"If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind." - John Stuart Mill
US Supreme Court - Justices' Conference Room
In a mahogany-paneled room, seven men and two women sit around a long rectangular oak table on brown-leather-cushioned high-back chairs. Majestic portraits of men clad in black robes hang on the walls. At one end of the room is a huge American flag attached to a massive pole. A solid brass eagle frozen in flight sits atop the pole, standing guard; its brass, sculpted eyes are cold and stern. The year is 1994.
Chief Justice Rehnquist
Settled, seven to one upholding Massachusetts child pornography law in Massachusetts v. Virtual Reality Systems...
Justice Blackmun
...Still dissenting...
Chief Justice Rehnquist
Noted, Justice Blackmun, one dissent and one abstention by Justice Ginsburg as the case was voted prior to her arriving on the bench. Next, voice vote on...
Justice Blackmun
...Still...it would be...
Chief Justice Rehnquist (sighs)
Yes, Justice Blackmun, what's on your mind?
Justice Blackmun
Chief Justice, just a thought, I know it's highly irregular, but I'd like to break precedent and have a little discussion about the Massachusetts case...
Justice Stevens
...But...
Justice Blackmun
All deference due, John Paul, I read your opinion, everyone's memos, and though I'm an old dog, I wish we'd rethink this one... (Justices Scalia, Souter, Thomas, O'Connor, Kennedy, Stevens, Ginsburg, and Chief Justice Rehnquist look perplexed.)
Justice Scalia (leans over, whispers to Justice Stevens)
...ideologically more like Brennan every day.
Justice Blackmun (looks around)
...a ten-minute open discourse?
(All of the justices look toward Rehnquist; there is a pause, each justice nods.)
Chief Justice Rehnquist (pensively)
Fine.
Justice Blackmun
Good...glad we're all agreed. Now, this is not your typical obscenity case. It hinges on an area of law where ideas and speech merge, prime First Amendment...
(Justice Stevens raises his hand slightly and Justice Blackmun stops. Chief Justice Rehnquist acknowledges Justice Stevens.)
Justice Stevens
...Harry... Pardon me, if this is the type of discussion you would like, I'd be happy to oblige. However, as writer of this case's almost unanimous decision...let me first quickly review the facts. Massachusetts passed a child pornography law. The law specifically criminalizes "representations or descriptions of sexual acts with children whether actual or simulated." The Massachusetts statute uses not only the Miller three-prong test; but also some Miller dicta in which the term "depiction" is defined.
(Justice Stevens looks around for any objections to his interpretation thus far. All justices including Justice Blackmun nod agreeably.)
[NOTE: Miller v. California, 413 US 15 (1973), provides that the basic guidelines for a trier of fact to find obscenity are a) whether an average person, applying contemporary standards, would find the work, taken as a whole, appeals to prurient interest; b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.]
Justice Stevens (continuing)
Now, in writing this opinion, I used an interpretation of the first prong of the Miller test from Pope v. Illinois. Pope, another decision dealing with obscenity, suggested that the proper inquiry was not whether an "ordinary member" of any given community could "find serious, literary, artistic, political, or scientific value in allegedly obscene material," but whether "a reasonable person" could find such value in the material, when taken as a whole. The "reasonable man" standard differs from the "ordinary man" standard in that the reasonable man, as a semipolitically savvy individual, looks out for community values.
(The members of the court nod wearily; Justice Blackmun listens patiently.)
Justice Stevens (continuing)
Virtual Reality Systems was convicted by the state trial court for creating and selling Kiddy Porn Street, a software program used with new virtual reality technology. Virtual reality mixes computers, computer animation, and human interaction. By putting on an electronic mask that covers one's eyes, ears, nose, and mouth and by slipping into a specially equipped body suit with sensors that respond to touch, a person steps into a computer-generated reality. Kiddy Porn Street was specially created for a virtual reality environment in which adults interact sexually with various computer-generated fictional children. Both Massachusetts state trial and appellate courts found that the creation, distribution, and possession of the program violated state law. An overwhelming majority of us now affirm this...
