Child pornography (which is pictures of children performing sex acts) is the one kind of pornography that is noncontroversial in polite circles. When this subject is brought up in debate or discussion, most people agree that it should be prohibited.
It wasn’t always thus. A few years ago, some people quite openly argued, despite the laws against child pornography, that the First Amendment was broad enough to clothe the pimps who persuaded children to model in sex acts. Then came New York v. Ferber, the U.S. Supreme Court decision of 1982, which firmly established the principle that there can be no constitutional protection for child pornography.
This decision upheld the constitutionality of the laws in half the states. Most of the other states have since acted to toughen their laws in line with the Ferber decision. Likewise, Congress almost unanimously passed the Child Protection Act, signed by President Reagan in 1984, which strengthened federal laws as far as the Ferber decision allowed.
What made Ferber different from other Supreme Court pornography decisions is the rule that child pornography is illegal per se and can be punished even though it does not meet the Court’s definition of obscenity. Prosecutors need prove only that the child who is photographed performing a sex act is under age 18.
The Supreme Court gave two reasons for making all child pornography illegal. First, child pornography is always produced without the informed consent of the person being photographed; that person is unable to give consent because he or she is a minor.
Second, child pornography, once produced, is a tool that child molesters use in the seduction of other children. Abundant evidence proves that pedophiles do not use violence toward their victims; they instead use pictures of other children performing sex acts in order to persuade their victims to perform sex willingly.
The decision and laws against child pornography were fought vigorously by St. Martin’s Press in New York, which is the publisher of a 1975 book of child pornography called Show Me! by Fleischhauer-Hardt and McBride. This book is clearly illegal under the new anti-pornography laws and the Ferber decision because it contains numerous larger-than-life-size photographs of young children performing a variety of sex acts too explicit to describe in this column. The publisher lost the case and ceased publication.
FBI Special Agent Kenneth Lanning called Show Me! “the single item most commonly found in the possession of pedophiles in the United States.” A New York postal inspector described it at the Attorney General’s Pornography Commission hearing by saying, “That’s like their [the pedophiles’] Bible.”
After Ferber upheld the New York state law, the publisher testified at a hearing of the U.S. Senate Juvenile Justice Subcommittee. He admitted that the children photographed in his book were under age 16, but he tried to persuade Congress to allow him to continue marketing the book in states which had not yet legislated the Ferber standard.
The Show Me! publisher lost again, and Congress passed the Child Protection Act of 1984 which follows Ferber guidelines. Show Me! became illegal to sell, distribute, or receive throughout the United States, and bookstores were so informed.
Show Me! is no longer blatantly advertised next to standard pornographic fare in pornographic magazines such as Hustler and Chic, and no longer sold openly in porn shops where it was previously a best-selling item. Show Me! and other child pornography is no longer an over-the-counter sales item, and has been relegated to the black market.
But that’s not the end of the story. Although Show Me! cannot be sold legally anywhere in the country, it is still available for the asking in some public libraries. The American Library Association and many of its members have the peculiar attitude that libraries should be exempt from the pornography laws that apply to everyone else.
In many states, the American Library Association has even lobbied state legislators to include a specific exemption for libraries from the anti-pornography laws. Librarians want a unique right to evade anti-pornography laws.
Public libraries are maintained with taxpayers’ money and they should be subject to the ultimate supervision of the taxpaying public. Check your local public library and find out whether it is obeying the laws against child pornography.
