We should be worried about the Adverse Secondary Effects of making child porn illegal.

A few days ago, I brought you this post about a cop who got busted for filming the perfectly legal (in Texas) act of having sex with a dog. In it, I hinted that he also got tapped for possession of child porn, and that this was a rant for another day.

Welcome to that rant.

Unsheathe your rage. I am going to make the case for legalization of child pornography – or at least to argue against long-standing beliefs about why possession of it should be illegal.

I am not talking about production. If you actually make child porn, I think our laws are not harsh enough. Producers of actual child porn should not only go to prison, but should be put into a special kind of hell space, where they beg for death for the entirety of their sentences.

But, lets talk about mere possession.

Prior to 1982, child pornography was not categorically outside First Amendment protection. In order to be convicted of an chid porn offense, the porn had to also be "obscene" under Miller v. California.

Miller v. California allows a conviction for obscenity, so long as the state can prove three elements:

Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law, Whether the work, taken as a whole, lacks serious literary and/or artistic, political, or scientific value.

Most juries would likely say that any child porn would fit that test.

"Prurient interest" generally means "an appeal to a morbid, degrading, and unhealthy interest in sex." Pretty much anything a normal person would think of as "child porn" would fit that description. Patently offensive? That too. Serious value? Well, that will save Nabakov, but not what we all know we're talking about when it comes to "child porn."

In other words, with Miller, we already had enough ammunition to go after child porn. But, in 1982, along came New York v. Ferber, 458 U.S. 747 (1982). In that case, the Supreme Court held that states could ban the sale of child porn, even if it was not "obscene" as defined by Miller. It simply created a new category of unprotected expression.

And who wants to argue against that?

For most of my career, I took the "what's the big deal" approach to Ferber. After all, who cares about some child pornographer?

I am starting to think I was wrong.

Constitutional rights are like a nice spicy soppressata. You slice off one piece of it. Just a nibble. But, then you've got that exposed end. And, you've got a taste for it. And then another slice. And another. And it doesn't take long until you've eaten the whole thing. (Ok, the analogy breaks down because soppressata is meant to be eaten… but you get my point)

That first slice made the rest of the soppressata irresistible.

Ferber explained that if we ban the commercial market for child porn, we dry up the incentive to produce it. Sort of like banning ivory is supposed to stop us from killing endangered elephants.

Ferber left the question of possession open, and it seemed that someone could still possess it, in the privacy of their home. After all, we had Stanley v. Georgia, 394 U.S. 557 (U.S. 1969) and its inspiring pronouncement of what freedom means.

If the First Amendment means anything, it means that a state has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds. Id. at 558.

However, Stanley struck down a statute where the justification was to, paternalistically, protect the viewer.

The rationale for the regulation was that you, Jane Q. Citizen, could not watch an obscene movie without it seeping into your mind and destroying it. While Stanley threw that out, that theory persists — even for non obscene content — in the minds of those who want to control what you can read, see, and hear. See PORN! PORN! PORN! WEB PAGES OF DEATH! and see a debate at Mimesis Law where Chris Seaton argues to make all porn illegal, and Mario Machado argues against it.

Therefore, after Ferber, we had a quandary. Everyone hates child porn. But, how to could we justify banning the mere possession of it? Enter Osborne v. Ohio, 495 U.S. 103 (U.S. 1990) which sliced off another piece of that soppressata. The court held:

Ohio does not rely on a paternalistic interest in regulating Osborne's mind, but has enacted its law on the basis of its compelling interests in protecting the physical and psychological well-being of minors and in destroying the market for the exploitative use of children by penalizing those who possess and view the offending materials. See New York v. Ferber, 458 U.S. 747, 756-758, 761-762. Moreover, Ohio's ban encourages possessors to destroy such materials, which permanently record the victim's abuse and thus may haunt him for years to come and which, available evidence suggests, may be used by pedophiles to seduce other children.

Osborne, relying on Ferber's market-effect justifications, sliced off just a little bit more of the First Amendment. Child porn is bad. Therefore, if it is illegal to even have it, much less produce it, we will dry up the market even more.

Sure, you and me weren't using that piece of the Constitution anyhow, so who cares?

