The Limits of Protection : Sure, Suppress Kid Porn, but Be Careful How You Do It

The U.S. Supreme Court decision allowing states to outlaw or stiffen penalties for the private possession of pornographic photographs of children is a necessary step, though the lawmakers, who now will move to implement it, would do well to heed the reservations of the three justices who dissented from Wednesday’s ruling.

At root, the court held, the issue created by such pornography is one of child protection and only peripherally one of expression. In fact, writing for the six jurists who voted in Osborne vs. Ohio to uphold Ohio’s statute banning possession of child porn, Justice Byron R. White took care to say that the court did not intend to diminish the constitutional protection it extended to the private possession of obscene material in the 1969 case of Stanley vs. Georgia. In that instance, White noted, the state incorrectly “sought to proscribe the private possession of obscenity because it was concerned that obscenity would poison the minds of its viewers.” That “paternalistic” approach, he said, infringed on First Amendment freedoms.

The Ohio law, on the other hand, sought to “protect the victims of child pornography” by “destroy(ing) a market for the exploitative use of children.” To that end, it was “reasonable for the state to conclude that it will decrease the production of child pornography if it penalizes those who possess and view the product, thereby decreasing demand.”

In his minority opinion, however, Justice William J. Brennan reminded his colleagues that laws governing even so offensive an expression as child pornography inevitably involve some balance between “the First Amendment and the state’s interests”--in this case protection of children’s health and welfare. As originally drafted, Brennan pointed out, Ohio’s statute was dangerously broad. Had its scope not been narrowed by Ohio’s own Supreme Court, the law, Brennan wrote, would have permitted prosecution of individuals who have pictures of “teen-agers in revealing dresses” or “even of toddlers romping unclothed.”

That sort of sloppy and potentially dangerous ambiguity is precisely what the California Legislature ought to avoid as it moves to make possession of child pornography a felony rather than a misdemeanor, as it is now. It also ought to avoid any flirtation with the so-called “strict liability” provisions that have opened some federal laws to challenge because they allow prosecution of people who unknowingly possess such material.

The state’s interest here is in rooting out a despicable vice, not in the proscription of speech, however noxious.