PROTECTing the figure of innocence: child pornography legislation and the queerness of childhood

ABSTRACT

In US v. Williams (2008), the Supreme Court upheld the PROTECT Act; this law's “pandering provision” prohibits the distribution and solicitation of child pornography, but does not distinguish between real child pornography and “virtual” child pornography (images that are digitally created or manipulated and do not depict a real child). Situating this case at the intersection of rhetorical studies of the law and queer studies, I read the Court's opinions as rhetorical and cultural texts that circulate a strategic figuration of the child that emphasizes its sexual purity, vulnerability, and whiteness, and disavows the queerness of childhood desires. I argue that the Court's decision virtualizes the figuration of the child through the performative “collateral speech” act, ultimately conflating virtual materials with real children. Furthermore, I contend that the language of the law, as it taxonomizes and disciplines illicit desires, also expresses desire through its passionate figurations of childhood innocence and adult sexual morality.

KEYWORDS:

• US v. Williams
• legal rhetoric
• dissenting opinion
• desire
• virtual

Acknowledgments

The author thanks Peter Odell Campbell for his invaluable advice throughout this essay's development, Jennifer Clary-Lemon and Rachel Hall for their feedback on early drafts, and Mary Stuckey and the anonymous reviewers for their encouragement and generous suggestions.

Notes on contributor

Erin J. Rand is Associate Professor of Communication and Rhetorical Studies and affiliated with LGBT Studies at Syracuse University.

Notes

1 In his concurring opinion in US v. Williams, Justice John Paul Stevens explores various meanings of “pandering,” ranging from the everyday to the technical. For instance, the OED defines it generally as “minister[ing] to the gratification of (another's lust),” while Black's Law Dictionary refers more specifically to “the act or offense of selling or distributing textual or visual material (such as magazines or videotapes) openly advertised to appeal to the recipient's sexual interest.” The Court's definition, developed through previous cases, is “the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest.” See John Paul Stevens, concurring, US v. Williams 553 U.S. 285 (2008), 308.

2 New York v. Ferber 458 U.S. 747 (1982).

3 US v. Williams 553 U.S. 285 (2008).

4 New York v. Ferber 458 U.S. 747 (1982).

5 See, for example: Rosalind E. Bell, “Reconciling the PROTECT Act with the First Amendment,” New York University Law Review 87, no. 6 (2012): 1878–917; Benjamin A. Mains, “Virtual Child Pornography, Pandering, and the First Amendment: How Developments in Technology and Shifting First Amendment Jurisprudence Have Affected the Criminalization of Child Pornography,” Hastings Constitutional Law Quarterly 37, no. 4 (2010): 809–36; Joseph J. Beard, “Virtual Kiddie Porn: A Real Crime? An Analysis of the PROTECT Act,” Entertainment and Sports Lawyer 21 (2003): 3–7.

6 See, for example: Peter Odell Campbell and Cory Holding, “The Trans-Exclusive Archives of U.S. Capital Punishment Rhetoric,” in Transgender Communication Studies: Histories, Trends, and Trajectories, eds. Leland G. Spencer and Jamie C. Capuzza (Lanham: Lexington Books, 2015), 199–216; Stephen Dillon, Fugitive Life: The Queer Politics of the Prison State (Durham: Duke University Press, 2018); Joseph J. Fischel, “Transcendent Homosexuals and Dangerous Sex Offenders: Sexual Harm and Freedom in the Judicial Imaginary,” Duke Journal of Gender Law and Policy 17 (2010): 277–311; Erica R. Meiners, For the Children? Protecting Innocence in a Carceral State (Minneapolis: University of Minnesota Press, 2016).

7 Shaka McGlotten, Virtual Intimacies: Media, Affect, and Queer Sociality (Albany: SUNY Press, 2013), 91.

8 McGlotten, Virtual Intimacies, 1. McGlotten cites Gilles Deleuze on virtuality: “what we call virtual is not something that lacks reality but something that is engaged in a process of actualization.” See Gilles Deleuze, Pure Immanence: Essays on a Life, trans. Anne Boyman (New York: Zone Books, 2001), 31.

9 I develop the notion of rhetorical figuration more fully elsewhere: Erin J. Rand, “‘Gay Boys Kill Themselves’: The Queer Figuration of the Suicidal Gay Teen,” in Sexual Rhetorics: Methods, Identities, Publics, eds. Jonathan Alexander and Jacqueline Rhodes (New York: Routledge, 2016), 175–87.

10 Marianne Constable, “On Not Leaving Law to the Lawyers,” in Law in the Liberal Arts, ed. Austin Sarat (Ithaca: Cornell University Press, 2004), 78.

