In today's paper, the New York Times laments a Supreme Court ruling that in its opinion criminalizes speech that ought to be protected by the First Amendment. In doing so, the editors would give safe harbor to pedophiles and others who sexually prey upon children.

The Supreme Court upheld a law on Monday that sweeps too broadly in its attempt to ban child pornography, which is repellent and illegal. Those who traffic in it must be punished, but this law is drawn in a way that also criminalizes speech that should be protected by the First Amendment.

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This time, the court upheld the law by a 7-to-2 vote. That creates a bizarre contradiction. Fake child pornography is protected, but marketing fake child pornography is not. As Justice David Souter noted in dissent, it makes no sense to criminalize proposing to sell items that are themselves constitutionally protected.

It may seem hard to muster much concern about the speech at issue here. But the implications go beyond child pornography. As Justice Souter reminds us, it is an important principle in the court’s political speech and sedition cases that speech cannot be banned based on bad intent, only on a “realistic, factual assessment of harm.”

If the court had struck down the offensive parts of the law, the damage to child-pornography prosecutions would be minimal. The harm of weakening the protections of free speech is far more substantial.

As I noted the when commenting on the decision, what it actually does is take the common-sense position that the attempted sale of child pornography (even if the claim by the seller is fraudulent) is within the bounds of the Constitution -- just as it would be reasonable to punish a guy working a street corner selling crack even if he was in fact lying to his buyers and selling a product made entirely of such legal products as baby powder and corn starch.

And oddly enough, despite its deference to Souter's citation of precedent in political speech cases, it is interesting to note that the new York Times is no friend to freedom of speech in that area. Its editorial pages regularly seek to regulate political discourse to an ever greater degree in the interest of rooting out what it considers to be speech with a bad motive or bad impact, despite the historical fact that the Founders intended to give political speech (not pornography that exploits children) the highest level of First Amendment protection.

So to summarize the position of the New York Times-- speech falsely promoting kiddie porn should have full protection under the Constitution, but that directed at influencing the political process ought to be reined in or gagged. It seems pretty clear where their priorities lie.

Posted by: Greg at 09:41 PM | No Comments | Add Comment
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