Crime Out of Mind
To say that Brian Dalton has "issues" is to put it mildly. His own mother calls him "a lonely misfit kid," a 22-year-old high school dropout with a nasty case of attention-deficit disorder and lousy job skills. The tragic topper, though, is Dalton's pedophilia, an obsession that netted him a 1998 child porn conviction for downloading verboten pictures. Despite that legal scrape, he has yet to squelch his truly stomach-churning fantasies, which involve the caging and rape of 10-year-old girls.
Dalton's inner life may be creepynay, repulsivebut is it criminal? He has never acted on his dark impulses, preferring instead to record his icky dreams in a secret journal. But for prosecutors in Columbus, Ohio, those private writings were enough to merit charges under a broad statute that prohibits "any obscene material that has a minor as one of its participants or portrayed observers." Dalton's parents turned the journal over to authorities earlier this summer in hopes that their son would be forced into sex-offender treatment; instead, he received a seven-year prison sentence for daring to commit his inmost thoughts to paper.
The case's uncanny parallels to George Orwell's 1984in which a man is summoned to the "Ministry of Love" for making diary entries deemed too salacioushas spooked civil libertarians, who consider personal logs sacred. "Short of the ability to read minds, I don't know how one could come closer to punishing thought than convicting a man as a felon for the contents of his private diary," says Raymond Vasvari, legal director of the ACLU of Ohio.
But cries of "Won't somebody please think of the children?" have a peculiar way of dulling common sense. Antiporn crusaders, spurred by paranoia over the mind-warping effects of technology, believe mere thoughts should be punished, lest the thinkers someday act on their mental snapshots. The bogeymen of the family-values erareal or imaginedmust be careful about what they write or draw, even behind closed doors.
The Dalton case is groundbreaking in its criminalization of uncirculated text. Until recently, the private ownership of obscene material was constitutionally protected, provided no children were involved in its creation. In a 1969 decision, Stanley v. Georgia, the Supreme Court concluded that "the state may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits. . . . A state has no business telling a man, sitting alone in his own house, what books he may read or films he may watch."
Antiporn activists have since been chipping away at Stanley. They've relied on a long-discredited legal doctrine holding that benign naughtiness inevitably leads to more sinister doings. Known as the "bad tendency" test, the doctrine was used in bygone days to justify the persecution of suspected no-goodniks who wrote tracts praising Sacco and Vanzetti, or discussed the merits of socialism. It was replaced by the familiar "clear and present danger" test, a far tougher standard that requires concrete proof of the link between word and deed.
Yet when it comes to erotic fare, the courts suddenly seem willing to revive bad tendencies. Last year, in City of Erie v. Pap's A.M., the Supreme Court affirmed a municipal statute banning nudie bars on the grounds that such businesses encourage all manner of perversions, from drunken tomfoolery to sexual assault. Critics have termed this viewpoint the "secondary effects" principletoo many strippers in town, and sooner or later the customers will devolve into rapacious felons.
The rationale behind Dalton's prosecution was an extension of that principle. The diary entries were considered the equivalent of a pedophilic gateway drug, bound to lead to actual molestations. Dalton's journal writings were "like making drugs at home, or sawing off your own shotgun, or growing your own marijuana," Bruce Taylor, president of the National Law Center for Children and Families, told NPR last month.
That mind-set terrifies Amy Adler, an NYU law professor who's written extensively on pornography and the First Amendment. "One principle is that you can't criminalize people for having bad thoughts or creating material that will induce others to have bad thoughts," she says. "I think we're beginning to see some corrosion of that principle in our anguish over the crime being committed against children."
These newfangled crimes, preemptive strikes against future incidents that may never occur, are not confined to the realm of pedophiles. The post-Columbine infatuation with "zero tolerance" has spawned an array of on-campus thought crimes. In March, for example, a Bunnell, Florida, fourth-grader was suspended for simply drawing a laser-brandishing stick figurea rendering far less violent than most G.I. Joe fans produced during their grade-school artistic heydays.
David Goldberger, an Ohio State University law professor, cites Dmitry Sklyarov as another victim of the "Keep your thoughts to yourself" attitude, albeit a bit more tangentially. A Russian computer programmer, Sklyarov made the inexcusable faux pas of outsmarting an American corporationhe figured out how to crack the encryption on Adobe eBooks software. While lecturing in Las Vegas this July, Sklyarov was arrested under the controversial Digital Millennium Copyright Act, which forbids the "manufacture [of] products that circumvent copyright safeguards."
"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.
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