11 Marianne Constable, Our Word Is Our Bond: How Legal Speech Acts (Stanford: Stanford Law Books, 2014), 137.

12 Marouf Hasian Jr., Celeste Michelle Condit, and John Louis Lucaites, “The Rhetorical Boundaries of ‘the Law’: A Consideration of the Rhetorical Culture of Legal Practice and the Case of the ‘Separate but Equal’ Doctrine,” Quarterly Journal of Speech 82, no. 4 (November 1996): 323, 326–7, 327.

13 Hasian, Condit, and Lucaites, “The Rhetorical Boundaries of ‘the Law,’” 335–6, 337.

14 Constable, Our Word Is Our Bond, 10.

15 Constable, Our Word Is Our Bond, 35–36; Stanley Cavell, Philosophy the Day after Tomorrow (Cambridge: The Belknap Press of Harvard University Press, 2005), 185.

16 Mark C. Taylor, “Desire of Law; Law of Desire,” Cardozo Law Review 11, no. 5–6 (1990): 1269, 1273–4.

17 Patricia M. Wald, “The Rhetoric of Results and the Results of Rhetoric: Judicial Writings,” University of Chicago Law Review 62, no. 4 (Autumn 1995): 1372.

18 Wald, “The Rhetoric of Results,” 1418.

19 Wald, “The Rhetoric of Results,” 1415.

20 Robert A. Ferguson, “The Judicial Opinion as Literary Genre,” Yale Journal of Law & the Humanities 2, no. 1 (1990): 202.

21 David Cole, “Agon at Agora: Creative Misreadings in the First Amendment Tradition,” Yale Law Journal 95, no. 5 (1986): 859.

22 Gerald B. Wetlaufer, “Rhetoric and Its Denial in Legal Discourse,” Virginia Law Review 76, no. 8 (1990): 1561–3. Justice Scalia, famous for his rhetorical creativity, and dubbed “one helluva stylist” by Jeffrey M. Shaman, is an excellent example of the point made here by Ferguson, Cole, and Wetlaufer. His signature flourishes, most abundant in his dissents, are not as much on display when he writes for the Court in Williams, but his unique style is evident nonetheless (Jeffrey M. Shaman, “Justice Scalia and the Art of Rhetoric,” Constitutional Commentary 477 (2012): 287, https://scholarship.law.umn.edu/concomm/477).

23 For a history of the debate over dissenting opinions in the United States, see: Hunter Smith, “Personal and Official Authority: Turn-of-the-Century Lawyers and the Dissenting Opinion,” Yale Journal of Law and the Humanities 24, no. 2 (2012): 507–41.

24 Hasian, Condit, and Lucaites, “The Rhetorical Boundaries of ‘the Law,’” 326.

25 Margot Canaday, The Straight State: Sexuality and Citizenship in Twentieth-Century America (Princeton: Princeton University Press, 2009), 216.

26 Canaday, The Straight State, 205.

27 Michel Foucault, Guy Hocquenghem, and Jean Danet, “The Danger of Child Sexuality,” in Foucault Live: Collected Interviews, 1961–1984, ed. Sylvère Lotringer, trans. Lysa Hochroth and John Johnston (New York: Semiotext(e), 1989), 267.

28 Foucault, Hocquenghem, and Danet, “The Danger of Child Sexuality,” 268, 270.

29 Fischel, “Transcendent Homosexuals,” 296.

30 Fischel, “Transcendent Homosexuals,” 282.

31 Fischel, “Transcendent Homosexuals,” 304, 279–80.

32 Ian Barnard, “Rhetorical Commonsense and Child Molester Panic – A Queer Intervention,” Rhetoric Society Quarterly 47, no. 1 (2017): 19. Dean Durber makes a similar argument about pedophilia: “The Paedophile and ‘I,’” Media International Australia 127, no. 1 (2008): 57–70. In keeping with Fischel's, Barnard's, and Durber's cautions about the political work done by language that describes people in terms of acts they have committed (e.g., “sex offender,” “child pornographer”), I use these labels only when I mean to refer to cultural and rhetorical figures, not to individual people.

33 Foucault, Hocquenghem, and Danet, “The Danger of Child Sexuality,” 267.

34 Barnard, “Rhetorical Commonsense,” 4–5; Susan C. Jarratt, “Editor's Message,” Rhetoric Society Quarterly 47, no. 1 (2017): 1.

35 Juana María Rodríguez, Sexual Futures, Queer Gestures, and Other Latina Longings (New York: NYU Press, 2014), 32–3.

36 Feminist scholars critiquing contemporary American rape discourse observe a similar construction of women as inherently vulnerable and passive in relation to men, and women's bodies as vacuous, inert “rape space.” Rachel Hall notes that understanding women and children as “embodiments of risk” also justifies preemptive surveillance of potential perpetrators – often identified on the basis of race and class – even before the supposedly inevitable violation occurs. J. K. Gibson-Graham, The End of Capitalism (As We Knew It): A Feminist Critique of Political Economy (Minneapolis: University of Minnesota Press, 2006), 79; Rachel Hall, “‘It Can Happen to You’: Rape Prevention in the Age of Risk Management,” Hypatia 19, no. 3 (2004): 1–19.

