     The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. The government 'cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts.' Stanley v. Georgia … First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought… . . [Disregarding the standard speech tests about inciting immanent lawless action] the Government has shown no more than a remote connection between speech that might encourage thoughts or impulses and any resulting child abuse. Without a significantly stronger, more direct connection, the Government may not prohibit speech on the ground that it may encourage pedophiles to engage in illegal conduct. (Ashcroft v. Free Speech Coalition, 2002, p. 252)
  112.  
  113. Although he explicitly accepted them, Justice Kennedy's arguments seemed to implicitly question the fundamental premises of the decision in Osborne. He argued that there has to be a reasonably direct connection between speech and action if the government was to ban the speech. In the government's claim that the images could lead to child abuse, the “causal link is contingent and indirect. The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts (Ashroft v. Free Speech Coalition, 2002, p. 250). Additionally, in Ferber and Osborne the justification for the prohibition on distribution was to deter the crime of producing it by removing the profit motive, but “[w]hen there is an underlying crime,… the Court has not allowed the suppression of speech in all cases.” For example, a radio commentator could distribute a speech that had been unlawfully intercepted.
  114.  
  115. As discussed below, while Kennedy wrote these statements in the context of defending the Ferber and Osborne standards, it is doubtful if the bans on free distribution and possession of real child pornography could withstand these tests. However, since pornography produced with real children was not at issue in this case and probably because he understood the political storm that would be produced by even the narrowly focused opinion in the Ashcroft case, Kennedy did not reach this question. It was unnecessary to consider the Ferber/Osborne balance “because here, there is no underlying crime at all. Even if the Government's market deterrence theory were persuasive in some contexts, it would not justify this statute.”
  116.  
  117. Even the dissenters in the 6-to-3 Ashcroft decision largely distanced themselves from the censorship of content. Justice O'Connor concurred only in part with Kennedy. She agreed that the ban on youthful-adult pornography was overbroad, but thought the ban on virtual child pornography could be supported. On the question of youthful-looking adults portraying children, O'Connor agreed with Kennedy's decision:
  118.  
  119.     The Government argues that, even if the production of such pornography does not directly harm children, this material aids and abets child abuse… . The Court correctly concludes that the causal connection between pornographic images that “appear” to include minors and actual child abuse is not strong enough to justify withdrawing First Amendment protection for such speech. (Ashcroft v. Free Speech Coalition, 2002, p. 262)
  120.  
  121. In the second part of her opinion, which is joined in by Justices Rhenquist and Scalia, O'Conner reversed these arguments and accepted the congressional claims that electronically manipulated images whetted the appetites of child molesters who also might use them to seduce young children. She argued that cartoon images could not be used for this, but gave no support for that statement.22 The crux of her dissent is the statement that the ban on virtual child pornography can be narrowly read to include “only images that are virtually indistinguishable from actual children” and “that defendants indicted for the production, distribution, or possession of actual-child pornography may evade liability by claiming that the images attributed to them are in fact computer-generated.” O'Conner's attempt to narrow the CPPA ban to material that “conveys the impression” that it contains actual-child pornography would probably not apply to most virtual images. Even three-dimensional modeling tends to look significantly different than images of real people, and the motive behind most of the virtual images does not appear to be an attempt to create images that are indistinguishable from real images. Rather, they try to improve on reality.
  122.  
  123. Justices Rhenquist and Scalia also dissented from the Court opinion, but even they agreed that serious concerns would arise if the government prosecuted someone for possession or distribution of a film with literary or artistic value (Ashcroft v. Free Speech Coalition, 2002, p. 268). They thought the statute could be interpreted so as to avoid this. They agreed with O'Conner's narrowing of the ban on virtual child pornography, but would have extended the process to the ban on youthful looking adult actors engaged in suggestive sexual activity. Scalia and Rhenquist would also uphold the ban on pandering (advertising images as child pornography).23 They concluded that
  124.  
  125.     The aim of ensuring the enforceability of our Nation's child pornography laws is a compelling one. The CPPA is targeted to this aim by extending the definition of child pornography to reach computer generated images that are virtually indistinguishable from real children engaged in sexually explicit conduct. The statute need not be read to do any more than precisely this, which is not offensive to the First Amendment. (Ashcroft v. Free Speech Coalition, 2002, p. 272)
  126.  
  127. Although none of the Court opinions uphold the idea of an impermissible image, and insist only on tying the law closely to the objective of protecting the child actors in child porn photographs and films, the subsequent reaction of politicians and of many law review articles demonstrates that the political intent was precisely to forbid the images.
  128.  
  129. ===========================================================
  130. ANALYSIS: DIFFERENCES BETWEEN PORNOGRAPHY, OBSCENITY AND CHILD PORNOGRAPHY
  131. ===========================================================
  132.  
  133.  
  134. Ashcroft v. Free Speech Coalition changed the judicial debate on child pornography, but it was limited in scope and did not explicitly question the underlying logic of the Osborne decision. Although it generated an angry reaction, since it affected only a small portion of the images it has had little effect on the political and cultural rhetoric. Discussions of child pornography are still primarily limited to ritualistic condemnations. This judgment is one of the few that have almost universal assent, evoking agreement beyond culture war battles about adult pornography and sexuality. It is invoked by moral conservatives in attacks on what they view as a pornographic and immoral culture, and embraced by moral liberals who ritualistically exclude child pornography from their advocacy of greater political freedom in the sexual area and use this exclusion as proof of their own virtue. Because of that rhetorical position, the child porn legislation has remained largely unanalyzed. The underlying assumptions of harm to the children involved swamp all distinctions, and even academic discussions of the issue have been largely suppressed.
  135.  
  136. Viewed from the perspective of traditional First Amendment jurisprudence, the child pornography laws are astonishing, both in their scope and in their ban on the private possession and noncommercial distribution of the forbidden images. Even at the height of the communist scare, the private possession of Marxist books was permissible, although there were limits on distribution, action, and advocacy. In the Stanley case, the Court balked at outlawing private possession and viewing of obscene images, but that decision did not include child pornography. Private possession of those images remains forbidden, even if they were acquired for free, since the possession of pictures is linked to harm done in the process of their creation, and the viewing of the pictures is equated with the act of pedophilia.
  137.  
  138. The definition of child pornography, both in the statutes and in the Court's decisions, remains vague. The Ohio statute at question in Osborne outlawed all depictions of nude children, but the Court narrowed it so that parents who had nude pictures of their baby wouldn't be found guilty of possessing child pornography. It argued that the mindset of the viewer needed to be considered and that it was permissible to view pictures of nude minors “when that conduct is morally innocent” and does not involve a prurient purpose (Osborne v. Ohio, 1990, p. 112). So construed, the statute's proscription did not outlaw all depictions of nude minors, but only those which evoked the sexual interest of the viewer. Unfortunately this brought the Court back to the thought control issue that it explicitly rejected, since it was contending that it was impermissible to view children as sexual objects. By the Court's standard, a lascivious viewer of an image, whether a Greek vase or a children's clothes catalog, would transform it into forbidden child pornography. The argument that truth is relative to the perspective of the beholder is good postmodernist theory but, since law requires uniformity and predictability, it makes bad law and allows authorities to define even ostensibly legal material as child pornography if they think viewers or distributors have prurient interests.
