y thinking is at odd with the Supreme Court’s ruling in Ashcroft v. The Free Speech Coalition according to which virtual child pornography is protected by free speech.  In fact, I think that the ruling is inconsistent.  I hope to establish this in a rather surprising way.  At the outset, though, let us distinguish between: (i) children engaging in acts of sex and (ii) pictures of children that are pornographic owing to the sexual character of the imagery (for example, all individuals are nude and the adult is engaging in sexually explicit behavior, such as masturbating, but the child is not participating in a sex act,).  I am going to focus upon the latter.  The issue of harm is easily established with the former.  The latter, though, presents problems for the harm argument.

To begin with, we all agree that child pornography of all forms is morally unacceptable.  But where exactly is the harm with pictures of children that are riveted with sexual imagery, where all are nude but we do not have a sex act involving the child, although the adults are exhibiting sexually explicit mannerisms?  The answer has nothing at all to do with children not being able to give consent; for pictures of children are taken all the time without their consent.  Pictures of newborn babies are routinely posted on various photo sites and sent across the internet without the permission of the children in question.  No one thinks that this is even remotely inappropriate.  Quite the contrary, we expect it. 

How exactly is a nude 7-month old infant harmed by a photo of her or him placed in a very explicit sexual position with an adult—say, sitting on the knee of a nude adult male with an erection?  Let us call this Photo Exhibit A.  I assume that we take this to be absolutely and unequivocally morally unacceptable.  But how exactly is the 7-month old actually harmed?  A 7-month old infant has no concept of a penis, let alone an erect penis.  And a 7-month old certainly has no concept of inappropriate behavior with respect to the penis.  For a 7-month old, the penis and the finger are merely different body parts.  So, in what sense is an infant harmed merely by having a photo of her or him taken while sitting on the knee of a male with an erection, where all are nude? 

One can, at once, be more graphic and more disgusting here.  Suppose that an adult in the nude engages in masturbation while holding her or his nude 7-month old infant on the knee, and takes a picture of this.  Let us call this Photo Exhibit B.  The entire thing is despicable on so many levels.  Just so, in what sense is the 7 month old infant harmed?  A 7-month old has no concept of masturbation.  The infant either experiences the moment as some sort of annoyance or some form of amusement.  An annoyance is not thereby a form of harm, however.  Children experience annoyances all the time without anyone thinking for a moment that they are being harmed. 

In any case, the Supreme Court would surely consider Photo Exhibits A and B pornographic, as would I.  Moreover, the Court would rule that the photos are not protected by free speech.  But what makes these two isolated instances unprotected free speech cannot be explicated simply in terms of the infant being harmed.  For in these two isolated instances it is not at all clear that we have anything remotely resembling a harm that the 7-month old infant suffers.  There is none of the violation of trust that is characteristic of sexual abuse.

Children are harmed by being forced to engage in sex acts owing in part to the violation of adult trust that this involves.  I have not said anything to the contrary.  My observation, though, is that we can think of lots and lots of pictures, as Photo Exhibits A and B make abundantly clear, that rightly count as pornography involving children, where in point of fact no harm at all is done to the child. 

I hold that something can be morally disgusting without any actual harm being done.  Suppose a person simulates sexual movements by lying upon a life-size picture of either one of the major prophets of the three monotheistic religions.  A person who does this in the privacy of her or his own home harms absolutely no one.  The behavior is morally disgusting all the same.

Now, to be sure, one rightly notes that the U.S. Supreme Court would never deny that Photo Exhibits A and B are morally disgusting.  It is just that, so the argument would continue, the Court’s argument is tied to the child being harmed, and not to so evanescent a notion as moral disgust.  But if this is right, then it is not clear how the Court can rule against the making and dissemination of Photo Exhibits A and B. 

Well, the argument might be that although the children in Photo Exhibits A and B are not harmed, older young children (between the ages of 4 and 7, say) who see these photos will be harmed.  But this argument is hardly a good argument.  The Court has held that adult pornography in general is protected as a form of free speech.  Yet, it is not implausible to think that pornography is apt to be harmful to children who come across it.  Acknowledging this, the Court rightly holds that we are simply under a most stringent obligation to make it the case that adult pornography does not fall into the hands of children.  Well, why does this reasoning not apply equally to Photo Exhibits A and B?  Of course, some 10 year old might run across such a photo.  But then some 10 year old might run across some adult porn, too.  Surely some have and went on to live wholesome lives. 

Now, imagine Virtual Photos of Exhibits A and B.  So by hypothesis, we do not have a real child or adult.  With the Virtual Photos of Exhibits A and B, it follows that no one is harmed.  After all, there is no real person there to be harmed.  But what actually is doing the work here?  Of course, the absence of a real person ensures trivially that no one is harmed.  Here is the problem, though.  If it can be made reasonably certain that no harm will result even if real people are involved, then what argument can there be for not allowing real people to be involved?  The answer, if one is relying solely upon the harm principle, is none. 

My move, then, is quite a surprising one.  If the Court is prepared to allow that the Virtual Photos of Exhibits A and B are protected as a form of free speech since no harm is in fact done, then consistency requires that the Court allows that Photo Exhibits A and B are also protected in the name of free speech; for we do not get any harm there either.  The presence of an infant in the actual photos does not entail that a harm occurs to the infant. 

It is easy to miss the tension in the Court’s ruling if we focus upon explicit sexual acts on the part of children.  For then, we do perhaps get a vivid difference between virtual child porn and pornography involving real children.  Porn, however, is wide-ranging in terms of its content.  And there are lots of ways in which children can be depicted in a pornographic manner without there being a single sex on the part of the child.  Fortunately, the Court recognizes this; and it does not allow these sorts of pictures.  Its mistake, though, consists in thinking that we necessarily have a harm to the child in cases of this latter kind.  That thesis is just so much hand-waiving.  A nude male masturbating while holding a nude 7-month old infant on the knee is quite disgusting.  But we do not thereby have a harm to the infant here. 

Alas, this blog-entry turns upon what we already know.  Sometimes, even in the law, the issue is not that of harm, but of the utter moral repugnancy of the act itself.  Child pornography, virtual or otherwise, is an excellent case in point.  This is why I maintain that Photo Exhibits A and B, on the one hand, and Virtual Photo Exhibits A and B, on the other, stand or fall together; and I claim that they both fall.  In any event, to pretend that harm decisively marks the difference between the two is but a fabrication.  Pace Plato's idea of a noble lie: The fabrication may be a useful one, but it is a fabrication nonetheless. If, however, the only thing that matters is harm, then nothing could be more inappropriate than attributing harm where there is none.  So it is even if one is the Supreme Court of the United States.  Now, even if harm is what matters most, it is simply false that harm is the only thing that matters when it comes to what should and should not be permitted.  And this the Court should know.