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"I think there's certainly a willingness to exaggerate harms, or a tendency to exaggerate harms, with the result that the products of individual thoughts become targets for prosecution," says Goldberger, who tried the infamous Skokie neo-Nazi case for the ACLU.
Pornography remains the most obvious battleground, and it is a legal tussle over a federal anti-obscenity law, the Child Pornography Prevention Act (CPPA), that will determine whether the thought-crime fad waxes or wanes. The CPPA, passed by Congress in 1996, bans the creation or possession of "virtual" kiddie porn, particularly computer-fabricated images that depict young-looking figures in sexual situations. Merely sketching out some naughty caricatures on one's PC could be enough to merit prosecution, if local authorities judge the drawings contrary to community standards.
Loath to seem supportive of pedophiles, few civil-rights types have vocally opposed the CPPA's criminalization of make-believe. Filling the activist vacuum, however, has been another outcast cliqueadult entertainers. Last year the industry's primary trade group, the Free Speech Coalition, convinced the Ninth Circuit Court of Appeals to void a portion of the CPPA as unconstitutional. The Justice Department appealed, and the Supreme Court will hear the case in mid autumn.
Conservative groups such as the Family Research Council argue that the CPPA's ban on synthetic images is crucial to public safety, since such counterfeit pictures "have the same incitement effect on pedophiles to molest children, and the same seductive effect on children to become victims," as authentic pornography.
Louis H. Sirkin, the Free Speech Coalition's lead counsel on the case, scoffs at that assertion as a feeble attempt to legitimize secondary effects. "The people in support of the CPPA say a pedophile might take that drawing and show it to a child and say, 'See how much fun this is?' " says Sirkin, who also defended photographer Robert Mapplethorpe during his landmark obscenity fight with Cincinnati. "Well, I could also show a portion of West Side Story to a child and say, 'See how much fun it is to be in a gang?' "
If the Supreme Court should overturn the Ninth Circuit's decision, Sirkin dreads a chilling level of government meddling. "You can carry the concept to extremes and say it's unhealthy for teenagers to see a virtual murder, that it's unhealthy for them to watch something like The Godfather or Pulp Fiction," he says.
One potentially dicey case is that of American Beauty, in which actress Mena Suvari bares her chest while playing an underaged temptress. That Suvari was over 18 could be immaterialthe filmmaker's intent to depict a naked high schooler would be all that mattered. Even had director Sam Mendes made the movie on his bedroom Macintosh, using nothing but computer-generated figures, and shown it to no one, he might still face criminal charges. All it would take is an ambitious prosecutor hankering for publicity.
A Free Speech Coalition victory, on the other hand, would strike against the notion of secondary effects, and make it far easier for civil libertarians to challenge statutes similar to Ohio's. Dalton's parents, guilt-ridden over their well-intentioned betrayal, hope their son will get a shot at treatment in lieu of jail. But Dalton's chances of leaving state custody before 2008 seem slim. As part of his plea agreement, he waived his right to an appeal; he was afraid that his perversions would be publicized at trial, thereby embarrassing his family. His attorney has filed a request to change his plea to no contest, but such motions are rarely granted.
The sad irony of Dalton's predicament is that, if placed in treatment rather than prison, he likely would have been encouraged to confront his demons in writing. As writer Joe Loya noted in a Los Angeles Times op-ed on the case, "To write out fantasies in order to avoid creating real victims is therapy, not pornography." Ohio's message to the sick is clear, and troubling: Bottle up your wicked thoughts, or risk hearing a knock on your door.
Brendan I. Koerner is a Markle Fellow at the New America Foundation.