  139.  
  140. In the legislation and the politics of this area there is no acknowledgment that a contemporary nude photograph of a youth can evoke memories, be educational, contain a political message about the image of youth, or be beautiful or funny. The prurient card obliterates all others. The inclination is to deny that there can be any artistic or social value in these images. An illustrative discussion took place in the oral arguments during the Ashcroft trial. The coalition's lawyer, H. Louis Sirkin, rose to speak of the “radical, tragic consequences” of the CPPA on First Amendment jurisprudence. Scalia challenged him sarcastically to name which “great works of Western art” would be outlawed. Sirkin mentioned Traffic, Lolita, and early films of Brooke Shields, which he conceded “maybe some people don't enjoy.” Scalia said, “This is not, you know, the 'Mona Lisa' or 'Venus de Milo' or anything that has lasted more than 30 years.” When Justice John Paul Stevens mentioned that Shakespeare's Romeo and Juliet included a scene that could come under the law's purview, Scalia turned to Stevens and said, “Gee, you've seen a different version of that play than I have.” No one mentioned the great works of visual art, including that of the Greeks, Donatello's David, Caravaggio's boy nudes, and those of other Renaissance, Baroque, and Romantic painters, or the works of Balthus and some of Picasso's art. Also ignored were significant photographers, including Edward Weston, Robert Mapplethorpe, and Sally Mann.
  141.  
  142. The logic of the exemption of child pornography from obscenity law tests in both Ferber and Osborne rested on the assumption that there was harm to the child actors and models in the creation of child pornography and that the sale and (in Osborne) possession of child pornography supported its creation. There was a series of links.
  143.  
  144.     * The first step (in Ferber) is the argument that the young models and actors are harmed in the production of child pornography. Both legislatures and courts accept this as self evident.
  145.     * The second step (in Ferber) is the claim that for a commercial product there is a strong link between production and sale. If no sales are allowed, then production will dry up.
  146.     * The most significant leap is in Osborne. What if the goods are not sold, but are distributed for free or are pirated and then distributed? Are they still commodities rather than speech? Does that type of distribution contribute to the production of the original image?
  147.     * The last step is the acceptance of the argument (again in Osborne) that it is illegal to possess the images, even if there is no evidence that the possessor paid for them, and simply views them in private. This allows prosecution for images anonymously downloaded for free from various newsgroups or the internet.
  148.  
  149. ===========================================================
  150. The Claim that Youths are Hurt in the Production of Child Pornography
  151. ===========================================================
  152.  
  153. A central function of the government is protecting groups from harm and there are vast amounts of legislation protecting various groups that have been seen as vulnerable. In many of these areas, there have been fierce policy debates. Since powerful groups are often limited when vulnerable groups are protected, diverse arguments about the causes of the perceived harms are heard.
  154.  
  155. This type of argument is usually not present when cost-free or low-cost methods of protecting children are involved. As was noted above, the consensus that they need to be protected from harm unites liberals, conservatives, ethnic minorities, gays, straights, and various gender groups. Since there is little argument, and claims to protect children from sexual predators are sure-fire political winners, demagoguery is common. Claims of harm are often sweeping and absolute, and discussions of the issue rarely get beyond this assertion. Legislation attempting to control behavior in peripheral areas increasingly distant from the nucleus of asserted harm (sale, sale of material that was legal at the time it was made, distribution of old material, free distribution, and private possession) is largely unexamined and relatively easy to pass. The concepts of “immorality” and “psychological harm” are often interchanged and broad claims of psychological harm are made for behavior that people think is immoral (e.g., many who think that teen sex, masturbation, or smoking marijuana are immoral often base their public arguments primarily on claims that these behaviors are harmful to alleged victims).
  156.  
  157. Since the argument that children are seriously harmed is the central assumption underlying the legal construction of a separate sphere for child pornography, it is imperative to examine the issue, at least briefly. Although speech carries special protection under the Constitution, speech does not cleanse an underlying illegal act. A person cannot actually rob a bank and then claim that, because they are filming the robbery, the act should be protected by the First Amendment. If laws are violated in the creation of a pornographic image—if the adults or children portrayed are raped, physically hurt, or psychologically harmed—the fact that an image is being created would not cleanse the lawbreaking. In fact, the images would be a record of the harm, and would aid in the prosecution of the lawbreaker. Pornography and obscenity laws are not needed to punish people who should be charged with assault or rape since it is the act, not the image of the act, that is illegal. If a rape or a murder scene is simply simulated on a stage or on film, the images are not forbidden.
  158.  
  159. This situation is reversed in child pornography cases. Most of the actual acts depicted by the young models in child pornography are legal. Although some of the older pictures have sullen, battered looking children who look like they have been drugged or coerced, that is rarely true of more current photos. Impressionistically,24 the largest number of pictures on pornographic sites involves clothed photographs of pretty or good-looking children. Often they are in bathing suits. These are tainted simply because of their presence on pornographic sites, but, although they often have an erotic tinge, the pictures would not be considered pornographic in other settings. The next largest number consists of nudes of diverse quality and degrees of eroticism. Some pictures of boys show erections. Videos are a media that demand movement and they often show sex play and horseplay among the youths (especially boys), but no real sex (except masturbation or attempted masturbation). Masturbation, usually alone but sometimes in groups, and oral sex are also occasionally shown in still images. Generally both boys and girls look cheerful and healthy, although obviously this could be an act. Still the smiles and playfulness are often in hundreds of photographs of the same models, and giggles are ubiquitous in the films. The attempt is to portray an innocent and joyful sexuality, whether or not that is what is experienced by the models and actors. The pictures are far less tawdry and hard core than adult porn and are more playful. Domination is not an important theme and very few images (probably less than 1%) involve adults.25 Except for the rare adult involvement, none of these acts are illegal or clearly harmful in themselves, although the photographing of them is illegal.
  160.  
  161. The Court's decisions accept the premises of the legislatures and assume that the youths suffer great harm if they are involved in making child pornography. Using the concept of legal consent, legislatures also argue that children and youths are incapable of giving consent in this area, just as they are incapable of consenting to commercial agreements. Sex without consent is rape, and therefore all sexual activity that involves children and youths becomes forced sex, or rape. These claims reflect the current sexual ideology. Although legislative conclusions on matters of fact are normally binding, they still can be wrong or be based on little evidence, or be the result of prejudice or a moral panic. Although the Court is usually reluctant to question a strong political consensus, invalid legislative findings of fact should be questionable if they provide the justification for a wide range of laws limiting speech and the free distribution and possession of unpopular images. Since it is both clandestine and fairly small, there have been very few empirical studies of the child porn world.26 However, as discussed below, there have been studies of adult pornography, and of youths involved in pedophile relationships with adults, and the findings of these studies provide important indirect information. Both bring into question legislative assumptions of universal harm to the young people involved. Additionally, although it is routinely denied, there seem to be statistical and anecdotal grounds for arguing that consent is possible—and measurable—and that consensual sex is sometimes experienced as a positive experience and is not normally experienced as harmful.