Well, are you sure?

Child porn is not limited to depictions of child abuse. Prosecutors have gone after innocent content like baby pictures. I personally have slapped my wife's camera out of her hands as she readied herself to take a picture of one of our kids in the tub. Why? Because I know that the day may come that some prosecutor decides that he wants to shut my ass up – and what better way than to drag me through the streets, accused of possessing and creating child porn? Sure, it is just a wee baby picture. And maybe that's how the jury would see it too. But, I'm never taking that chance. Baby pictures must be clothed in my house.

Lets look at the other (seemingly reasonable) Osborne justifications.

It seems a reasonable argument that if someone actually abuses a child on film, that child gets re-victimized, to some extent, each time someone looks at that picture. I think there are good logical arguments against that, but I'll buy it. So why not remedy that with civil claims? I myself have brought cases on behalf of child porn victims. In one, I and secured a $385,000 judgment against the scumbags who published it. In others, we had less public resolutions, but we felt justice was done. Civil remedies do not present the same constitutional fears as criminal remedies (for example, criminal libel statutes vs. civil remedies for libel).

If we remove that justification as otherwise-provided-for, what is left?

Pedophiles might use existing child porn to seduce other children? Well, then lets ban vans and candy. Done.

So we are back to the Ferber market-draining analysis.

Since 1982, that has hardly done much except drive the market underground and create an insane "market" in wildly illogical sentences and prosecutions. As one example, we have this guy who was having perfectly-legal-sex with a 17 year old, who posed for pics for him. He got 15 years for that. Fifteen years for taking a photo of a girl that he could, without any state interference, have sex with. In others, teenagers sexting each other have wound up on the sex offender list for life. When a law can be used irrationally, it will be. And this has.

But that's not the only place where Ferber raises concern. You see, the really scary thing about Ferber is that its logic dangles out there like so much irresistible bait to the would-be-censors. In United States v. Stevens, for example, the government tried to ban depictions of animal cruelty. Why? In large part, relying on the Ferber logic of a) animal cruelty is bad, b) people watching videos of animal cruelty is bad, c) if nobody can sell or buy the videos, it will dry up the market for animal cruelty.

I get it. Nobody wants to be the one to say "hey, maybe child porn ought to be legal." I expect to have this very post used against me in the future.

But, think beyond the nightmare scenario. Think about your stash of baby pictures, and how those could get you tossed in jail with a lifetime on the sex offender list. Think about your 17 year old son with pictures of his 17 year old girlfriend winding up in jail and on the sex offender list for life. Think about the irrationality of how the law is already being used.

Then think about how the infection we picked up in Ferber could spread.

Find the most censorious ass-hat you can think of. Think of Katherine MacKinnon or Gail Dines arguing that "porn makes people think less of women, thus as a matter of drying up the market for porn, it should be illegal." Or, imagine Donald Trump's administration saying that "this specific expression creates a market for Islamic extremism."

Don't we want to "dry up the market" for sexism or terrorism? Who wants to argue against that?

Imagine anyone prepared to deem a thought "dangerous" and then taking a knife to our soppressata. Imagine banning Mein Kampf or The Adventures of Huckleberry Finn, because we want to "dry up the market for racism." How about banning Fight Club or A Clockwork Orange because we want to "dry up the market for violence."

How about abortion?

You think that's far fetched? Guess what? 18 U.S.C. § 1462(c) already bans talking about abortion. Sure, no prosecutor has been dumb-enough to try and bring any charges under that section, but what about if Trump gets impeached and President Pence has that weapon in his hand? Is prevention of child abuse any less grave than "preventing the killing of the unborn?"

I once said "go ahead and take child porn, who cares about that anyway?" But, I now think that was a cowardly position.

If we slice off pieces of the Constitution, just because it makes our stomach turn, we've caught a constitutional infection.

I think that it is time for us to re-think Ferber or at least Osborne. In doing that, yes, we might make it legal for some creep to have a shoebox full of child porn images. But, that is a small price to pay to exorcise the infection we have been carrying around since 1982.

Edited to add: Ken has a partial dissent.

Marc Randazza is the national president of the First Amendment Lawyers Association

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