- Conclusions Based on Observation
In January 1995, a long child pornography case finally ended. Knox v. United States had bounced from the District Court of Pennsylvania to an Appeals Court to the Supreme Court and back again to the Third Circuit Court of Appeals, after which the Supreme Court refused to hear it again. The vicissitudes of the case magnified Knox into a national debate over child pornography. By the time it had ended, Knox had altered First Amendment free speech law, enflamed public opinion, pitted virtually the entire Congress against the Justice Depart ment, and launched child pornography into the 1994 Republican “Contract With America” alongside issues such as welfare and the national deficit. Meanwhile, Knox let images of children, and potentially all images, slip from the category of “speech” protected by the First Amendment into the unprotected category of “action.”
Childhood has become sacrosanct. Americans place a high value on child hood not only because we care about how actual adults treat actual children, but also because we freight childhood so heavily with ideals. Once upon a time, the values of innocence, purity, and nature could be variously located. Now we only seem able to find them in what we imagine to be the beleaguered bastion of childhood. If natural pure innocence is equated with a complete absence of sexuality—as it commonly is now in the United States—then sexual abuse of children violates the ultimate social taboo. From there it takes one step to blame child pornography. And one step more to censorship. Two dangerous steps.
Our current cultural climate made Knox an accident waiting to happen. Scandalous Calvin Klein ads and FBI stings of Internet offenders are only the latest manifestations of a growing national obsession with images of children. For years, Americans have been becoming increasingly sure that they can and should interpret images of children, distinguish right images from wrong images, and punish offenders. In every case, this certainty is fueled by the assumption that images bridge reality and representation, and that therefore actual children will be protected by the censorship of images. Kathryn Har rison’s 1993 novel Exposure, for instance, warned that photography can damage real children both physically and psychologically. The novel spins a story of an abusive father-photographer whose invasive image-making nearly kills his daughter and leaves her on the verge of insanity. The book became a best-seller [End Page 1] and its many reviews extended the messages of its narrative, explicitly linking Exposure’s fiction to actual photographers, most often to Sally Mann, a controversial contemporary young artist who uses her own three children as models.
Photography, of course, is the problem. Child pornography cases now always turn out to be photography cases. The impulse to censor images of children in order to protect actual children depends entirely on a belief in photography’s realism. To be convinced by photography’s realism, in turn, requires certainty about some difficult questions. Are photographs poised exactly on a boundary between reality and representation? To what extent do photographs belong to the realm of the imaginary, and to what extent do they record events or persons? Can we know what a photograph “really” represents?1 These ques tions are old and basic; though exacerbated by the medium of photography, they apply to any work of art, visual or verbal; they could be, and have been, debated in modes ranging from the philosophical to the practical. So far, however, these basic questions have not been part of a debate called child pornography.
Child pornography became an issue only recently. Not until 1984 was child pornography legally distinguished from other pornography and defined accord ing to a stricter standard. This first 1984 child pornography law mandated the prosecution of anyone engaged in the “lascivious exhibition of genitals.” The “factors” which make an image of a child illegal in this country now include: “whether focal point of visual depiction was on minor’s genitalia or pubic area, whether setting of visual depiction was sexually suggestive, whether minor was depicted in unnatural pose or in inappropriate attire considering his age, whether child was fully or partially clothed or nude...