  162.  
  163. The world of adult pornography is only indirectly relevant, since youths are not involved, but there is a large literature on the subject. There is often moral condemnation of those involved in various aspects of that business, but it is notable that in the adult porn world there is little evidence of harm to most participants27 (although there are arguments that they have a type of false consciousness and do not understand how they are being harmed), and the jobs are eagerly sought after. Many claim that they like the work, the people, and the money. Although claims of harm to all porn actors and actresses are somewhat out of fashion now, many of the arguments about harm to the participants that are made about child pornography used to be made about the adult pornography world. The general consensus about harm in this area, like the earlier consensus about the great harm caused by masturbation, should give rise to suspicion about unsupported assertions in the sexual and pornographic areas.
  164.  
  165. More directly relevant, since they involve children, are the numerous studies of youths who have been involved in sexual relationships with adults, since it seems legitimate to assume that involvement in an actual sexual relationship would have consequences at least as serious as being a model or actor in child pornography. If there is a difference, those involved in adult-child relationships would presumably suffer worse consequences than those simply appearing in photographs and videos. Numerous academic studies have provided evidence that (for boys, especially) a significant proportion of the relationships are not harmful and are often experienced as beneficial. The most thorough statistical study (a meta-analysis of thesis and dissertation research on the subject by Bruce Rind et al.) adds strong support to this argument (Rind, Tromovitch, & Bauserman, 1998).28 They concede that the activity might be considered immoral or illegal, but “classifying a behavior as abuse simply because it is generally viewed as immoral or defined as illegal is problematic, because such a classification may obscure the true nature of the behavior and its actual causes and effects.”
  166.  
  167.     [A]buse implies that harm is likely to result from a behavior. The evidence for SA [sexually abused] male college students, using the scientific conception of abuse, highlights the questionable validity of the construct CSA [child sexual abuse]… . For these male college students, 37% viewed their CSA as positive at the time they occurred; 42% viewed their experiences as positive when reflecting back on them; and in the two studies that inquired about positive self-perceived effects, 24% to 37% viewed their CSA experiences as having a positive influence on their current sex lives. Importantly, SA men across all levels of consent (i.e., both willing and unwanted experiences) did not differ from controls in current psychological adjustment, although SA men with unwanted experiences only did, implying that willingness was associated with no impairment in psychological adjustment… . Their experiences were not associated with harm, and there appears to be no scientific reason to expect such an association… . On the other hand, a minority of SA men did report retrospectively recalled negative reactions, negative current reflections, and negative self-perceived effects; moreover, unwanted CSA was associated with adjustment problems. (Rind et al., 1998, p. 45)29
  168.  
  169. Rind et al.'s analysis shows a significant gender difference, with most women feeling harmed by the childhood relationship while most men who were involved in a consensual relationship do not feel that way. The study is controversial, and its statistical methodology was attacked in Congress (although the methodology was subsequently upheld by a panel of leading statisticians), but it has not been refuted. It raises serious doubts about the popular and political arguments of harm that are constantly repeated, but rarely examined.
  170.  
  171. The last paragraph of the above block quotation hints at an interesting finding of the meta-analysis: consent makes a significant difference.30 (“Consensual” in this context means that the youths were not forced to engage in the behavior, but did so willingly or even eagerly. In that way a consensual relationship is different from rape. Youths cannot sign contracts that will bind them in the future, which would be the notion of full legal consent. But, as any parent can testify, they can certainly dissent from things they do not want to do.)31
  172.  
  173. Whatever the legal definitions, the notion of consensual versus forced sexual relationships has statistical significance. For many (especially boys) consensual (noncoercive) relationships seem to be positive, based on both scientific studies and anecdotal evidence.32 In an analysis of the literature done by Bauserman and Rind (1997), consent was one of the most significant variables in evaluating whether the experience had positive or negative effects.
  174.  
  175.     The presence or absence of force, and subjects' evaluations of their willingness or consent in the sexual contact, have been examined in numerous nonclinical studies. These studies are consistent: When physical force or threats of harm are present, responses of boys to the sexual contact are typically negative… .
  176.  
  177. The issue of force leads to the larger issue of assent or consent. In the studies reviewed, a number of subjects defined themselves as willing or consenting participants in their sexual contacts with adults. This self-defined consent seems to refer to a willingness to participate, and does not necessarily indicate the level of sexual knowledge or awareness of possible consequences needed to meet the more stringent criteria of informed consent. Self-defined consent, like absence of force, is in all studies associated with positive outcomes or evaluations.
  178.  
  179.     Findings from the clinical literature are consistent with the nonclinical literature on the impact of force. [They] reported that the presence of force or threats is typically associated with increased symptoms. It is noteworthy that in many clinical samples, which might be expected to include the most disturbed individuals, force continues to emerge as a major predictor of outcome. [Bauserman's references omitted] (Bauserman & Rind, 1997, pp 122-123)
  180.  
  181. People who were familiar with the child pornography world have told me that in Eastern Europe, where most of the current male child pornography is produced, many of the boys modeling and acting in child pornography are street hustlers, who survive largely by selling sex and who view it as an easy gig. There are many reasons for them to model, including money, showing off, coercion, affection for the photographer, a road to modeling career, and daredevil impulses to violate social norms. They do not think that being photographed nude is a big deal. The girl models in Japan are often treated like stars and have Web sites devoted to them. For long periods, photographs that we would currently call child pornography have been legal, and there is no evidence that the models were hurt. Artist models at various times have shown little evidence of harm, and the subjects of major photographers like Sturges, Mann, and Hamilton (who all have been accused, but exonerated, of making child pornography) have said that their experiences were positive ones.33
  182.  
  183. Based on the available evidence it is difficult to support the prevailing assumptions about universal harm to the young models and actors. Based on the Rind et al. studies, boys especially seem unlikely to suffer great harm. Probably some are hurt, some benefit, and most are not strongly affected. Still, legislative findings of fact carry a great weight and Congress has the power to outlaw acts (like the making of child pornography) that it considers harmful. Legislatures do not need to prove that all smokers will die of lung cancer before legislating against tobacco, or to believe that asbestos or lead is fatal to everyone before they limit their use.34 Still, a discussion of the evidence about the likely amount of harm suffered by youths involved in the production of child pornography might lead to more nuanced types of regulation that do not reflect the current escalating panic.
  184.  
  185. It is worth noting that none of arguments about harm to today's children would apply to old child porn. In fact the existence of old pornography, or pornography that was legal when it was made but that is currently illegal, probably serves to keep new porn from being made. If harm was to be done, it has already been done and the children would now be grown up or dead.
  186.  
  187. ===========================================================
  188. Initial Sale of Images
  189. ===========================================================
  190.  
  191.  
  192. If children are hurt, and the images are produced for sale, there is obviously a direct link. The fact that the crime is recorded in an image does not exonerate the crime, and the link would be proximate and direct. The only problem here would come in resale of pirated images, which would not directly benefit the producer. At that point the tie becomes much looser.
  193.  
  194. ===========================================================
  195. Free Distribution of Images
  196. ===========================================================
  197.  
