The child sexual abuse scandal now engulfing Penn State has given rise to much commentary on how people’s values can be distorted by the desire to protect a successful and venerated football program. The point is well-taken. Nevertheless, we also should consider another distortion in our values even more directly related to the kind of abuse in question. The roots of this distortion are in the decisions of an even more venerable and authoritative institution. Specifically, we must consider the role of the Supreme Court in fostering a culture that encourages the sexual exploitation of children.
In 1996 Congress passed, and President Clinton signed into law, the Child Pornography Prevention Act. The Act prohibited what has been termed “virtual child pornography.” That is, it was directed not primarily at the distribution of sexually explicit material made with the use of actual children; such material was already illegal. Instead, its chief aim was to proscribe material devised by other means, such as the use of youthful-looking performers or digitally created or manipulated images, to appear as if these materials depicted minors in sexually explicit ways.
The Act was challenged by a consortium of “adult entertainment” businesses calling itself the “Free Speech Coalition.” One might be tempted to react with indignation that a pack of pornographers would try to dignify its activities under the venerable constitutional concept of freedom of speech. One would err, however, if one directed this anger only at the pornographers. For the Supreme Court itself has long invited such an understanding by holding—contrary to any plausible interpretation of the Constitution as it was understood by those who wrote and ratified it—that pornography is sheltered by the First Amendment. Of course, the Court has never abandoned its longstanding doctrine that “obscenity” is not constitutionally protected speech; but this has become nothing more than a kind of jurisprudential Potemkin village. The Court assures a still somewhat morally serious public that obscenity is not protected, even as it makes it almost impossible to demonstrate that anything, even the most blatant hardcore pornography, fits its highly technical definition of obscenity. Pornography is not obscenity, the Court holds, unless it can be shown to have no socially redeeming value at all—something that would be very hard to demonstrate of any pornography that includes even one scene or element that is not itself sexually explicit.
Having thus invited the Free Speech Coalition’s challenge to the Child Pornography Prevention Act, the Court continued down this same path in its 2002 ruling in the resulting case, Free Speech Coalition v. Ashcroft. So long as it is produced without sexually exploiting any actual children, the Court claimed, even child pornography is not necessarily obscenity. That is, even child pornography may have socially redeeming value and is therefore entitled to the protection of the First Amendment.
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By this ruling, the Court contributed to a public culture that encourages the sexual exploitation of children. Most obviously, it gave constitutional protection to material that feeds and strengthens the desires of pedophiles and thereby makes it more likely that some of them will act them out. More subtly, by preventing efforts to prohibit such material, the Court helped create a culture that undermines the pedophile’s own sense that his desires are wrong and to be resisted. A pedophile without access to child pornography is simply alone with his perverted thoughts and is therefore unlikely to forget that society condemns his desires in the strongest possible terms. But a pedophile with legitimate access to child pornography, even if it relies on “virtual” images, is taught that there are others—indeed, lawful businesses and even parts of whole industries—that sympathize with his desires and will cater to them, and that in doing so they are even exercising a constitutional right. Human beings are naturally sociable creatures. They tend to think, feel, approve or disapprove, praise or condemn, in groups. Accordingly, the very existence of child pornography, especially if it is lawfully produced, cannot help but encourage pedophiles to believe that their appetites are morally legitimate, because shared and approved by others, and thereby push some of them to violate the law by sexually exploiting actual children.
Indeed, by its handling of these issues, the Court has introduced a kind of moral incoherence into American law that must erode the public’s, and especially the pedophile’s, appreciation of the immorality of the sexual exploitation of minors. According to the Court, laws forbidding the sexual exploitation of minors are legitimate, but laws forbidding the production and consumption of “entertainment” that encourages the sexual exploitation of minors are illegitimate. This is absurdity; if it is wrong to do something, then it must also be wrong to encourage it, and even to desire to do it. This is especially true if the wrong in question is criminal and indeed among the most reprehensible acts that can be imagined. Because of this contradiction, one or the other of the Court’s affirmations must be undermined: either the illegitimacy of child sexual exploitation will lead us to reconsider the idea of a “right” to child pornography, or the legitimacy of such pornography will undermine our sense of the immorality of the acts it depicts and encourages. Given the deep roots that sexual libertinism has already laid down in our culture, it is difficult not to fear that the latter outcome is the more likely. In any case, it is impossible to mistake the lesson that the pedophile will want to draw. Receiving such mixed messages from the culture, his will to resist his own impulses will be undermined.
Moreover, the Court has introduced such moral confusion into our culture not only through its First Amendment jurisprudence, but also through its invention and expansion of the “right of privacy.” In 2003, in Lawrence v. Texas, the Court found that the privacy right prohibited a Texas law against homosexual sodomy. Whatever one thinks of the outcome of the case, the Court’s reasoning was radical in its implications. In effect, the Court held that a mere moral conviction on the part of a political majority was not a sufficient basis for law. A law with no better foundation, the Court suggested, was no better than arbitrary and irrational, and was probably rooted in disreputable prejudice. As Justice Scalia pointed out in his scathing dissent, the Court’s doctrine called into question a whole field of long-established morals legislation, from prohibitions on prostitution to proscriptions of incest. Scalia’s observation also applies to laws against the sexual exploitation of minors. It would be difficult to contend, after all, that such laws are not deeply rooted in the moral convictions of the majority.
None of this is to suggest that most pedophiles are readers of Supreme Court opinions. But they don’t have to be. Almost all of them are certainly aware of the cultural establishment’s libertine conviction that an individual’s sexual desires, whatever they are, are none of the law’s business; and most of them are surely aware, at least in some dim way, that the Supreme Court has repeatedly used its authority in defense of such a view. From there it is only a short step for some of them to convince themselves that their desires really are harmless so long as they can find a child to seduce, while escaping the detection of laws that now seem to have no real moral authority.