(Justice Blackmun raises his hand. Chief Justice Rehnquist winces slightly, acknowledges the Justice.)
Justice Blackmun
...John Paul, very well stated. Still...our present dilemma contrasts with that of prior case law dealing with child pornography. Both 1982's Ferber v. New York, in which we affirmed a state law prohibiting distribution of peep-show films of actual young boys masturbating, and 1990's Osborne v. Ohio, where child pornography was deemed excluded from First Amendment protection in private home viewing by adults, were cases that dealt with a different method of creating child pornography.
Justice Scalia (in total disbelief)
Justice Blackmun, are you suggesting that by its manner of creation, this computer program is constitutionally protected child pornography?
(All of the Justices' mouths slowly open, then remain in that position.)
Justice Blackmun (with a wry smile)
My contention is simply that the Massachusetts law is an overbroad intrusion into protected speech. It does not seek to protect children, for no actual children are used in the making of the program. Nor does Virtual Reality Systems foist its program on unwilling adults, or sell the program to, or allow it to be used by, minors.
Justice Scalia
Excuse me Justice Blackmun, my reading of the "depiction" prong in Miller suggests that a state could statutorily find obscene, and I quote, "patently offensive representations or descriptions of ultimate sexual acts normal or perverted, actual or simulated." "Depiction" therefore clearly includes sexual acts that are "simulated."
Chief Justice Rehnquist
Further, wouldn't it seem clear, using an analysis akin to that in Barnes v. Glen Theatre, that while the "idea" of child pornography is constitutionally protected (no matter how repulsive it may be to any reasonable person), this court is just affirming the legislated prohibition of "simulated" pornographic creation? Under the Massachusetts law, one's underlying belief in child pornography is still free to be explored in the American marketplace of ideas, is it not?
[NOTE: Barnes v. Glen Theatre, 111 S. Ct. 2456 (1991) upheld a ban on nude dancing in an adult club based upon a public nudity law, as opposed to First Amendment speech grounds. This philosophical misdirection enabled the court to evade a direct declaration that it was denying the protection of an activity that was previously accorded constitutional protection.]
Justice Souter
Justice Blackmun, it goes almost without saying that all of us know the First Amendment is not absolute. Nor is obscenity constitutional; "creation" of child pornography is constitutionally punishable. Massachusetts's statutory prohibition, then, must only complement existing ideology and precedent. This case does not return us to the days of Anthony Comstock and the turn-of-the-century New York Society for the Suppression of Vice. It is not as though we are suppressing written words...
[NOTE: From a period beginning in 1873, Anthony Comstock, secretary of the New York Society for the Suppression of Vice, reigned for 43 years as the unofficial government-sanctioned watchdog who sought out and fought to censor what he thought was obscene literary and pictorial works. See Edward de Grazia, Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius, (1992), 4]
Chief Justice Rehnquist
...Nor are we suppressing belief. For instance, even today with the backdrop of a case like Bowers v. Hardwick, where constitutional protection was not recognized for homosexuality, we still keep protection for literature such as William Burroughs's novel Naked Lunch - a novel in which the protagonist, a male drug addict, had recurrent explicit sexual relations with underage boys.
Justice Blackmun (unmoved)
All that each of you have said is correct... Still...
Justice Scalia (whispers, leaning to Justice Thomas)
...again "still"?
Justice Blackmun
...it is the context of the way the word "simulated" was used in Miller that ultimately convinced me that the Massachusetts application of its obscenity law to the new technology of virtual reality is unconstitutional. "Simulated" child pornography was meant to indicate "representative" sex, involving actual children simulating sex with adults. The term "simulated" was not meant to signify completely fictionalized sexual portrayals in which the integrity of no real children was ever compromised.
Justice Scalia
As the Justice with the reputation for being the most literal interpreter of statutory language, I see no problem with the Massachusetts interpretation, or with implementation of the word "simulated." Kiddy Porn Street is still a simulation of a fictional child having sexual interactions with living, breathing adults. The law is meant to punish adults, not children.