  198. In the child porn world images are heavily pirated, even if they were initially sold or were part of subscription boards. Often they are distributed for free in various newsgroups or are shared through file sharing programs. Downloaders are anonymous, and uploaders use a variety of false names. No money, prestige, or position is gained by the posters, and the clandestine distributor is both in great danger and can get glory only under a pseudonym. Under these conditions it seems that the images should now be classified as shared speech, with an implicit aesthetic or ideological content, rather than as commodities. At a minimum they should be judged by the obscenity criteria. The original pornographer does not benefit from the distribution on the newsgroups since free circulation would undercut further attempts at sale. The connection of these images with the act of production is tenuous and indirect and it is difficult to argue that free anonymous circulation significantly encourages production. The free images are even further removed from the production process by the fact that most of them continuously recirculate, as people who download free images at one time repost them at another, and they are thus likely to have been downloaded for free. In copyright law, and in the music business, free circulation of pirated goods is assumed to harm production not encourage it.
  199.  
  200. ===========================================================
  201. Private Ownership and Viewing
  202. ===========================================================
  203.  
  204.  
  205. In the Stanley (1969) case, it was argued that private ownership and protection of obscene material was permitted and that the state's power could not reach private possession and viewing. As cited above, the Court held that simple possession of obscene materials could not be outlawed by the state, because that would involve thought control: “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds… ” (Stanley v. Georgia, 1969, p. 557). However, when child pornography is involved, this argument has not been adopted by the Court. Although Justice White's opinion in Osborne claimed that it was not overruling Stanley, it did endorse bans on the ownership of child pornography, arguing that states could claim that the creation, distribution, and possession of child pornography would contribute to the harm of the models and actors involved. It is easy to understand how production and sale could be held to contribute to the harm of the children (if they are harmed) but the logic of banning private ownership on those grounds is quite a stretch. It certainly violates Justice Kennedy's argument in the Ashcroft case, where he objected to government bans on speech when the causal link was “contingent and indirect.” As cited previously, he argued that government has to show shown more than a remote connection between speech and illegal action, arguing that there needs to be “significantly stronger, more direct connection” before speech could be forbidden.
  206.  
  207. Privately owned and viewed images are far removed from the act of production, and if direct effects cannot be demonstrated, then any harm that comes from them must be a result of their content (an argument that involves thought control and is specifically rejected by the Court) or from a claim that the child in the image is harmed by having his or her image viewed sexually. The basis for this assertion lies in the assumption that the viewer is probably masturbating while looking at the image, an imagined behavior that violates strong cultural prescriptions about the sexual innocence of the child. As discussed previously, the claim may not be true since an image can be viewed in different ways. More important, it assigns to the pornographic picture a totemic importance that embodies the spirit of the child, so that the imagined sexual actions and thoughts of the viewer are seen as reflecting back on the original model. However, if the downloader does not know who the actual model is, and the model knows neither the downloader nor that the picture is being looked at, it is difficult to establish a connection. A myriad of innocent images are used as sex objects by some, but they are not forbidden for that reason. Some cultures assign a totemic importance to images and think they capture a subject's soul,35 but in American culture we usually do not do this.
  208.  
  209. Related to the totemic argument, but distinct from it, is a claim that the young model's privacy is violated by an image that will exist forever. It is an important argument, since it shifts the focus away from the producer of the pornography to uploaders and downloaders, and it has some viability. However, there are also significant weaknesses. It assumes, without any proof and without any subsequent lawsuits, that the models and actors will regret the photographs and be ashamed of them. That presumes they would share a negative evaluation of the photographs, which might be true in some cases. But adults involved in the lucrative pornography industry are not typically ashamed of what they do, although some argue that they should be, and it seems probable that many of the people who had been young models would view their past positively, as something rather glorious or cool. Some child porn “stars” are the models for literally hundreds of photos, taken over a long period of time, and there is no evidence of regret. As discussed above, there has been little research in this area and without empirical evidence all claims are assumptions and projections. The best guess is that reactions will vary widely.
  210.  
  211. Additionally, the real identities of the models/actors are unknown to most downloaders. When they were older the models would probably not be recognizable from the images on the pornographic newsgroups, since looks change. Even in the rare case that they were recognized, it would presumably be by a select and admiring group of viewers. Child pornography is sought by those who value the images, and they would not have the implicitly assumed negative judgment of the model. Moreover they would not normally seek out the original model, since what is admired is an unchanging image, not the actual person since she or he will invariably change and age. People tend to be fairly specific and narrow about the ages of the youths in the images they like. Issues might arise if the model becomes famous, but since blackmail is illegal that does not necessitate special laws against child pornography. Also, there is no evidence that this type of blackmail has ever occurred, much less that it is common.
  212.  
  213. ===========================================================
  214. Harm of Porn
  215. ===========================================================
  216.  
  217.  
  218. Although the Court has consistently rejected the argument that child pornography should be banned because bad thoughts lead to bad actions, it is a commonly made and is worth considering briefly. It is a flawed speech argument that is based on little evidence other than expressions of moral repulsion and it is probably empirically invalid.36 It is similar to arguments against erotic images and pornography (and the forceful expression of unpopular ideas) in general. Child pornography is simply the most politically viable area in which to make the claim. The assertion rests on a simple correlation: Those who commit rape and molest children are likely to possess pornography. But a correlation does not establish cause,37 and it is likely that certain types of interest in sex lead both to rape/molestation and the possession of pornography.38 The bulk of people who view pornography do not commit sex crimes, as is evident when one considers that pornography sites are among the most popular on the internet and are viewed by millions of non-rapists. In fact, there is much evidence that pornography is cathartic and societies that are permissive toward pornography often have a low number of sex crimes.
  219.  
  220. It seems most likely that the real objection to viewing child pornography is that the images are offensive to public morality. Since pornography deals with fantasy, not action, prohibitions of it raise questions about the extent to which it is legitimate to control socially illegitimate fantasies. The struggle is around children and the family, and the endeavor is to protect the dominant understanding of them. There is endless repetition of the standard view. Empirical arguments that children and youths are sexually active, and that the innocent child model is false, provide no defense.39 Noncommercial distribution is equated with commerce, viewers of child pornography are often equated with pedophiles as the distinction between representation and action is obliterated, and questionable legislative assertions of fact are accepted at face value. Many people feel it is repugnant to look at a picture with lustful enjoyment or to view people as erotic objects. The erotic perspective is not ideologically sanctioned in the same way as envisioning people as consumers or producers, although erotic radicalism has been an important component of many dissident political movements.40 As a way of viewing adults, it has become more legitimate since the early twentieth century, but youths have served as icons of purity.
  221.  
  222. ===========================================================
  223. CONCLUSION
  224. ===========================================================
  225.  
  226.  
