kids_and_cyberporn_godwin

[Huerfano County Public Library]

CHILDREN, CHILD ABUSE, AND CYBERPORN: A Primer for Clear Thinkers Article for Internet World By Mike Godwin About 1900 words Here's an interesting experiment. Try combining the topics of Sex, Children, and the Net in a magazine or newspaper story, or even in an online discussion. Amazingly, this combination will almost invariably cause ostensibly intelligent people to shut down their higher thinking centers. Let's hope this column proves an exception to the rule. For me, the most recent example of this rule appeared on America Online in Time magazine's online forum, Time Online. Now, Time has done a pretty good job in general of creating a lively and interesting discussion forum, but sometimes the corporate interests of Time Warner skew the discussion. Take for example the following posting by RPTime (Robert Pondiscio, a public-relations flack for Time magazine) in the topic dedicated to discussion and criticism of Time's now-notorious "Cyberporn" cover story. Shortly after the national press reported that the Justice Department had announced a dozen arrests in a two-year investigation into the use of commercial online services to distribute child porn and to seduce minors into sex, the following message appeared in the "Cyberporn" topic in Time Online: ------------------------------------ Subj: Arrests 95-09-14 10:20:08 EDT From: RPTime Posted on: America Online Looks like the FBI has arrested a dozen people in connection with the biggest non-problem in cyberspace. The feds have reportedly seized digitized pornographic images of children as young as two years old from members of this very online service. I'll be interested in the reactions of our First Amendment absolutist friends. Perhaps they will argue the arrested should be released, and the parents of children involved should be charged with neglect for not adequately supervising their kids online activities. Robert ------------------------------------ Analyzed rhetorically and legally, this is a fascinating posting. In Pondiscio's defense, it must be said that he's had to work overtime in defending Time's decision to hype the fraudulent "Carnegie Mellon" study authored by Martin Rimm. Given the flood of criticism of both the Time story and the study itself, you can understand if Pondiscio is feeling a bit fried. So, you may be able to forgive his over-the-top rhetorical strategy of classing critics of the cover story as "First Amendment absolutists" who are blase about child pornography or the victimization of children. (Me, I've never met a "First Amendment absolutist" -- even the most fervent free-speech advocates I know think the First Amendment doesn't protect speech when it's perjury, fraud, or a threat. And, as a parent of a two-year-old girl, my reaction to the thought of child porn and child predators is hardly blase -- in fact, it's quite visceral and intense.) >From a legal standpoint, however, the posting is even more interesting, and far less forgivable, given Time's journalistic duty to explain the issues to its readers. You see, by posting this message in the topic dedicated to discussion of the "Cyberporn" cover story, Pondiscio is implying that the FBI raids somehow vindicate Time's decision to run the story. Yet even if we accept the (false) implication that the Time cover story was not, in fact, primarily about Marty Rimm and his Georgetown Law Journal article, Pondiscio's posting demonstrates real confusion about what the legal and factual issues relating to porn, the Net, and children really are. And confusions about the law really bug me -- especially when they're perpetrated by agents of the mainstream press. Which is why I came up with the following quick-and-dirty primer to help folks out. (Well, okay, maybe "quick-and-dirty" is not the right locution when you're talking about porn -- forgive me.) When talking about pornography and child safety on the Net, one often sees several different terms bandied about as if they were interchangeable. They're not. Here are some basic definitions: (1) PORNOGRAPHY. In general, material that presents sexual content of some sort, with the intent of being arousing. Playboy and Penthouse could be included under this definition of "pornography," and, like any other uses of the press, such material is presumptively legal under the First Amendment. To be illegal, pornography either must be found to be "obscene" (see definition of "obscenity" below) or "child pornography" (see definition of "child pornography" below). If it doesn't fall into either category, it's no more illegal than a Muppets movie. (2) OBSCENITY. To be "obscene," pornography must meet all parts of a three part test designed by then-Chief Justice Warren Burger in 1973 in a case called Miller v. California. This is normally a question of *content*. The three parts of the so-called "Miller test" are as follows: a) State statute. Normally, there must be a state statute in place that describes with specificity the particular sexual (or excretory) acts that cannot be depicted. (If the state doesn't have such a statute, federal prosecutors can look to the state's prior caselaw, but this doesn't happen often.) b) Community standards. The depiction of the sexual acts must be "patently offensive" and "appeal to the prurient interest," as judged by a reasonable man applying the standards of the community. c) The escape clause. To be obscene, the material must fail to meet the requirements of the Miller v. California "escape clause." That is, it must lack "serious" literary, artistic, scientific, political, or other social value. (3) CHILD PORNOGRAPHY. This is material that is illegal regardless of whether it is obscene. Which means you don't even bother to ask any questions about "community standards." Under federal law, "child pornography" is any *visual* material that depicts a child either engaging in explicit sexual acts or posing in a "lewd and lascivious" manner, when the manufacture of such material involves the actual use of a real child. Thus, verbal material can't be child porn under federal law, although it could be