THIS MONTH, the United States Supreme Court issued one of the half-dozen most important First Amendment decisions in recent decades. On the surface, the majority opinion in Ashcroft v. Free Speech Coalition looks like the latest in a series that try to draw a line between protected and prohibited sexual images. But in fact the Supreme Court has done far more than that. It’s issued a wake-up call to those who would, under whatever guise, seek to impose on others their ideological agendas by criminalizing thoughts as well as the graphic depiction of those thoughts. In short, this decision protects much more than the freedom to create child porn on a computer; it reaffirms the Constitution’s historic mission of protecting the right to think one’s own thoughts.
In 1996, Congress passed the Child Pornography Prevention Act, which made it a felony to possess "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct [italics added]." It also prohibited the advertisement, promotion, presentation, description, or distribution of any sexually explicit image that "conveys the impression" that it depicts "a minor engaging in sexually explicit conduct [italics added]." In other words, simulated child pornography was to be treated as if had been created by exploiting real children as models and actors.
In challenges to the law, four of the 11 federal circuit courts of appeals (including the First Circuit, located in Boston) upheld the constitutionality of the statute. These appellate-court rulings weren’t all that surprising, given the Supreme Court’s leniency toward legislative efforts to stamp out child pornography: in 1982, in New York v. Ferber, it created a distinction between pornographic material that depicts children and such material that depicts adults by ruling that the production and distribution of child porn is not constitutionally protected; in 1990, in Osborne v. Ohio, the Court refused to give First Amendment protection to the mere possession of child porn in the privacy of one’s own home. The appellate courts merely assumed, however cynically, that the Supreme Court would continue to make broad exceptions in the First Amendment when it comes to dealing with child pornography — even simulated child porn.
In 1999, however, the US Court of Appeals for the Ninth Circuit, which sits in California, declared the law invalid. It narrowly interpreted the Supreme Court’s earlier decisions — which gave the government unusually broad powers regarding child porn — by taking seriously the Supreme Court’s claim that it was seeking to prevent the exploitation of children rather than to establish a national standard of morality. In a decision that took an expansive First Amendment approach, the Ninth Circuit ruled that the government could not prohibit speech merely because it might tend to persuade viewers to commit illegal acts.
By affirming the decision of the Ninth Circuit, the Supreme Court has made a significant distinction between unsavory speech and thought on one hand and unlawful conduct on the other. Real child porn, pointed out the Court, is made by exploiting real children, while cyber porn is a product of the imagination and does not involve the participation of a real child. Images that spring totally from the human mind, aided perhaps by a computer’s graphics capabilities, do not harm real children. To outlaw such material is, in effect, to ban an idea, not the actual exploitation of children. The Court thus made clear that it was interested in protecting kids, not controlling adults’ thoughts and attitudes.
This decision has far-reaching implications for the ongoing battles between civil libertarians and the political-correctness brigade sweeping workplaces and college campuses. In recent decades, the proponents of political correctness have shown a marked tendency to confuse thoughts and words with unlawful actions; they then take the additional step of seeking to control and even reform people’s views on important social and political issues through that pernicious invasion of the human mind and spirit known as "sensitivity training." So how, one asks, can a decision limiting the reach of the federal anti-child-pornography statute end up as a weapon in liberty’s arsenal against the proliferation of politically correct thought-reform programs? Here’s how.
THE COURT’S sharp distinction between real and cyber-generated child porn is crucial, for it draws a First Amendment line in the sand that is fundamental to what freedom is really all about — the freedom to think. The statute, as enacted by Congress, "proscribed the visual depiction of an idea," wrote Justice Anthony Kennedy for the Court majority. And the right to depict ideas is the fundamental core of what the First Amendment, at its most profound, protects. As Kennedy further wrote: "The government cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts. First Amendment freedoms are most in danger when the government seeks to control thought.... The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."
The distinction between speech, thought, and attitudes on the one hand, and action on the other, may seem simple and obvious. But it has been under sustained attack in recent decades not only by those who seek to rid the marketplace of "bad" words, pictures, and thoughts that might arguably induce bad actions in vulnerable individuals, but also by the politically correct social engineers who would expose — sometimes forcibly — workers, students, and even teachers to "sensitivity training" in an effort to change both their actions and their attitudes. Such "harassment" codes, which are ubiquitous in industry and education, already endanger freedom by confusing words and actions, and by classifying offensive words as "harassment" when they "create a hostile environment" on the basis of race, gender, or ethnicity. Insofar as they deal with mere speech, these codes should be ruled unconstitutional because they censor speech. But mandatory "sensitivity training" programs, which are increasingly common, go even further by inculcating politically correct attitudes, in addition to censoring politically incorrect speech. And it is precisely these programs' intent to change attitudes, often through forced attendance, that will now run up against the explicit First Amendment protection enshrined in the Free Speech Coalition opinion. This is a vital victory for a more fundamental but less recognized aspect of First Amendment liberty: protection not only from being censored for expressing views in which one believes, but also from being coerced — successfully or not — into expressing views in which one does not believe. The recognition that the First Amendment protects thoughts and attitudes — the mind and spirit as well as the tongue — is basic to understanding the core of liberty.
In 1943, for example, in the landmark case of West Virginia Board of Education v. Barnette, the Court, in the midst of World War II’s patriotic fervor, ruled that Jehovah’s Witness children could not be forced to pledge allegiance to the flag, since their religion deemed such an act to be akin to idol worship and hence biblically prohibited. In 1969’s Stanley v. Georgia, which protected the possession, in one’s home, of hard-core pornography featuring adults, the Court noted that the drafters of the Constitution "recognized the significance of man’s spiritual nature, of his feelings and of his intellect." Added the Court: "Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds." And in 1977, the Court invalidated a New Hampshire requirement that all citizens’ cars bear the motto LIVE FREE OR DIE on their license plates, ruling that the state did not have the power to coerce a citizen to broadcast a point of view "which [he or she found] morally, ethically, religiously, and politically abhorrent." The Court was clear that "the right of freedom of thought protected by the First Amendment ... includes both the right to speak freely and the right to refrain from speaking at all."
