By Thomas G. West, Katherine McGinnis Posted April 23, 2002

Lovers of art and literature can breathe a collective sigh of relief. Yes, the Supreme Court has reaffirmed that there is a constitutional right to portray children engaging in explicit sex acts — as long as the pictures are not of actual children.

In the eyes of the Court, the yokels in Congress just don't get it.

Congress enacted the 1996 Child Pornography Prevention Act ("CPPA") to prevent injury to kids caused by the commercial trade of computer-generated pictures (termed "virtual child pornography"). These pictures are indistinguishable from actual pictures of child pornography.

But Justice Anthony Kennedy, who wrote the opinion of the Court in Ashcroft v. Free Speech Coalition (decided April 16), seems to think that the CPPA is really an attack on — Shakespeare!

True, Kennedy admits, Shakespeare "may not have written sexually explicit scenes" of children copulating. But, he notes, modern directors sometimes "adopt a less conventional approach."

If Shakespeare were around today, he might wonder why banning pornography, which was never in his plays to begin with, somehow means banning Shakespeare.

Of course, Kennedy's rhetoric is nothing but bluster. No one, during the 150-plus years when obscenity really was against the law in America, ever banned Shakespeare anywhere in America.

After the Supreme Court redefined obscenity after 1950, hardly any barriers remained to the most degrading portrayals of whatever anyone wanted. The trash that now pollutes every corner of our land — from rap to movies to cable TV — has nothing to do with high art.

Yet in the Ashcroft case, all nine members of the Court — every liberal and every "conservative" — reaffirmed the Court's stance that most porn is "speech," sheltered by the First Amendment.

But we must ask: Was the Supreme Court right to define obscenity practically out of existence a half century ago?

According to the Declaration of Independence, the purpose of government is to protect the citizen's rights to life, liberty, and the pursuit of happiness. That means protecting people against injury.

The Founders therefore thought that citizens should be held accountable for any speech that could be proven in court to be injurious (such as personal libel). But the Founders also banned speech that injures society more generally — by injuring its moral foundations.

James Wilson, author of the free speech clause of the Pennsylvania Constitution of 1791, wrote, "Indecency, public and grossly scandalous, may well be considered as a species of common nuisance." Such nuisances, he said, "annoy the citizens generally" such that "public peace, and order, and tranquillity, and safety require them to be punished or abated."

Such nuisances, wrote Wilson, are like keeping hogs in a city or running a whorehouse.

In the founding era, no one would have doubted that public indecency includes pictures of children engaging in sex. But we today seem to have forgotten why.

Here is how the Founders explained it. (Supreme Court Justices, are you listening?)

George Washington's Farewell Address: "'Tis substantially true, that virtue or morality is a necessary spring of popular government."

Congress's Northwest Ordinance, 1787: "religion, morality, and knowledge, being necessary to good government and the happiness of mankind."

Pennsylvania Constitution, 1776: "Laws for the encouragement of virtue, and prevention of vice and immorality, shall be made and constantly kept in force."

But why is morality so important? If the purpose of government is to protect the citizens against injury, the most obvious means is to punish murderers, rapists, and robbers.

But the Founders knew that threats of punishment are not enough, especially in a free society. Respect for the rights of others requires citizens who not only fear the law, but have a conscience. They must believe that self-restraint is good. They must be able to restrain their predatory passions. Therefore, government must promote virtue.

Many today dismiss the theory of the founding as antiquated Puritanism. Butwe ask: What are the consequences of today's view of free speech? When Congress passed the CPPA, it found 13 ways in which virtual child pornography indirectly leads to actual children being victimized.

For example, "child pornography is often used as part of a method of seducing other children into sexual activity." It "is often used by pedophiles and child sexual abusers to stimulate and whet their own sexual appetites." "Prohibitions against the distribution and possession of child pornography involving real children could become unenforceable."

The Court dismisses these claims. Pornography does not always lead to crime, it says. That is true. But why allow commerce in things that, though indirectly, cause harm to real children?  Maintaining a moral society protects the natural rights of all citizens, including children.

Yes, we are unashamedly and openly advocating overturning over a half-century of Supreme Court precedent.  All in the name of that antiquated document, the Constitution.