37 James R. Kincaid, “Producing Erotic Children,” in Curiouser: On the Queerness of Children, eds. Steven Bruhm and Natasha Hurley (Minneapolis: University of Minnesota Press, 2004), 11; Kathryn Bond Stockton, The Queer Child, or Growing Sideways in the Twentieth Century (Durham: Duke University Press, 2009), 31.

38 Stockton, The Queer Child, 31.

39 Robin Bernstein, Racial Innocence: Performing American Childhood from Slavery to Civil Rights (New York: NYU Press, 2011), 68.

40 Mary Niall Mitchell, Raising Freedom's Child: Black Children and Visions of the Future after Slavery (New York: New York University Press, 2008), 68.

41 Meiners, For the Children?, 36. The white supremacy at the core of figurations of childhood can be further witnessed in the hastiness with which youth of color, such as Trayvon Martin, Tamir Rice, or Antwon Rose, are not only denied the assumption of childhood innocence but are themselves perceived to pose a threat.

42 Stockton, The Queer Child, 1.

43 Lee Edelman, No Future: Queer Theory and the Death Drive (Durham: Duke University Press, 2004), 21, 11.

44 Edelman, No Future, 21.

45 For an excellent version of this argument in relation to sex offender registries, see: Erica R. Meiners, “Awful Acts and the Trouble with Normal,” in Right to Be Hostile: Schools, Prisons, and the Making of Public Enemies (New York: Routledge, 2007), 113–38.

46 Bell, “Reconciling the PROTECT Act,” 1887.

47 New York v. Ferber 458 U.S. 747 (1982), 757; Bell, “Reconciling the PROTECT Act,” 1887.

48 The Child Protection Act was passed at the federal level in 1984, and numerous state-level regulations followed in its wake (some of which led to Supreme Court challenges; for example, Massachusetts v. Oakes in 1989 and Osborne v. Ohio in 1990).

49 Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), 250; emphasis added.

50 Bell, “Reconciling the PROTECT Act,” 1896.

51 Bell, “Reconciling the PROTECT Act,” 1897.

52 Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003, Public Law 108–21, 117 Stat. 650, S. 151, April 30, 2003: 680. The Act's use of “obscene” is drawn from Miller v. California, which held that obscenity is not protected by the First Amendment and offered the following guidelines to test for obscenity:

(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest … (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (Miller v. California, 413 U.S. 15 (1973))

53 Mains, “Virtual Child Pornography,” 833.

54 Antonin Scalia, US v. Williams, 553 U.S. 285 (2008), 299.

55 Scalia, US v. Williams, 553 U.S. 285 (2008), 307.

56 Scalia, US v. Williams, 553 U.S. 285 (2008), 290.

57 The PROTECT Act lists the activities it prohibits (advertising, distributing, soliciting, and so forth), but does not label them as “pandering.”

58 Scalia, US v. Williams, 553 U.S. 285 (2008), 293.

59 See, for example, John C. Domino, Civil Rights and Liberties in the 21st Century, 4th ed. (New York: Routledge, 2018), 90; Gregory P. Magarian, Managed Speech: The Roberts Court's First Amendment (New York: Oxford, 2017), 20–2.

60 Judith Butler, Excitable Speech: A Politics of the Performative (New York: Routledge, 1997), 72.

61 Butler, Excitable Speech, 78, 121.

62 Butler, Excitable Speech, 78.

63 Amy Adler, “The Perverse Law of Child Pornography,” Columbia Law Review 101, no. 2 (2001): 264, 256. Adler writes not specifically about the PROTECT Act, but child pornography law more generally. Although she is also disturbed by the figuration of childhood vulnerability and victimization in these laws, she draws a different conclusion about childhood sexuality than I do here: she contends that child pornography legislation proliferates and even escalates the sexualization of children and “exhorts us to take on the perspective of the pedophile.”

64 Constable, Our Word Is Our Bond, 56.

65 David Souter, dissenting, US v. Williams, 553 U.S. 285 (2008), 313.

66 Catherine L. Langford, “Toward a Genre of Judicial Dissent: Lochner and Casey as Exemplars,” Communication Law Review 9, no. 2 (2009): 1.

