Perhaps unsurprisingly, the new federal Amber Alert law's inclusion of a new ban on virtual child porn has Free Speech Coalition - which fought the original ban in the Child Pornography Protection Act and won in the Supreme Court last year - pondering whether to fight a similar court battle involving the new ban.
The issue will be discussed at the next FSC board meeting, according to chairman Bill Lyon, who said the new virtual child porn ban goes "way beyond what the Supreme Court allowed" when it struck down the former Child Pornography Protection Act.
And Lyon is mindful enough that there will still be those who take another FSC court battle against another virtual child porn ban as equal to FSC applauding child porn. But he said FSC remains concerned that, aside from the issue of virtual versus actual child porn- "If there's no child, there's no sexual child abuse, so how can there be child pornography?" he said about virtual child porn - the government could use this law to prosecute any kind of writing about any matter of sexuality or other "dangerous" issues related to the young.
"We don't support child porn," he emphasized. "People can accuse you of anything, but that doesn't mean that it's the case. We have done plenty to make it known that we oppose child pornography, but people can say whatever they want. The thing we are going after is the unconstitutionality of the government's approach. The government always likes to exercise more and more power over the people, it's just part of the beast. And we have to let them know that citizens of the United States still want to protect their choice on what to read or what to discuss."
Lyon said the new ban's shifting the burden of proof to the accused rather than the accuser "stands the Constitution on its head, (which) is typical of so many things that (President) Bush and (Attorney General John) Ashcroft have tried to do."
Adult Sites Against Child Pornography executive director Joan Irvine had said earlier that a virtual child porn ban is on whole a good thing, but she remained mindful of both the potential for government abuse and First Amendment interference.
“(We) hope that government agencies will use this new law to apprehend the real criminals and not use it as an excuse to investigate legitimate adult companies," Irvine said. "However, there are certain sections of this bill that go beyond the scope of child protection and could interfere with First Amendment rights."
Lyon said the new virtual child porn ban - added as an amendment to the Amber Alert law augmenting warning and information swapping in cases of child abduction - essentially puts things "right back to the situation before," when the former Child Pornography Protection Act "tried to criminalize any kind of thought regarding sexual activity of people under 18."
The new version, he said, puts more emphasis on the actual harm done to prepubescent children, "but it certainly cannot go so far as to try to make people guilty before they are proven guilty, or to try to make an individual accused prove his innocence, and they certainly cannot be put in position to pick and choose what they think in term of what with the world of art represents child porn."
The new Amber Alert law also includes an amendment that made it a federal offense to lure unwitting people to adult Websites by way of fake "from" or "subject" lines in e-mails, fake e-mail message and image text, and Internet domain names which suggest anything except adult Websites. Lyon said he thought that could have made it as a law separate from the Amber Alert bill.
"I don't think that this is something bad," he said of the fake-to-porn rule. "None of our members that I know of are involved in spamming. And we are opposed to spamming as an industry…. Our members, all the members that I know of who are involved in this, use a double opt out system so the individual receiving the e-mail have to agree twice that they want to receive."
Earlier this week, Virginia's governor signed into law a ban on fake "from" or "subject" lines or message texts in spam messages, and allows for the guilty parties to lose their business operations as a result. Jurisdictional questions aside, Lyon said that new law could be a model that will be taken up in coming federal legislation aimed at spam, porn and otherwise.
"The whole point of that law is that they put some teeth in it as far as confiscation is concerned," he said. "Unfortunately, there are some individuals on the Internet who have said paying fines is just the cost of doing business; well, this law says we'll just take your whole business."
Lyon had no problem distinguishing the fake domain names from the fake spam lines - to him, fake domain names are as good as spam. "It's an obvious attempt to send something to people who didn't request it," he said. "As far as I'm concerned, that's spam. Our members are proud of their sites; they don't try to hide what they are. It's for adults, intended for adults, we don't want kids to get it, we don't want people who don't want it to get it.
"(Our members) are legitimate businesses," he continued. "They have a right to offer, and people have a right to buy or not to buy. We certainly are not trying to inflict our products on people who don't want them. Unlike the religious right, which is trying to inflict its product on everyone."
