A number of people have sent me links to this news item throughout today. I had to run to another one of these meetings (which was actually way funner than Kelly’s video) so I’m only getting to blog this now. Which is good because in the meantime, Jacob Sullum at Reason Magazine’s blog summed it up better than I could:
Today the U.S. Supreme Court upheld a federal law that makes it a crime to offer or solicit child pornography. This law defines child pornography more narrowly than an earlier statute that was overturned by the Court on First Amendment grounds, and it does not seem to leave a lot of room for punishing or chilling protected speech. But there is this strange wrinkle, noted by Justices David Souter and Ruth Bader Ginsburg in their dissent: In the case of a person offering to sell or transfer pornography, he either has to believe the images feature actual children or intend that people receiving the offer believe that. The images need not in fact feature actual children, however (or even exist). Yet the Court has said that “virtual child pornography,” featuring computer-generated or manipulated images but no actual children engaged in sex acts, cannot be constitutionally prohibited (unless it is deemed “obscene”). Hence this law punishes, among other things, speech about transactions involving legal material, on the condition that the person offering it either thinks or claims it is illegal. In such a case, the transaction itself is legal, but talking about it is not. (…The Crime of Lying About Fake Child Pornography.)
Thanks to Praemedia for the Reason link, but also thanks to Lawgeek, who sent me the ruling link at Cornell and snipped this Scalia op: “But an offer to provide or request to receive virtual child pornography is not prohibited by the statute. A crime is committed only when the speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children. It is simply not true that this means “a protected category of expression [will] inevitably be suppressed,” post, at 13. Simulated child pornography will be as available as ever, so long as it is offered and sought as such, and not as real child pornography.”
While it certainly seems incongruous, I think there are certain parallels that make it more palatable.
1. Commercial speech (ie. advertsing) has been more regulable than non-commercial speech. In this case its more complicated because the product itself is a form of protected speech, but that doesn’t mean that the commercial speech surrounding the product’s sale is equally protectable.
2. Similarly, the Fair Housing Act doesn’t prohibit discriminatory rental transactions for owner-occupied housing with less than 4 units, but does prohibit any discriminatory advertising connected with those units.