  227. This article has argued that child pornography should be brought back under the general pornography/obscenity criteria, and that a wrong turn was taken when it was separated out in Ferber; the mistake was significantly amplified in Osborne. The separation of sexual speech from other types of speech test can itself be questioned, but at at a minimum the obscenity criteria recognizes that there is frequently a political or social content to sexual speech and images, and that sexual speech is different from sexual behavior. Appeals to prurient interests can go beyond the narrowly sexual, and many images can be simultaneously political, prurient, and aesthetic. In sexual politics, pornography serves many of the functions of political speech. This is especially true for sexual minorities41 where individuals have frequently felt themselves to be isolated and cursed. These groups are organized around their sexual preferences rather than racial, class, or ethnic concerns, and pornography serves as an important symbolic community identifier. It brings private sexual practices into the open, allowing individuals to identify with them. This type of process is what feminists referred to when they argued that the personal was the political. Without a community there can be no political voice, which is why there is often an attempt by majorities to suppress minority self-identification, whether it is based on class or on racial, religious, ethnic, or sexual factors.
  228.  
  229. The recognition of this political function probably lies behind much of the drive to deny First Amendment protection to sexual speech. It is the fear of the legitimization of unpopular ideas (Mirkin, 1999). In many ways pornography is akin to radical political tracts. Those also frequently met social disapproval and political attempts at censorship. Since there was no overt political conflict about sexual issues, sexual images were not considered political at the time The Constitution and the Fourteenth Amendment were adopted. Most of the current sexual categories were defined at the end of the nineteenth century, and since then some of the most important political battles have swirled around these categories. In light of recent political struggles over sexual issues and ongoing academic, gay, and feminist arguments that sex and gender are political constructs, it is clear that sexual arguments and identifiers have an important political component.42 Foucault and many postmodern thinkers have brought this issue to the center of the political agenda and the sexual political conflicts are more intense those in other areas. Of course, permitting sexual speech is not the same thing as permitting the described or advocated sexual behavior, and this article is about speech, not action. Legislatures can control many types of behavior and there are frequent conflicts between individual behavior and privacy rights.
  230.  
  231. The ostensible reason for denying even the minimum right to possess non-commercially distributed child pornography is that the production of the pornography harms the children portrayed, but this article has attempted to demonstrate that the argument does not hold up to analysis. In addition to the lack of evidence that the models are hurt, there is not a proximate connection between the production of images and anonymous possession of pictures downloaded for free from the Internet. Neither the private viewing nor the noncommercial distribution of child pornography encourages its commercial production, just as pirated images, texts, software, and music do not encourage their commercial production. At best the claim for the link is a convenience argument, since it might be difficult to establish that privately possessed child pornography was acquired noncommercially, but this type of argument has never been accepted by the Court in the speech area and is specifically rejected in Ashcroft (2002).
  232.  
  233. Current policies equate representations of youth sexuality with sexual abuse, reaffirm ideologically constructed concepts of innocence that are similar to those characteristics formerly ascribed to women, and probably reflect ambivalent attitudes about adult sexual behavior. As women once served as a moral standard and a haven in a heartless world, with all the controls that came with that role, so children are used today. The protection of children is accepted by our society as a particularly worthy goal, and that claim makes us feel good even although we do not always live up to that commitment. In any case the argument would normally not extend to the way in which children and youths are imagined or imaged.
  234.  
  235. Speech and images may be related to behavior, but a basic principle of our law is that speech and behavior are not the same. Sexual pariahs are especially enticing, and deviant groups like them serve an important function. They leave non-deviants with a feeling of moral rectitude and help to unite them by reinforcing their feelings of superiority and virtue. Additionally, when minority groups identify themselves with the moral stance of the majority, it helps make them legitimate. Thus, feminists, gays, lesbians, religious conservatives, politicians, and others can all prove their moral worth by attacking child pornography. The fear of child pornography is also used to justify attempts to bring the new information technologies under the control of regulators.43 Just as being against a lynchee unites the lynchers, allowing them to feel they are protectors of the moral order, so this issue unites a fragmented American community. As Sartre noted in his discussion of the anti-Semite, “by valiantly struggling against the Other as Symbolic Offender, the Just Man validates himself as good.”44
  236.  
  237. ===========================================================
  238. Notes
  239. ===========================================================
  240.  
  241.  
  242. 1. Nadine Strossen also comments extensively on sexual issues as political issues. She questions the Court's distinction between sexual and political speech and argues that they both deserve the same protection because sexual speech is political speech (Strossen, 1995, p. 56. p. 176). Catharine MacKinnon (1993) agrees that sexual speech is political speech, since it sets gender rules and hierarchies, although she would like to limit it.
  243.  
  244.  
  245. 2. Scholars distinguish between children, adolescents and youths, but popular and political arguments blur the terms. Thus “child pornography” is used to refer to pictures of young people up to 16 or 17 years old, and child protection laws extend to 16 or 18 year olds. In the sexual area our language tends to make kids younger, while when bad behavior is involved the language tends to make them older.
  246.  
  247.  
  248. 3. Rousseau is usually credited with developing the idea that children were special and innocent. In the nineteenth century women and children were jointly considered sexual innocents, but towards the end of the century women began to break out of that social construction while children remained in it. See Bram Dijkstra (1986) for an excellent discussion of this relationship between women and children (pp. 187-200). Before this time most children were not protected from sex. Sex was visible, since houses were small and most people lived in agrarian societies where animal sex was not hidden. Though puberty came later than it does today, the age of consent and marriage was lower. At the end of the nineteenth century societies to protect children started. The New York Society for the prevention of Cruelty to Children was established in 1874, and by 1910 there were several hundred. By the first decade of the twentieth century a combination of progressives, feminists and social reformers had succeeded in defining sexual violation of children as a problem, though concern has varied (Talbot, 1999).
  249.  
  250.  
  251. 4. The eroticism and the innocence were closely connected. (Higonnet, 1998; Ovenden & Mellville, 1972). James Kincaid also discusses this in his 1998 classic. He argues “Our culture has enthusiastically sexualized the child while denying just as enthusiastically that it was doing any such thing. We have become so engaged with tales of childhood eroticism (molestation, incest, abduction, pornography) that we have come to take for granted the irrepressible allure of children….We see children as…sweet, innocent, vacant, smooth-skinned, spontaneous and mischievous. We construct the desirable as, among other things, sweet, innocent, vacant, smooth-skinned, spontaneous and mischievous. There is more to how we see the child, and more to how we construct what is sexually desirable - but not much more. To the extent that we learn to see 'the child' and 'the erotic' as coincident, we are in trouble. So are the children” (pp. 13-14).
  252.  
  253.  
  254. 5. Nude photography of children largely ended with Sally Mann, Jock Sturges, Will McBride and David Hamilton, photographers who started before the Reagan era. Additionally, Sally Mann was partially protected by her status as a woman and mother, though her motherhood was also used against her as it was claimed that she was abusing her children. All these photographers had trouble with censorship and FBI or police raids. There have been occasional CD covers, most famously Scorpions' Virgin Killer, and two books (Formiguera, 2000; Cordelle, 2006) that that had some child nudes mixed in with other photographs that focused on growing up and changing. It is unlikely that a young photographer currently could do this type of photography. A superb study of childhood photography is Ann Higonnet's (1998) Pictures of Innocence: The History and Crisis of Ideal Childhood.
  255.  
  256.  
