he ideal of free speech should not in any way whatsoever be a haven for purveyors of child porn.  And it is this very straightforward truth that animated Justice Antonin Scalia’s thinking in his opinion rendered in the case of United Stated v. Williams, which was a 7-2 decision against Williams.  Nor, again, should it turn out that commonsense modes of expression serve as a cover for the dissemination of child porn.  Thus, in allowing that a picture sent to the grandparents of 3-year old Cambria or Zephyr taking a bath is not pornographic, we do not want the social implicature of that truth to be that pictures of child pornography must also be permitted.  Justice Scalia’s opinion is infused with this level of commonsense. 

The reference here is to the Protect Act of 2003, where “protect” is an acronym for Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today.     

The Court’s decision here has a profound brilliance to it.  Effectively, the argument goes rather like this.  Suppose that Opidopo produces computer-generated images of children engaged in various acts of sex, where the computer generate images are utterly indistinguishable from pictures of actual children engaged in various acts of sex.  Well, as disgusting as we may find this, what is true nonetheless is that Opidopo knows beyond any reasonable doubt that the images are computer generated, and thus are not in any way real.  After all, he generated them. 

Now suppose that Jacob obtains these pictures from Opidopo.  How does Jacob know that he is getting solely computer-generated pictures from Opidopo as opposed to pictures that involve actual children?  The answer is a very simple one: It will take something far more substantial than a mere declaration that the porn is virtual porn and none other than virtual porn.  Jacob will need to get assurance that this is so; Opidopo will need to provide that assurance.  This is the essence of the Court's 7-2 vote upholding the Protect Act of 2003.

The Court did not get bogged down in the question of when is a picture pornographic or not.  The Court allowed that there will always be cases whose merits must be examined on their own.  This move allowed the Court to be responsive to plain commonsense, as with the example mentioned at the outset of a picture sent to the grandparents of 3-year old Cambria or Zephyr taking a bath.  It takes a very long and unobvious story to turn that sort of picture into any form of a sex act or sexual pose.

To be sure, there is no doubt some “dirty old man” who will find such pictures arousing.  But then such a dirty old man is apt to find images of children arousing even when the children are depicted as fully clothed, to say nothing of actual children who are fully clothed.  After all, the typical pedophile goes after children who are fully clothed.

At any rate, the brilliance of the Court’s ruling in upholding the Protect Act of 2003 is that, from the standpoint of pandering and soliciting, mere declarations that the porn is virtual porn will simply not suffice.  Accordingly, someone who is interested in buying only virtual porn will have to be extraordinarily careful.  In effect, what the Protect Act of 2003 does is exploit the uncertainty that is characteristic of transactions involving actual child porn versus child virtual porn, where images of the former are often falsely declared to be images of the latter.  The Court upheld the exploitation of that uncertainty.

Free speech is important.  But it is not so important that, in the matter of protecting children, we cannot error on the side of caution in cases of uncertainty.  This line of thought animated Scalia's thinking. 

In the oddest of ways, what the United States Supreme Court did is point out that virtual porn has gotten too good for its own good.  As disgusting as it may be that a person is sexually aroused by images of children, where it is manifestly clear that these images are imperfect replicas of real children, we can rightly take consolation in the fact that no real children are involved.  Moreover, the pictures cannot be passed off as pictures of real children and pictures of real children would be unmistakably recognized as such.  This latter truth is far from being a trivial truth. 

One imagines, though, that purveyors of virtual child porn undoubtedly supposed that nothing would be better than virtual porn images that were utterly indistinguishable from actual images of children.  And therein was the source of the problem: virtual porn became too good for its own good.

On the one hand, the Court allowed for virtual child porn to be protected as a form of free speech in that a person who produced such porn for his own viewing could not be prosecuted.  This is very much in keeping with the idea that we do not have to like what a person says in order to hold the view that the individual has a right to say it and in order to be committed to protecting that individual’s right to say it.  So for those who generate their own virtual porn, the Court’s ruling is a genuine victory.  They can generate the stuff to their heart’s content.

On the other hand, if we think that images of real children engages in sex acts or sexual poses are morally repulsive, then it stands to reason that it has to be of the utmost importance that those who obtain images of children in sexual acts or poses know beyond any reasonable shadow of a doubt that the images that they obtain from others are virtual and not at all real.  For the obvious reasons, it is not even close to being good enough that a panderer of such images declares them to be virtual and only virtual.  No one obtaining such images from another could possibly think that a mere declaration by the panderer that the images are virtual images provides him with all the reason that he could possibly want for believing that this is in fact the case.  It is in regards to this simple truth that the Court has proven to be very wise.

Insofar as a person can provide certifiable proof that images of virtual images of child porn are just that, namely virtual, then the Court does not object.  However, it places the burden of proof squarely upon the purveyor of such porn and the solicitor of such porn to provide ample evidence that this is the case.  And that is a very good thing for both society and children alike. 

From the standpoint of those trafficking in virtual child porn, the Protect Act of 2003 is a very powerful weapon in the fight against actual child pornography precisely because it places a most significant burden of proof upon these individuals to be unequivocally clear that either this is what they are distributing or this is what they are getting.  Uncertainty, especially insofar as children are involved, should favor the innocent and not the corrupt.  And this, in effect, is precisely what the Protect Act of 2003 does. 

The Free Speech Coalition should be more than able to live with this ruling by the United States Supreme Court.  Virtual child porn has not been banned.  Virtual porn remains ever so protected as a form of free speech, precisely because there are no real children involved.  In effect, the Court merely said that, because the images of children are involved, the panderers and solicitors of virtual child porn must be committed to it being certifiably the case the porn in question is just that: virtual.  Even in a free society that rightly places an extraordinary premium upon free speech, this restriction can hardly be considered too great a price to pay in order to protect innocent children.  Insisting upon clarity in this in order to protect children from that which is abominable is surely morally right, and is the very least that we can do.