67 Langford, “Toward a Genre,” 2. I develop this argument about the functions of the genre of dissenting opinions elsewhere: Erin J. Rand, “Fear the Frill: Ruth Bader Ginsburg and the Uncertain Futurity of Feminist Judicial Dissent,” Quarterly Journal of Speech 101, no. 1 (2015): 72–84.

68 Souter, dissenting, US v. Williams, 553 U.S. 285 (2008), 314.

69 Souter, dissenting, US v. Williams, 553 U.S. 285 (2008), 319.

70 Souter, dissenting, US v. Williams, 553 U.S. 285 (2008), 322, 321.

71 Souter, dissenting, US v. Williams, 553 U.S. 285 (2008), 320.

72 Souter, dissenting, US v. Williams, 553 U.S. 285 (2008), 310, n. 1.

73 Souter, dissenting, US v. Williams, 553 U.S. 285 (2008), 321.

74 Souter, dissenting, US v. Williams, 553 U.S. 285 (2008), 324–5, n. 3.

75 Souter, dissenting, US v. Williams, 553 U.S. 285 (2008), 324–5, n. 3.

76 Comic Book Legal Defense Fund, “Criminal Prosecutions of Manga,” Accessed June 25, 2018, http://cbldf.org/criminal-prosecutions-of-manga/; Kirsten Cather, “Must We Burn Eromanga? Trying Obscenity in the Courtroom and in the Classroom,” in The End of Cool Japan: Ethical, Legal, and Cultural Challenges to Japanese Popular Culture, ed. Mark McLelland (New York: Routledge, 2017), 80.

77 Center for American Progress and Movement Advancement Project, “Unjust: How the Broken Juvenile and Criminal Justice Systems Fail LGBTQ Youth,” August 2016, 12; Erin Comartin, Roger Kernsmith, and Poco Kernsmith, “‘Sexting’ and Sex Offender Registration: Do Age, Gender, and Sexual Orientation Matter?,” Deviant Behavior 34, no. 1 (2013): 38–52; Joey L. Mogul, Andrea J. Ritchie, and Kay Whitlock, Queer (In)Justice: The Criminalization of LGBT People in the United States (Boston: Beacon Press, 2011).

78 Center for American Progress and Movement Advancement Project, “Unjust,” 1, 4. http://www.lgbtmap.org/policy-and-issue-analysis/criminal-justice-youth.

79 Canaday, The Straight State, 6. For example, Siobhan B. Somerville examines the deployment of the “like race” analogy to argue for the legalization of same-sex marriage by calling on decisions about interracial marriage as precedent; Isaac West, E. Cram, Dean Spade, and Sara McKinnon all consider the challenges faced by transgender individuals whose lives must be made legible within the law (whether by seeking recognition of their gender identities, as victims of bias crimes, in order to be protected by anti-discrimination laws, or as asylum seekers), even as the law, according to Spade, “structures and reproduces vulnerability for trans populations.” Peter Odell Campell even makes a compelling case for the rhetoric of the Supreme Court itself as a site of radical queer politics by “exploring how legislative and judicial pronouncements on sexuality in the United States can be framed and understood in ways that matter for radical queer futures, even as such pronouncements originate within, are circumscribed by, and reproduce the logic of heteronormative institutions” (Siobhan B. Somerville, “Queer Loving,” GLQ: A Journal of Lesbian and Gay Studies 11, no. 3 (2005): 335–70; Isaac West, “Debbie Mayne's Trans/scripts: Performative Repertoires in Law and Everyday Life,” Communication & Critical/Cultural Studies 5, no. 3 (September 2008): 245–63; E. Cram, “‘Angie Was Our Sister’: Witnessing the Trans-Formation of Disgust in the Citizenry of Photography,” Quarterly Journal of Speech 98, no. 4 (2012): 411–38; Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law (Brooklyn: South End Press, 2011), 29; Sara L. McKinnon, “US Gender- and Sexuality-Related Asylum Law: The Politics of Transgender Asylum,” Communication and the Public 1, no. 2 (June 2016): 245–50; Peter Odell Campbell, “The Procedural Queer: Substantive Due Process, Lawrence v. Texas, and Queer Rhetorical Futures,” Quarterly Journal of Speech 98, no. 2 (2012): 204).

80 Rodríguez, Sexual Futures, 17. The refusal to define queerness in opposition to the bugbears of pedophilia and recruitment can also be seen, for instance, in Charles E. Morris III, “Sunder the Children: Abraham Lincoln's Queer Rhetorical Pedagogy,” Quarterly Journal of Speech 99, no. 4 (2013): 395–422, and Dean Durber, “Still Missing: Daniel Morcombe and the Queer Child,” Continuum: Journal of Media & Cultural Studies 21, no. 1 (2007): 19–31.

81 Jarrett, “Editor's Message,” 1.

82 Kincaid, “Producing Erotic Children,” 9.