  257. 6. Since images that include children's genitals are rare, it is probably true that the eye travels first to those areas. It is interesting that the undeveloped breast of a girl is often more forbidden than the breast of an adult woman, and young girls are rarely photographed topless.
  258.  
  259.  
  260. 7. Schenck v. United States (1919) was the beginning of the Court's protection of speech, though that case actually allowed censorship of a draft opponent's speech. Holmes' famous arguments on free speech were generally enunciated in dissent. (See Abrams v. United States, 1919; Gitlow v. New York, 1925). In the latter case Holmes argues that all views, even those we detest, need to be given an opportunity to succeed in the marketplace. Since Holmes' time the Court has usually given political speech some special protection, though constitutional tests have varied.
  261.  
  262.  
  263. 8. In Lawrence v. Texas (2003) the Court reversed Bowers v. Hardwick (1986) and held that private sexual acts are protected by privacy considerations. The Court used Mill's logic (Mill, 1993).
  264.  
  265.  
  266. 9. Christian and moral conservatives, argue that American political culture has a moral core, and think that this set of values needs to be taught to the next generation. In general they favor limits on debates about these moral issues, since they hold that the other side is simply wrong and that their moral relativism is dangerous. These issues are well examined by James Hunter (1991). Anti-porn feminists led by Catharine Mackinnon (1993) makes a different argument, since they appeal to neither tradition nor the Bible to support their argument that pornography is dangerous political speech, and a type of action that the patriarchy uses to limit the freedom of women. MacKinnon (1993) claims that speech should not be raised above the other civil rights that are abridged by pornography. Both groups strongly oppose child pornography and support their arguments by claiming that tolerance of adult pornography will lead to increasing amounts of child pornography.
  267.  
  268. The classic argument for free speech is John Stuart Mill's (1993). He argued that the discussion of issues - including the expression of incorrect points of view, strengthens the right side since issues move from being assumed to being known. The argument assumes the ability of a strong political culture to sort out right from wrong and to profit from a healthy debate. Nadine Strossen (1995) has laid out the civil liberties arguments well. (See also Marjorie Heins, 2001, for an excellent discussion of these issues.)
  269.  
  270.  
  271. 10. Well into the twentieth century, the Supreme Court applied the obscenity standard of a nineteenth century English case (Regina v. Hicklin, 1868). The standard used in Regina v. Hicklin was “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences” (p. 361).
  272.  
  273.  
  274. 11. The degree of allowable censorship varies with the source of material. Tighter control can be exercised over stores than over cable, and controls over the Internet are looser. The debate centers on whether the community is the local and geographic, or electronic and virtual.
  275.  
  276.  
  277. 12. The Court said the Constitution protected the right to receive information, regardless of its social value. An article on the First Amendment in FindLaw noted that though the case has been given a restrictive reading, the Court in Stanley v Georgia (1969) found that “First, there is no governmental interest in protecting an individual's mind from obscenity. Second, the absence of ideological content…was irrelevant. Third, there is no empirical evidence to support a contention that exposure to obscene materials may incite a person to antisocial conduct; even if there were such evidence, enforcement of laws proscribing the offensive conduct is the answer. Fourth, punishment of mere possession is not necessary to punishment of distribution. Fifth, there was little danger that private possession would give rise to the objections underlying a proscription upon public dissemination, exposure to children and unwilling adults” (FindLaw.com). In an earlier case the Court had found that the state could prohibit homosexual acts in the privacy of one's home (Bowers v. Hardwick, 1986) but that case was overruled in Lawrence v. Texas (2003).
  278.  
  279.  
  280. 13. The net result is similar to Catharine MacKinnon's argument about adult pornography, in which she argues it is not speech but part of an act of rape that denies rights to women. In this theory, users of pornography are themselves abusers.
  281.  
  282.  
  283. 14. In New York v. Ferber (1982) the Court's argument rests on unsupported psychological speculation. A footnote supporting the argument quotes “one authority” who argues that the “pornography may haunt him in future years, long after the original misdeed took place. A child who has posed for a camera must go through life knowing that the recording is circulating within the mass distribution system for child pornography” (p. 3355). Other claims focus on the harm to the child caused by the need for keeping the act secret, claiming that the “victim's knowledge of publication of the visual material increases the emotional and psychic harm suffered by the child” (p. 3356). The assumption of harm to the children involved in the production of child porn is central, and is examined in section VI of this article.
  284.  
  285.  
  286. 15. The argument is that children cannot give consent in this area. This issue of consent will be examined in another section of this article.
  287.  
  288.  
  289. 16. The assumption underlying most of the arguments is that an adult photographer and adult viewers are involved, but the images would be illegal even if they were taken by the youths themselves or by a young friend. Similarly, there is a fear that other youths will see the pictures.
  290.  
  291.  
  292. 17. These arguments are revisited later in Ashcroft v. Free Speech Coalition (2002). That case came about because in 1996 Congress outlawed the use of adults acting as youths, and banned morphed images.
  293.  
  294.  
  295. 18. The empirical basis of the Legislative findings of fact is rather shaky, as is discussed below in the section of this article titled “Analysis: Differences between pornography, obscenity and child pornography,” and the findings of fact probably reflect the dominant ideology of the innocent child more than social science. At a minimum, the evidence is conflicting, and it is clear that not all children are hurt.
  296.  
  297.  
  298. 19. The test is often called the “clear and probable danger test” (Dennis v. United States, 1951, p. 494). Developed at the height of the Communist scare it is one of the weakest of the constitutional speech tests.
  299.  
  300.  
  301. 20. When Pompeii, with its pornographic images and objects was uncovered, there were questions about what to do with them. Phalluses and erotic images were not acceptable in Europe at the end of the nineteenth century, but archeologists did not want to destroy the objects. They put them in a special room at the Museum of Naples, where access could be restricted to educated mature men who were believed to be incorruptible. There were similar collections, with similar restrictions, in other parts of Europe and in the British Museum. Special conditions are still attached to entrance to the room (Kendrick, 1987).
  302.  
  303.  
  304. 21. This is based on personal correspondence with a psychologist working extensively with pedophiles and active in the pedophile movement. He said his house had been searched many times in a quest for pornographic pictures. Lawyers agreed that he could not claim any kind of professional privilege.
  305.  
  306. Larry Matthews, a free lance reporter who often worked for National Public Radio and public TV, was charged with using his computer to trade images of under-age girls engaged in various sexual acts. Matthews claimed he was researching a story on child pornography, but the trial judge ruled that “a press pass is not a license to break the law” (p. A10) and said Matthews could have gathered the information needed by other methods and by interviewing law-enforcement officials. Matthew's lawyers argued that such a method would only provide a government approved version of the story, but their argument was rejected (The New York Times, July 7, 1998).
  307.  
  308.  
  309. 22. Cartoon images, which display every fantasy wish, could be used as easily as real pornography for the seduction of children. 3d images can be equally erotic, since they also display fantasy. Apparently, though, adult pornography is the most common thing used in the seduction of children.
  310.  
  311.  
