- Congress' frequent attempts to squelch debate on sexual free speech issues brought forth another example on March 27, when the U.S. House amended a bill attempting to establish a nationwide "Amber Alert" system to track kidnapped children to add two unconstitutional anti-free speech provisions.
As reported here on March 28, the bill, H.R. 1104, dubbed the "Child Abduction Prevention Act," was amended to include a provision making it a crime to knowingly use an innocent-sounding domain name to direct Internet surfers to a site containing sexually-explicit material or material considered "harmful to minors." One highly publicized example has been www.whitehouse.com, a sexually-oriented site that has a domain name similar to the government site, www.whitehouse.gov.
The penalties for violating the law include both fines and prison terms, with an interesting difference: Directing anyone to an "obscene" site is good for two years in jail, but directing a minor to a "sexually explicit" site that is "harmful to minors" is good for four years in the slammer.
The second amendment to the bill is even more onerous. It would ban the creation and/or possession of "a digital image, computer image or computer-generated image" that is considered, by some unidentified observer, "indistinguishable" from the image of a real minor - almost exactly the issue ruled upon and rejected by the U.S. Supreme Court in last year's Child Pornography Prevention Act case.
The very idea of this amendment to the bill outraged attorney Jeffrey Douglas, Board chair of the Free Speech Coalition.
"The amendment to the Amber Alert bill that would purportedly criminalize possession of simulated child pornography or computer-generated or computer-altered pornography so it appears to be child pornography indistinguishable from a real child is, of course, in complete disregard of established First Amendment law in the United States as reiterated by the United States Supreme Court in Ashcroft v. Free Speech Coalition," Douglas noted. "It is laughably unconstitutional, and consistent with the Republican majority's refusal to accept the rights of people in the Untied States under the First Amendment."
H. Louis Sirkin, the attorney who argued the Free Speech Coalition case before the high court, agreed and saw a more sinister motive on the part of some legislators.
"I just think this is a band-aid attempt again by Congress and makes the congressmen feel real good that they've passed something, and then if it later gets slapped down by the courts, then it's the court's fault," Sirkin analyzed. "The one thing that we did not do in the Free Speech case is, we did not attack the 'morphed' section of the statute because it does have some potential harm to a real child because it's an identifiable child, but for anything that is not real, again, I think everything in Free Speech applies.
"I think what Congress is attempting to do, and what some groups have been attempting to do," he continued, "is to try to grasp onto the dissenting opinion of Justice O'Connor and I think there they're leading themselves astray because they're overemphasizing her terminology. She went for the 'virtually indistinguishable from a prepubescent' [concept] and that really ignores and overlooks what the real problem was, which the majority really clearly said: You can't make something a crime that isn't a crime. And I think they're going to run afoul again with it if in fact that's what they do."
Sirkin noted that ACLU attorney Marjorie Heins has had "tremendous success in some attacks on 'harmful to minors' statutes," and that he and New York attorney Mike Bamburger had successfully defeated a 20-year-old Ohio statute which defined "harmful to minors" in such a vague manner that rather than fight the issue in federal court, the Ohio legislature decided simply to rewrite the law.
"It's a kneejerk reaction," Sirkin said, of the childless 'child porn' law. "It's not thought out, and I don't even think that Congress and most of these people that are drafting these things are giving any consideration to whether they're constitutional or not. They believe that they can create a pain in the ass to somebody; they can take some innocent people and put them through the horrendous draconian processes for their thoughts, and people will end up pleading guilty because they're scared to death they'll be labeled sexual offenders, and everybody will be happy because we're fulfilling the vigilantes' call to right the world."
