Take virtual child porn, for example.
When the Mark Foley scandal broke, folks like Matt Drudge went about saying that sending sexually explicit requests to minors by way of Instant Message doesn’t count as sexual harassment nor as moral corruption of minors. Yet, I’m willing to bet that if you asked him, he’d be up in arms at the idea that the same modern technological communication device can be used to transmit pornography. After all, he’s a member of the same crowd that was irritated with the Supreme Court for ruling, in Ascroft v. Free Speech Coalition (2002), that virtual child porn – pictures that have been computer generated without actual children involved – is not covered under previous rulings on child porn, such as Massachusetts v. Oakes (1989), which made illegal the sexual abuse of real children and the documentation of that abuse for the purposes of profit.
These strict interpretists may very well say that the Constitution tells us that we citizens have the freedom of expression, but that pornography isn’t a protected form of expression. What they need to realize is that we live in a brave new world, one that the Founding Fathers never envisioned: A world in which mass communications allow us to send just about anything instantaneously around the globe. The Constitution was written at a time when it took Thomas Jefferson months to get from the newly formed United States to Paris, France; to expect the Constitution to have been written in such a way that would preclude internet porn is just plain silly. After all, pornography goes back millennia. If the Madison and his ilk had planned to say “Congress shall make no law abridging the freedom of expression, except in cases involving pornography”, they would have.
But they didn’t. Because they weren’t stupid.
They knew that once you start talking about specifics, it becomes a narrow path that leads to nowhere quickly. They believed that each generation would come to a new understanding as to what that document means for each era; that it would lead to national debates and discussions as to how best apply the Constitution in new situations. Now is the time for the debate as to whether virtual pornography is a legitimate form of expression.
Perhaps the Free Speech Coalition has it correct, that to make virtual child pornography illegal would have a chilling effect on the entertainment industry. Their point is that making it illegal would cause studios to stop making films such as American Beauty, which showed a minor engaged in a sexual act. The actress herself was not a minor, only played one in the movie, but because of her very believable performance, one could very well believe that it was indeed a minor having sex on film.
If the moral conservatives have their way, then those of you who watched that film have now been corrupted by virtual porn. If they’re correct, then the viewing of such ‘porn’ will cause you to believe that it’s okay for minors to engage in sexual activities – and that puts you just one step away from becoming a predator yourself.
That argument seems silly to any rational person. However, the very real debate rages on over the question of where we draw the line between the sexual abuse of a minor and entertainment. Between morally repugnant behavior and free expression. If a man taking photographs of his nude fourteen-year old step-daughter is a child pornographer, but a man making a film involving a woman pretending to be a teenager having sex is merely an entertainer; If a man convicted at the age of 19 for having sex with his 16-year old girlfriend should be registered for life as a sex offender, but a man sending sexually explicit messages to underage Congressional pages is merely ‘mentoring’, then we need to look very carefully, not at what the Constitution mentions or doesn’t mention as being legitimate forms of expression, at what our value system really is.
This is why I support such people as my friend who runs Rotten.com: people who push the boundary of what is expression, because they put the debate front and center. They push the envelope in hopes getting the rest of us out of our comfort zones and question what is, exactly, expression. They find the most horrifying, grotesque, perverted, and weird items to put on their websites, just so that the rest of us will stop taking our Constitutional freedoms for granted.
The Founding Fathers would be proud, just don’t ask them to look at the stuff.