  312. 23. In his opinion Kennedy notes that the statute attempted to punish the original distributors, but also punishes even those possessors who took no part in pandering. “Once a work has been described as child pornography, the taint remains on the speech in the hands of subsequent possessors, making possession unlawful even though the content would not otherwise be objectionable” (Ashcroft v. Free Speech Coalition, 2002, p. 242). In a subsequent case, United States v. Williams (2008) Kennedy seems to have partially reversed himself when he concurred in Justice Scalia's decision upholding the constitutionality of the PROTECT Act's provisions against pandering child pornography - even if the pandered product was not, in fact, child pornography. There is some indication from the oral argument that Kennedy's support was limited. Justice Souter's dissent argued that the majority opinion was inconsistent with Ashcroft.
  313.  
  314.  
  315. 24. No significant studies of the content of newsgroups have been done, and since it is illegal and significantly punishable to keep images, it is hard to do a valid statistical sample.
  316.  
  317.  
  318. 25. The lack of adults is interesting. My own theory is that, as in the dominant culture, the portrayal of children and youths in pornographic sites is as innocents, though not necessarily as sexual innocents. In this environment the visual presence of adults would be an intrusion - though of course it is probably adults who are making and gazing at the images.
  319.  
  320.  
  321. 26. Most of the discussions of child porn models have been highly speculative, often assuming that the models were being groomed for later pedophile relationships. Newspaper accounts have almost always assumed that the youths were being exploited even when they themselves were soliciting viewers (Chase & Statham, pp. 11-13).
  322.  
  323.  
  324. 27. Some are harmed, or are on drugs. Many clamor to get into the business, though, and it even has its own Oscar type ceremony. There is a great deal of money and glamour attached to the industry.
  325.  
  326.  
  327. 28. Rind et al. (1998) found that the experiences of boys and girls are significantly different. “Two thirds of male child sexual abuse (CSA) experiences, but less than a third of female CSA experiences were reported not to have been negative at the time. Three of every eight male experiences, but only one of every 10 female experiences, were reported to have been positive at the time” (p. 42). Rind et al. (1998) speculates that this difference might have biological roots, since boys are more sexually active than girls, or they might be due to social norms that encourage sexual expression in adolescent boys and emphasize romance and nurturance in girls (p. 43). (For more Rind articles go to http://www.ipce.info/ipceweb/Library/reg_r.htm).
  328.  
  329.  
  330. 29. “Self reported effects from CSA revealed that lasting psychological harm was uncommon among the SA college students. Perceived temporary harm, although more common, was far from pervasive. In short, the self-reported effects data do not support the assumption of wide-scale psychological harm from CSA … Two thirds of SA men and more than one fourth of SA women reported neutral or positive reactions. [This] finding is inconsistent with the assumption of pervasive and intense harm… . [T]he magnitude of the CSA-adjustment relation was small for women, despite the reporting of negative reactions by a majority of SA women. This low intensity finding for generally negative CSA experiences is inconsistent with an expectation of intense harm from nonnegative CSA experiences… . Multiple regression analysis showed that the intensity of the relationship between CSA and adjustment varied reliably as a function of gender, level of consent, and the interaction of these two factors” (Rind et al., 1998, pp. 44-45). Although college students are referenced in the quotations I have used, the article found no significant difference between college students and non-college students.
  331.  
  332.  
  333. 30. The harm arguments are scientifically questionable, but culturally unassailable. A significant number of scholarly articles about children involved in erotic relations with adults indicate that children (especially boys) involved in consensual relationships often have positive experiences. They criticize the methodological and conceptual flaws of the literature in this area. Alayne Yates (1997) discusses the methodological problems with research on child abuse, including the use of atypical populations, inappropriate statistical analysis, and confusing the effects of the abuse with the effects of intervention. He argues that we know little about the sexual development of children, largely because there are strong social sanctions about asking normal (“innocent”) children about sex. Therefore researchers only question youngsters who show bad symptoms. “This situation is analogous to the late nineteenth century, when many studies reported that masturbation caused mental and moral decay. These studies were solely based on interviews with inmates of insane asylums” and concluded that since they masturbated there was a causal relationship between masturbation and insanity. Paul Okami, (1990) argues that the literature assumes all sex is bad and coercive. “In accord with Victorian tradition, adult females, adolescents, and children - children in particular -- are painted in highly idealized hues. The Victorian idealization of children as sexless innocents is clearly apparent in … assertions that children are by definition incapable either of desiring or voluntarily cooperating in a sexual interaction with an adult” or even another child (pp. 96-97). Theo Sandfort (1984) claims that negative outcomes are associated primarily with coercion, not with consensual relationships. Edward Brongersma (1986) uses interviews and historical and ethnological examples to discount the idea that boys are harmed in consensual relationships. There are also many testimonials in the newsgroups claiming that the experience of being the child partner in sexual relationships was positive. Many write that they were the seducers. My own experience also enters in here. After I wrote an article that dealt with pedophilia I got dozens of calls from men who said that they had benefited from boyhood relationships with adult males.
  334.  
  335.  
  336. 31. The argument is not as simple as the assertion that “kids can't consent” makes it seem. A thorough examination of the issue is outside of the scope of this article, but a few problems deserve to be raised. Consent arguments usually refer to informed consent, and in the case of minors it is used to protect them from contracts that will bind them in the future. Thus a contract with a youth to make child porn films for the next five years could not be enforced in the courts even if child pornography were legal. But that does not mean that a young person cannot consent, or at least dissent, from participating in an act that hurts or feels bad. There are contradictory images of young people in this area. It is often argued that they are out of adult control, but if sex is involved we characteristically assume they are passive victims. In practice, we use a special social construction when youths are involved, implicitly claiming that they cannot consent to things that adults disapprove of. In the sexual area the young are always posited to have been seduced or forced to have sex, or to have their photos taken nude. As used to be true in the analysis of adult pornography, it is argued that apparent consent reflects a child's limited understanding. No proof of harm or coercion is required, and no refutation is permitted. The claim is that children cannot consent because they are subordinates who do not have any agency or control in relationships with adults. That formula is consistent with the ideology of the innocent child, but ignores much of the philosophical, literary and sociological analyses of dominant/submissive relationships, which indicates that the subordinates exercise a great deal of control over the relationship. (A good example is when parents try to please their children.) Lolita (Nabokov, 1955), a story about a pedophile relationship, has Lolita in control. The same is true in Mann's “Death in Venice.” Genet (in The Balcony), Gide (in The Immoralist) and Sartre in “Anti Semite and Jew” analyze this issue. Lynn Chancer (1992) gives a good summary of the sociological literature in this area. There is also a great deal of anecdotal evidence about adults serving the child in pedophile relationships. See Edward Brongersma (1990). Newspaper accounts usually frame incidents in which children seduced adults as a seduction by the adults. In a New York Times article (2005, December 15) a boy made hundreds of thousands of dollars charging men who watched him undress and masturbate in front of his webcam. But the boy isn't portrayed as a seducer, or an active agent. He is portrayed purely as a passive victim. Apparently the men forced him to undress in his room in front of his webcam, and forced him to solicit business.
  337.  
  338.  
  339. 32. The outstanding scientific study is by Rind et al. (1998). There is not much evidence that it harms boys, but it is more harmful to girls. Boys are more sexual adventurers.
