Having Solved Piracy, Time for Child Porn!

When I teach Internet Law, I joke that banning child pornography is straightforward since there isn’t a pro-kid porn lobby (unlike, say, banning copyright infringement or adult pornography). I stand corrected: Rick Falvinge, founder of Sweden’s Pirate Party, has taken up the pro-legalization cause. (Interesting choice as a policy focus, but to each their own.)

Falkvinge’s reasoning is lengthy and somewhat belabored (translation undoubtedly plays a role), but since he uses censorship as a justification for his position, and because child porn seems like a natural target for a ban, I thought I’d point up the errors in his argument.

Falkvinge advances four reasons for his pro-legalization stance: bans do not help in catching child molesters; they lead to censorship without accountability; they interfere with journalism; and they undermine free speech norms in a way that leads to collateral censorship.

Falkvinge’s first argument seems theoretically interesting as an empirical matter, but he quickly goes off the deep end. First, he claims that with Google Glasses, if you’re walking through a park recording what you see, and you happen to witness a child being raped, you’re now in possession of child pornography. I know nothing about Swedish law, but Falkvinge claims that in the U.S., you’d be at risk of prosecution. This shows Falkvinge should stick to illegal downloading, because that’s simply wrong. Federal statutes require possession with intent to distribute (18 U.S.C. 1466A); possession of material that has been transported by means of the mails or interstate communication facilities (18 U.S.C. 2252); or some combination of the two (18 U.S.C. 2252A).

State laws vary. Arizona has some of the strictest in the country. Even here, the mens rea requirement does a lot of the necessary work. (Falkvinge wrongly claims these are strict liability laws. As 1Ls know, if there is a mens rea element to the offense, it’s not strict liability.) Arizona Rev. Stat. 13-3553 imposes liability for knowing possession of a visual depiction “in which a minor is engaged in exploitive exhibition or sexual conduct.” (13-3551 defines “exploitive exhibition” and “sexual conduct.”) The key is “knowing.” Most people, seeing the scene Falkvinge describes, are going to find / phone the police first, and think about their Google Glasses second. That means that, even if they possess child pornography, it’s not “knowing” even under the strict Arizona statute. Now, if you go home and keep the images / film, you’re at risk – but that’s a good thing. We don’t want people possessing child porn that they stumble upon – we want them to turn it over to the police.

Child porn laws run some risk of being overbroad in practice. Congressional representative¬†and idiot Doug Lamborn of Colorado had Capitol police question environmental activist Maria Gunnoe over a photo of a five-year-old bathing in polluted water from a mining operation. This is politicization of child abuse by a sockpuppet for the mining industry, and it’s a problem. But Gunnoe wasn’t charged. Law operates in part based on sensible practices by prosecutors, and based on the check of a jury on non-sensible prosecutors. If you realize you have evidence of child rape on your Google Glasses and need an espresso to calm down before you go to the police, you’re not at risk in a practical sense.

Falkvinge also claims we’re OK with videos of people getting killed by screwdriver, but not by child porn. I am not sure why this doesn’t point to a need for more censorship, not less. And, there may still be room for banning this type of video even after U.S. v. Stevens, if the legislation were sufficiently narrow.

So, second reason: censorship. This seemed interesting, but here Falkvinge focuses on teenagers who like to engage in activities like sexting and seeing their chronological peers naked in digital form. Sexting is a genuine problem. The best proposal I’ve read is to mimic the “Romeo and Juliet” exceptions some states implement in statutory rape laws. (Example: Texas Penal Code 22.011(e).) So, overbreadth is problematic here, too, but we don’t want to be too worried about it. If Juliet has a nude photo of her boyfriend Romeo, most prosecutors won’t go after her – but, if she sends the photo to Tybalt, they should. So Falkvinge identifies a problem, but it’s not nearly as grave as he argues. Moreover, we know how to fix it.

The third reason (which seems to combine Falkvinge’s last two arguments – the organization is his, not mine) is that child pornography threatens to overwhelm free speech. This is just classic slippery slope hyperbole. The U.S. has pretty robust free speech (as our current Presidential campaign, or the debate over gay marriage, demonstrate). So does the U.K. – and that country censors child porn via Internet filtering, not just law.

My sense is that Falkvinge doesn’t think any speech should be illegal. That’s an understandable view, but it is an exceedingly minority one. Hate speech, copyright infringement, blasphemy, flag burning, pornography – most people have something they want off limits.

Moreover, there are some compelling arguments for a ban on child pornography that Falkvinge simply ignores. First, the possession and distribution of child porn works an ongoing injury to the exploited child. While bans will not be perfect, they reduce the amount of child abuse material in circulation, and presumably give some pause to potential possessors / distributors. Second, possession charges can be used to go after those who create and distribute the material. Plea bargaining is a powerful tool. Third, society can express its strong disapprobation of this content by banning it – and, in the U.S., such a ban is consonant with the constitution. Fourth, Congress found (during hearings on the law banning virtual child porn) that child pornography may move some people from passive consumers to active abusers of children. Possession might prevent that transition. Finally, we can minimize overbreadth and slippery slope problems through careful legislative drafting and checks on prosecutorial excess. The Supreme Court invalidated a ban on virtual child pornography, and organizations such as the ACLU have represented teenage sexters.

My sense is that Falkvinge is something of a lunatic fringe, and his arguments on child porn bear out that impression. But he’s using concerns about censorship as a cover for a far more problematic agenda, and the Pirate Party is sometimes the darling of the cyber-left. Even copyright infringers should be wary of a politician whose platform seeks to legalize child porn on the strength of such threadbare arguments.

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