The NYU debate team used to have a case to the effect that “virtual” child porn ought to be made legal. I never ran it myself, in part because it felt so unsportsmanlike to make people oppose something palpably, obviously true. I felt somewhat vindicated when I read of the Supreme Court’s lopsided decision striking down bans on virtual child porn, with seven justices voting against barring sexual scenes involving adults who look like kids, and six against bans on realistic computer generated images. Actually, the vote was even more lopsided than that, since some of the dissenters merely thought it would be more convenient to “reinterpret” the bans away than to explicitly strike them down.
Still, it seems that not everyone agrees with this welcome onrush of common sense. John worries that “we could never prosecute anyone because you could never prove a child was real or not…” Of course, that’s just not true, but ignore that for the moment. Jonah Goldberg writes: “Prepubescent kids should never be depicted in pornographic situations. Period.” Even when they’re, umm… not really prepubescent kids? Even when even the “depiction” is of fifteen year olds? Apparently, because “Zero tolerance is zero tolerance.” And why is it so important to display so little tolerance? That’s where people like Goldberg just sputter and give you a disgusted look. Because they have no argument.
In light of all this, perhaps I should remind everyone how the First Amendment works. For John and Jonah’s benefit, I’ll explain it with small words. Say you have Bad Speech, which is obscene or otherwise exempt from First Amendment protections. But, uh-oh, the only way to get rid of the Bad Speech you have in mind is to silence lots of Protected Speech… anything which doesn’t fall under one of those narrow exemptions. Something which, in other words, may have literary or artistic merit, even if it is about sexually active fifteen-year-olds.
Now — pay attention to this part John, Jonah — believe it or not, the appropriate legal response here is not: “Hmm. Fuck constitutional rights; someone might see a kid’s pee-pee.” Rather, when protected speech is implicated, the statute is what we call “overbroad.” So sad as it might make us, we don’t get to burn all the copies of Romeo and Juliet, even if that does make it harder to incarcerate people who like to look at naked teenagers. If we think one of five people is a criminal, but we don’t know which, we don’t just get to throw them all in prison. We have to suck it up (no pun intended) and let them all go. Maybe wanting to look at fake naked kids makes someone “sick.” But wanting to lock up real people who haven’t harmed any actual children makes you much, much sicker.