  340.  
  341.  
  342. 33. There is anecdotal evidence that models do not turn against the photographer or painter, and do not regret the images that were made. Lewis Carroll remained friendly with the girls who posed nude for him. Von Gloeden was adored by his boys. Mapplethorpe's Rosie, now grown, has put her picture in the window of her restaurant and says that she thinks it is beautiful. Caravaggio's and Donatello's models remained close to them. Jock Sturges' models were all proud of the photographs and remained friends of Sturges and admired him. Will McBride's model's also remained friendly, as did Lohmuller's models. In the movie business the young actors in Larry Clark's film Kids, who would be far more identifiable than normal porn models, have not expressed regret. Admittedly, anecdotal evidence is not worth much. It is, however, the only evidence we have at this point. And it does serve to raise doubts about the common idea that all the models involved in the production of child porn will regret it and feel that viewers of the images are violating their privacy.
  343.  
  344.  
  345. 34. Chief Justice Burger, writing for the Court in 1973, argued against the idea that the First Amendment protected pornography. He asserted that, through the police power, the state could restrict pornography to improve the quality of life and total community environment, to improve the tone of commerce and to protect the public safety. It didn't matter that the state might be acting on the basis of unverifiable assumptions, since the Constitution didn't require empirical verification of government action in any area (Paris Adult Theater I v. Slaton, 1973).
  346.  
  347.  
  348. 35. When I was in the Peace Corps, many groups would not allow photographs to be taken, since they thought the photographic image captured the subject's soul. This was a fairly common view in Africa.
  349.  
  350.  
  351. 36. Though there are many assertions, there is little evidence that pornography leads to violence. As Gore Vidal said, “The only thing pornography is known to cause directly is the solitary act of masturbation” (Strossen, 1995, p. 247). See Marcia Pally (1994). Nadine Strossen (1995) also goes over the arguments. It is noteworthy that Japan has a very low violence and sexual violence rate, though it has a great deal of pornography, much of it extremely violent. The same is true for the Scandinavian countries
  352.  
  353.  
  354. 37. An example of this is that sales of sunglasses are highly correlated with the number of sunburns. Obviously, sunglasses do not increase the number of sunburns -- rather, both things are related to a hot summer sun.
  355.  
  356.  
  357. 38. Evelyn Hooker (1957) wrote a classic article on the flaws of research in highly contested sexual areas.
  358.  
  359.  
  360. 39. Indeed, academic arguments that question this view often raise a considerable fuss, as with Rind et al. (1998). The findings of the article were widely deplored, and Congress censored it because they did not like the conclusions (Mirkin, 2000).
  361.  
  362.  
  363. 40. That was especially true of many theorists that were important in the 1960s, like Herbert Marcuse, Paul Goodman, Norman O. Brown and others. Foucault is an important theorist in this area.
  364.  
  365.  
  366. 41. Catharine MacKinnon (1993) would also argue that it serves as an organizing tool for the sexual majority, causing identification among patriarchal males and creating a subservient mindset in females.
  367.  
  368.  
  369. 42. One of the most famous slogans of the feminist movement - “The personal is the political.” - says it all. Arguments about gay marriage and sodomy laws illustrate the political nature of the issue. Catharine MacKinnon is one of the primary advocates of a limitation on pornography. She argues that this type of image degrades women and is a power tool of the make hierarchy. In other words, pornography presents a different, and to Mackinnon, obnoxious, set of gender categories. She argues that speech shouldn't be protected more than other political categories - that the first amendment shouldn't be privileged above the 14th. I personally don't think that her argument has merit, since it could be used to silence any group that is politically less powerful than other groups, but it nonetheless illustrates the political element in the construction of sexuality. Each of our political categories - blacks, Hispanics, women, children, men, Indians, aliens, legal immigrants, illegal aliens, etc. is a category that we fight about, and has an identification that we settle politically.
  370.  
  371.  
  372. 43. Tien (1994) argues that the construction of children's sexuality is “being used to regulate both the uses and the structure of electronic information technologies …” (p. 121). The control moves towards both increased censorship and increased surveillance, and both are largely done by private information providers and universities who “feel pressure to restrict access, censor their users or monitor traffic … in case illicit material may be present.” This leverages the law, and the “result is a reorganization or a disciplining of information space.” The new forms of control tend to be subtle and are often not defined as surveillance. “Highly public instances of indecency and child pornography still function as public morality plays and ceremonial displays of power which both establish the credibility of surveillance and publicly affirm its legitimacy” (pp. 142-143).
  373.  
  374.  
  375. 44. From “The Childhood of a Leader.” Quoted by Thomas S. Szasz (1970, p 269). After discussing the widespread and intense nineteenth century belief that masturbation caused madness, Szasz asked how the idea could have been so widely accepted. He attributed it to the “tendency to embrace collective error” and argued that people were more interested in “preserving popular explanations which tend to consolidate the group than in making accurate observations which tend to divide it” (p. 187). Writing in 1970 he observed that there was “no significant difference between the former persecution of masturbators and the present persecution of homosexuals… .” Both were exercises in power (p. 193). The groups were scapegoats. “[B]oth the medieval witch and the modern mental patient are the scapegoats of society. By sacrificing some of its members, the community seeks to 'purify' itself and thus maintain its integrity and survival” (p. 260). Scapegoat rituals allow us to transfer our guilt and suffering to another being who will bear them for us. “The scapegoat is necessary as a symbol of evil which it is convenient to cast out of the social order and, which, through its very being, confirms the remaining members of the community as good” (p. 268), Hunter (1991) also argues that moral scapegoats serve to bring a community together (p. 156).
  376.  
  377. ===========================================================
  378. REFERENCES
  379. ===========================================================
  380.  
  381.     * 4. Bauserman, R. and Rind, B. (1997) Psychological correlates of male child and adolescent experiences with adults: A review of the non-clinical literature. Archives of Sexual Behavior 26:2 , pp. 105-141.
  382.     * 5. (1986) Bowers v. Hardwick. 478 US 186.
  383.     * 6. Brongersma, E. (1986) Loving boys: A multidisciplinary study of sexual relations between adult and minor males Global Academic Publishers , New York
  384.     * 7. Brongersma, E. (1990) Boy-lovers and their influence on boys: distorted research and anecdotal observations. Journal of Homosexuality 20:1/2 , pp. 145-173.
  385.     * 8. Chancer, L. (1992) Sadomasochism in everyday life: The dynamics of power and powerlessness Rutgers University Press , New Brunswick, NJ
  386.     * 9. Chase, E. and Statham, J. (2005) Commercial and sexual exploitation of children and young people in the UK - A review. Child Abuse Review 14:1 , pp. 4-25.
  387.     * 10. Cole, D. (1994) Playing by pornography's rules: The regulation of sexual expression. University of Pennsylvania Law Review November , p. 143.
  388.     * 11. Cordelle, F. (2006) Bodies and souls: The century project Heureka , Ancaster, Ontario
  389.     * 12. (1951) Dennis v. United States. 341 U.S. 494.
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  435. ===========================================================
  436. Notes
  437. ===========================================================
  438.  
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