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American Morning

First Amendment Attorney, Senator Discuss Child Porn Laws

Aired May 02, 2002 - 08:13   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
PAULA ZAHN, CNN ANCHOR: In Washington, lawmakers are trying to rewrite a ban on virtual child pornography that was struck down by the Supreme Court last month. You might remember that the high court ruled that banning virtual or simulated teen sex was too broad and unconstitutional.

Attorney General John Ashcroft has thrown his support behind the new congressional measure, saying it offers further protection for kids against sexual predators.

(BEGIN VIDEO CLIP)

JOHN ASHCROFT, ATTORNEY GENERAL: The Department of Justice remains rock solid in its commitment to identify, investigate and prosecute those who sexually exploit children, regardless of the difficulty involved in the prosecuting effort. But we cannot and will not remain silent as obstacles to these prosecutions grow.

(END VIDEO CLIP)

ZAHN: And joining us now from Washington, Alabama Sen. Jeff Sessions, one of the sponsors of the new legislation. And here in New York, renowned First Amendment attorney Floyd Abrams, father of another TV newscaster on another network. That's OK, he's not up against this time bloc.

FLOYD ABRAMS, FIRST AMENDMENT ATTORNEY: I won't mention his name.

ZAHN: Good morning to both of you. Welcome.

SEN. JEFF SESSIONS (R), ALABAMA: Good morning.

ZAHN: Sen. Sessions, your bill calls for tightening some of the definitions of child pornography. How would that work and how will that stand up to constitutional challenges?

SESSIONS: The Supreme Court last month in April struck down the virtual pornography language. Some of that probably was a bit broad. The attorney general and his staff have worked hard to restrict that language sufficiently to meet constitutional muster.

It's just important, Paula, because I believe there's a direct connection between those people who obsess on child pornography, which is an unusual thing for people to focus on, and actual child molestation, rape and even kidnapping and killing of children. They have a history consistently of this kind of behavior. I've seen it personally as a prosecutor.

It's just not a matter of looking at dirty pictures, it's a matter of some people have certain predispositions that if fed by pornography can lead them to actual acts of sexual predator, predator acts.

ZAHN: Well, let's talk a little bit more about exactly what your piece of legislation would do. Representative Mark Foley, who sponsored legislation with you, described it like this. Let's listen.

(BEGIN VIDEO CLIP)

REP. MARK FOLEY (R), FLORIDA: This legislation is a pedophile's worst nightmare. It virtually guarantees we're helping to protect America's children. It doesn't make a difference if the child engaged in sex is real or virtual.

(END VIDEO CLIP)

ZAHN: Sen. Sessions, what is your colleague talking about here in terms of guarantees? What does that mean?

SESSIONS: Well, the Supreme Court has indicated that if it's not a child in actual acts of pornography then it can't be so easily controlled. We virtually eliminated child pornography because the Supreme Court said if actual children were used, that in itself is a crime and can be flatly prohibited. That virtually eliminated child pornography from our stores.

But now, with the Internet and virtual capability, defendants are saying well, we didn't know. We thought it was a virtual reality and not an actual child, and that this provides a defense that the 1996 act was designed to end. But now that act has been struck down. So we need to get back to the drawing board, see if we can work with the proposed language of the attorney general and pass a statute that will help us deal with a very real problem.

ZAHN: Floyd, will this stand up, based on what you know about this legislation, to a constitutional challenge?

ABRAMS: I don't think so. I mean I think we have to bear in mind that the core of the Supreme Court opinion was saying look, this is not obscene. If this is obscene, people go to jail for putting it out. We're not talking about obscene work. And we're not talking about materials with live children. If it had, you could go to jail for that.

What the court said is that if you don't have live children and if it's not obscene, then it is at least presumptively protected by the First Amendment. And I don't see any way Congress can get around that. It's a constitutional ruling. It's a First Amendment ruling. It's designed to protect not just this awful stuff, which we do protect -- we protect a lot of bad stuff -- but to protect all the good stuff, all the good stuff, which may contain pictures which are erotic in nature of under age people.

"Romeo and Juliet," a movie made a few years ago, was cited by the U.S. Supreme Court, the Shakespeare play, but made into a more modern movie. And the court said who's to say? Under what Congress has done, that can be, lead to criminal prosecution.

ZAHN: Well, do you personally have a problem with this virtual stuff?

ABRAMS: Well, of course.

ZAHN: Yes, well...

ABRAMS: With the stuff, it's terrible. It's ugly and it's despicable. But, you know, we protect a lot of bad stuff. Justice Holmes said we protect the stuff that we hate. And so we do. And why do we do it? We do it because we don't want to sort of march down the road of punishing bad thoughts, bad ideas, bad tendencies. That's not allowed under our system.

ZAHN: Do you support any restrictions of any kind that would limit the amount of this material online? As you know, the FBI is looking at thousands of these cases where they truly believe this has led to crimes being committed.

ABRAMS: Well, what the Supreme Court said was that there was certainly insufficient evidence of that, that child pornography leads to criminal conduct. And as a general proposition, again, awful as this stuff is, and despicable as it is, we don't allow punishment of speech because it could lead people to do bad things. It has to immediately lead them to do it, and it doesn't, so far as we know. And that's one of the reasons why the court -- you know, this is a very conservative court. Why is this court saying this is protected? It's not because they like it any more than I like it. What they're saying is we have to protect free speech in a free society.

ZAHN: Sen. Sessions, you get the last word on how the First Amendment plays into all of this.

SESSIONS: Well, the First Amendment protects us all, but I don't believe that it deals with the situation in which we have a virtually identical act by virtual computer imaging to actual children. It has the same tendency to inflame people to go out and do bad acts. Congress will need to do a better job of building a record on that, calling some testimony. We have evidence that in federal prisons, of those who admitting molesting children, out of 1,400 children molested, only 10 of the perpetrators indicated that they had not been involved in pornography of this kind.

So there is a direct connection in my view. It's a good way to identify people who are dangerous and these kind of prosecutions should not be restricted, in my view. We need to protect children and we need to fix the statute so that we can go forward.

ZAHN: All right, well, Sen. Sessions, thanks so much for joining us this morning. Floyd Abrams, you, as well. We'll have to bring the two of you back for a debate on the finer point of that and whether you actually believe this pornography leads to crime, as Sen. Sessions just pointed out.

All right, have a good day you two.

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