Justice O'Connor
I also do not shy away from the moral philosophy underlying the laws state legislatures pass that result in bringing up cases such as Bowers v. Hardwick or Massachusetts v. Virtual Reality Systems. The states have a moral imperative to promote societal unity and family values. Of course, this is weighed against vigorous First Amendment protections.
[NOTE: A societal morality argument, predicated upon the preservation of national historical and traditional values, was used to uphold Georgia's homosexual sodomy law in Bowers v. Hardwick, 478 US 186 (1986). The plaintiff in Bowers argued for a right to sexual privacy in the home based on logic gleaned from Stanley v. Georgia, 394 US 557 (1969). Stanley was a First Amendment case, in which the court decided that the mere possession of obscene material by an adult in the privacy of his home could not be made criminal. The majority in Bowers, however, rejected Stanley's thesis, for it was based upon First Amendment rather than Fourteenth Amendment grounds. Furthermore, the majority in Bowers rejected a constitutional argument advocating protection for all voluntary sexual conduct between consenting adults in the home. The court's reasoning was that "it would be logically impossible to protect the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home." The majority was "unwilling to start down that road." The rationale in making this analytic equation is not logically clear.]
Justice Blackmun (quietly)
It is quite accurate to note our country's existing economic decline, problems with drug addiction, general familial problems, increased numbers of divorces. And yet there is no hard evidence of the correlation between an adult's private, at-home forays into obscenity and the promulgation of society's evils. Even the hard statistical data supporting the Meese Commission's report on pornography is inconclusive.
[NOTE: Edward de Grazie's Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius, discusses at length the 1985 Attorney General's Commission on Pornography. The commission, aka The Meese Commission, presented isolated case studies and individual testimonies of people hurt as a result of pornography.
The commission failed, however, to show any valid statistical correlation between pornography and the abuse of women or children. (See de Grazie, chapter 29, pages 580-90.) The Meese Commission's testimonials did significantly negate the final determination of the 1970 National Commission on Obscenity and Pornography, which was to ease or abolish the general laws on obscenity. (See de Grazie, chapter 28, pages 551-560).]
Justice O'Connor
Justice Blackmun, I hope you are right. However, the Meese Commission's testimonials and the various state legislatures earnestly disagree with you. As a group, Americans are seeking to solve a well-documented societal evil through the democratic process. It is inappropriate for me to decide that state legislatures are wrong in statutes over prospective technologies.
Justice Thomas
It is precisely because new communicative technologies have such unlimited potential that state legislatures must secure proper laws for virtual reality. This technology has no history within our society. Why, should states wait until the onslaught of Kiddy Porn Street- type programs have already done irrevocable harm? The Constitution does not compromise the citizens living under it by subjecting them to a pernicious harm in the name of privacy or free speech.
(All Justices look at each other in agreement. Justice Blackmun, the 85-year-old justice, sighs.)
Justice Blackmun (appearing tired)
True, America has been feeling the effects of a deep moral malaise. Our country looks to government to put us back on the right track. We have become like a herd frightened by fiery conflagrations or packs of hungry wolves. So with the thunderous clop of hoofs, our leaders begin a tremendous stampede to evade danger. At first, as the movement grows in size and speed it is exciting. Even when a few heads are trampled underfoot, we know in our hearts the group will be safe...still, a herd can follow its leaders over an unseen cliff. Pray we will still have a strong Bill of Rights to stop us from running the herd too far.
(All the Justices remain silent when Justice Blackmun finishes. Chief Justice Rehnquist looks down at his watch, mildly taps the table.)
Chief Justice Rehnquist
...Well then.... We have quite a schedule ahead and not a great deal of time. Voice vote on Women For Abortion Choices v. State of Louisiana.
(The camera focuses on Justice Blackmun's folded hands resting on the table as they slowly drop into his lap. Camera pans to a close-up shot of the cold brass eyes of the American eagle frozen in flight atop the flagpole.)
Fade to Black
The following words appear on the screen: "If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind." - John Stuart Mill _On Liberty_
