Relocating oral argument to the E. Barrett Prettyman Federal Courthouse after the discovery of anthrax in the U.S. Supreme Court mailroom affords the itinerant Supreme Court anthropologist an opportunity to study the justices(juris doctoris maximus) outside their natural habitat. The disadvantage of the anthrax discovery is that several of us itinerant anthropologists are scared out of our freaking minds. The press corps chats about who’s on Cipro and who’s not. My ruling, following substantial oral argument for each side: “If you don’t know where the Supreme Court mailroom is, you don’t need antibiotics.” This will someday be lauded as either temperate good judgment or an appropriately ironic epitaph.
The ceremonial courtroom at the federal courthouse—as you may recall from the Microsoft appeal—features marble and wood paneling and tasteful, fully clothed portraits of white male lawgivers. It is also painfully bright with buzzing fluorescent bulbs overhead. The nine justices, accustomed as they are to the dark, Italian-restaurant mood lighting of their little cave opposite the Capitol, blink funny troglodyte eyes out at the crowd, trying not to look like french fries under the heat lamps at Burger King.
The first thing I notice in all this dazzling brightness: a lot of these justices are really, really old. Instead of beaming down from their Planet of Justice to their customary seats before the red velvet curtains, we watch them shuffle, laden down with their briefs and books, in a long procession up to the bench. When Chief Justice Rehnquist takes his customary walks (necessary to relieve his chronic back pain), he doesn’t disappear behind a velvet curtain, looking learned. Instead he ambles behind the bench, stops, looks perplexed, turns around. Maybe we’re all just a bit fragile right now, but this great klieg light unmasking makes me long for the smoke and mirrors of the big marble temple up the road.
Speaking of smoke and mirrors, today’s case is Ashcroft v. The Free Speech Coalition, a case about the First Amendment protection afforded to fake kiddy porn. While it might seem to you that the high court is porn-crazed these days, please note that virtual porn can be distinguished from genetically engineered porn corn: Unlike with hybrid genetically altered corn, there is no real sex happening in virtual pornography. Virtual porn is either computer-generated kiddy porn (aka “Toy Story porn”), or it features actors who look like high-schoolers but are, in reality, old enough to collect Social Security (aka “90210 porn”).
Although no actual children are harmed by the production of these materials, Congress—feeling that all children, or some children, or perhaps just the principle of childhood writ large, are violated by fake child porn—criminalized these materials when they enacted the Child Pornography Prevention Act in 1996. The production or possession of outright child pornography was already illegal. The CPPA, among other things, criminalized “morphed” or computer-altered images. In the provisions challenged today on appeal, CPPA also expanded the definition of child pornography to include images that “appear to be” of minors engaged in sexually explicit conduct, as well as images that “convey the impression” that the participants are minors. In other words, it’s not the use of children that’s now illegal. It’s the realistic use of fake children.
The Free Speech Coalition, a trade association of “businessmen” in the “adult entertainment field” filed suit in federal district court in California, seeking to enjoin the new law as constitutionally overbroad and vague, in violation of the First Amendment. They lost in district court but won in the Ninth Circuit Court of Appeals, when a panel voted, 2-1, that if no real children are involved, then no real damage has been created. The case that had previously set the parameters on porn is a 1982 decision, New York v. Ferber, in which the Supreme Court upheld a ban on even non-obscene child pornography because of a heightened state interest in protecting children. Child pornography always received very little First Amendment protection, but after Ferber it arguably received less.
Of course, the Ferber court was worried about protecting real children, and CPPA is worried about protecting children generated by MacPaint. But the real tension that quickly emerges on the court today is about taste, pure and simple. In a fruitless exercise of argument by example, justices cast about for examples of virtual kiddie porn with artistic or social value, or examples of virtual kiddie porn so real as to be indistinguishable by trained experts.
Justice Scalia is the standard bearer for the all-child-copulation-is-obscene-garbage school of jurisprudence today. As the court debates the artistic and social merits of simulated sex between minors in movies such as Traffic, Lolita,or Titanic, Scalia snaps: “I don’t know whether they depict simulated sexual activity or not. I didn’t see any of those movies.” Later, he pillories Louis Sirkin, counsel to the pornographers, with, “I’m trying to think of what works of art would be taken away from us if I can’t see adolescents copulating.”
Sirkin offers him a who’s who of art-house classics: “Lolita, Tin Drum, Traffic, Brooke Shields movies that maybe some people don’t enjoy ...” Scalia, clearly in the “some people” camp, sneers back that none of these are great works of Western art. When Stevens tries to give Sirkin a hand, suggesting Romeo and Juliet as a helpful example of tasteful kiddie porn, Scalia turns on him too. “Gee, you’ve seen a different version than me,” he laughs.
Ten-to-1 odds that Clarence Thomas has seen the Stevens version ...
Deputy Solicitor General Paul Clement offers his unsolicited opinion that Traffic would have been just as good “without the simulated sexual activity” of a minor child, which is why he’s in the E. Barrett Prettyman Courthouse this morning and not doing deals with Jennifer Lopez on a cell phone at The Ivy.
On the other side, the government attempts to argue that virtual porn harms real children in real ways, most notably by allowing pedophiles to lure and desensitize child victims and to whet their own sexual appetites. The Justice Department also argues that it will never be able to prosecute real child pornographers if the “cover” of claiming that the porn is computer-generated is available as a defense. This leads to a good deal of speculation over whether even the experts can discern a difference between real and virtual children.
Justice Breyer several times today cites the famous Potter Stewart “I know it when I see it” formulation for what constitutes obscenity. But the problem with virtual kiddie porn is that we don’t know it when we see it. We don’t even know what we’re seeing. We’re then left to dither over the effects of kiddie porn. Does it harm kids? Does it make perverts more perverted? The ninth circuit wasn’t impressed with much of that speculation, and as Justice Ginsburg points out today, it’s a short hop from banning virtual kiddie porn because of what it makes you feel about children to banning adult porn, or hate speech, because of what it makes you feel about women or racism.
It would be easier if one didn’t feel, deep in one’s heart, that Justice Scalia has a point. Is society really impoverished without graphic images—real or simulated—of children engaged in lurid sexual acts?
In the bright, bright lights of the federal courthouse, that just doesn’t seem to be the case.