obscene. Similarly, computer-generated material that seems to depict children engaged in sexual activity but in the manufacture of which no child was used would not be child porn, although it almost certainly would be obscene in every community in this country. In short, this category is defined not primarily in terms of *content* ("offensive" depictions) but in terms of *conduct* (the victimization of actual children). (4) CHILD SEXUAL ABUSE. Sometimes children are abused sexually, yet no one takes any pictures of it. This is not child porn, although of course it is illegal under other statutes in every state in the Union. (5) CHILD SEDUCTION. Sometimes child abusers (see 4 above) will attempt to seduce new victims. They may try to contact such victims via an online service. Note: Despite the commonly repeated claim that pedophiles rely on pornography to seduce children, it is possible to engage in child seduction without ever using pornography, obscenity, or child pornography. Sometimes all the seducer has to do is offer a sympathetic ear or arrange a meeting "just to talk." (6) EXPOSURE TO INAPPROPRIATE MATERIALS. Most states make it illegal to expose minors to sexually explicit material even when such material is otherwise legal (that is, when it's neither obscenity nor child pornography). It is *this* issue that has been the primary subject of the "indecency" legislation (see definition of "indecency" below) that we've seen so much of in Congress this year. (7) "INDECENCY." This is a special term for content that, up to now, has been regulated only in two special areas of federal jurisdiction -- broadcasting and so-called "dial-a-porn" services, both currently under the jurisdiction of the Federal Communications Commission. In those contexts, "indecency" normally means "patently offensive" sexual content or profane language. When you're talking about media that are not under FCC jurisdiction -- newspaper and book publication, say, or the movie industry -- the term "indecency" has no legal meaning. One of the strategies that lobbyists for the Christian Coalition and associated groups have been employing to limit sexual content online has been to ask Congress to expand FCC jurisdiction (and the FCC's definition of "indecency") to cover the Net. in previous columns, I've argued that this would be unconstitutional. With our primer in hand, we can return to Robert Pondiscio's posting above. And once you're clear on the different meanings of the terms and concepts I've outlined here, you don't need a degree in rocket science to note, when reading the national press coverage of the Justice Department announcement, that the FBI raids primarily involve material described in (3) above. Yet the critics of Time's "Cyberporn" cover story have been addressing issues under (1), (2), (5), and (6) -- and primarily as they relate to Time's coverage or to Martin Rimm's fraudulent study. What the critics were saying was a "non-problem" was the Time/Rimm implication that children (and others) were routinely stumbling, unwittingly, across pornographic images, which Time had described as "pervasive." They were also arguing that, despite scary anecdotes about pedophiles e-mailing pornography to children online, it's common for minors to spend years online without ever once encountering a child predator or having any inappropriate material sent to them. It was this argument that Pondiscio transmuted into a claim that child predation in cyberspace is a "non-problem" -- an especially adroit rhetorical move, given that Philip Elmer-DeWitt's story for Time had scarcely even dealt with child predation. And to the extent it did, Elmer-DeWitt himself downplayed the threat: "While groups like the Family Research Council insist that online child molesters represent a clear and present danger, there is no evidence that it is any greater than the thousand other threats children face every day." That consideration aside, no one has ever denied that child sexual abuse is a problem, whether in cyberspace or out of it. And Time's PR department isn't doing anyone any favors by distorting the arguments of Time's critics. What Time could do, if Pondiscio and his employers were interested in correcting the damage done by the "Cyberporn" story, would be to repeat a few basic and irreducible facts that have gotten lost in all the sensationalism -- such as the fact that there's arguably less of a threat to your child online than there is on the corner across from the schoolyard. After all, even the most determined child predator can't reach through the screen and grab my little girl. (For all that Elmer-DeWitt acknowledged that there's little real evidence supporting "a clear and present danger" of child molestation, there's no excuse for Time's irresponsible packaging of the "Cyberporn" story -- it included a cover image of a wide-eyed and horrified child, plus an interior illustration featuring a pedophile luring a preteen by offering a digital lollipop. Or was it an ice-cream cone?) Time could also underscore the fact that The National Center for Missing and Exploited Children has developed some excellent guidelines for parents and children. The NCMEC pamphlet "Child Safety on the Information Superhighway" is available on America Online and just about everywhere else in cyberspace. (On AOL, you'll find it at "Parental control" under the "Members" menu.) If you and your children follow those guidelines, the Net is a far safer place for your children than Disney World. Unfortunately, the Net still isn't a safe place for the Constitution. And that won't change until we solve two problems: First, we've got to teach ourselves to think clearly about the legal issues of online life, regardless of the willingness of antiporn activists and the mainstream media--including Time magazine--to confuse them. Secondly, we've got to remember, come election time, that we need to protect ourselves against the "clear and present danger" of rogue senators who've forgotten the meaning of the Constitution they've sworn to uphold. --Mike Godwin mnemonic at well.com 
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