I have worked at Morality in Media for the past 17 years, first as a staff attorney and now as president. While I do not regard myself as a "constitutional law expert," I have come to some conclusions about the First Amendment's freedom of speech and press clauses and about the Supreme Court's application of those clauses to invalidate needed laws.

When a draft of the proposed "virtual" child porn law and suggestions for changing it were being circulated, I recall thinking how difficult it is to write a law broad enough to address the entire problem without reaching "expression" that either does not cause the harm the law is aimed at or that should nevertheless be protected for some other reason.

While the law at issue in Winters v. New York, 333 U.S. 507 (1948) was overturned on vagueness grounds, Justice Frankfurter's description (in dissent at pp. 532-533) of the problems faced by state legislators in attempting to curb publications that incite crimes of violence are similar to those Congress faced in attempting to curb "virtual child porn:"

"No doubt such a law presents difficulties in draftsmanship ... How to escape, on the one hand, having a law rendered futile because no standard is afforded by which conduct is to be judged, and, on the other, a law so particularized as to defeat itself through the opportunities it provides for evasion, involves an exercise of judgment that is at the heart of the legislative process. But this accommodation is for the legislature to make and for us to respect, when it concerns a subject so clearly within the scope of the police power."

Undoubtedly, Congress often does an imperfect job of limiting the reach of a law only to those situations where it is validly applied; and in my view, the Supreme Court acts properly when it restricts application of a law in a particular case to prevent manifest injustice or to prevent injury to some other equally important interest.

In the past, the Supreme Court has also construed statutes so as to be consistent with the First Amendment. In his dissent in Ashcroft v. Free Speech Coalition, Justice Rehnquist concluded that the "virtual child porn" law could have been so construed.

But when the Supreme Court invalidates a law on its face because a majority of Justices assert that the law reaches a "substantial amount of protected expression," that is different matter. One big problem with the Court's "substantial overbreadth" doctrine is that laws which both on their face and in their most likely applications are absolutely necessary to the well-being of society -- and of children in particular -- are routinely invalidated.

The Communications Decency Act of 1966 is an example of such a law. In 1997, the Supreme Court held that the CDA was unconstitutionally "overbroad;" and five years later children still have unrestricted access to a smorgasbord of pornographic materials on the Internet. If (or perhaps, more realistically, When) the Supreme Court also invalidates the Child Online Protection Act and the Child Internet Protection Act, the irreparable harm to children from exposure to Internet pornography will continue largely unabated in years ahead.

In United States v. Playboy Entertainment Group, 529 U.S. 803 (2000), the Supreme Court concluded that a federal law intended to protect children from exposure to sexually explicit programming on cable TV pay-per-view(s) porn channels was unconstitutional because the government failed to prove the law was the "least restrictive means for addressing the real problem." But as dissenting Justice Breyer pointed out (529 U.S. at ___):

"As Justice Blackmun pointed out, a 'judge would be unimaginative indeed if he could not come up with something ... a little less "restrictive" in almost any situation, and thereby enable himself to vote to strike legislation down' ... Used without a sense of the practical choices that face legislators, 'the test merely announces an inevitable [negative] result, and the test is no test at all.'"

In Ashford v. Free Speech Coalition, the Supreme Court invalidated the "virtual child porn law" that was intended to prohibit distribution of pornographic materials that appear to depict children. The harms to actual children that these materials can and do cause are evident: "virtual" child pornography fuels the sexual desires of adults who molest children and is also used by pedophiles to desensitize and instruct their child victims.

Defense attorneys can now also be expected to routinely assert that the government has not proved a violation of other still-constitutional child pornography laws because it has not proved beyond a reasonable doubt that an actual child was involved.

Despite what some may think (or want others to think), the First Amendment was never intended to protect all "expression." As Justice Brennan put it in the 1957 Roth v. United States obscenity case (354 U.S. 479, at 483): "It is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance." Rather, these clauses were intended primarily to protect discussion and debate on matters of public concern. As Chief Justice Burger said in the 1973 Miller v. California obscenity case (413 U.S. 15, at 34):

"'The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes...'"

And despite what the Supreme Court may think, there is a difference between public discussion and debate about children engaging in sex (with each other or with adults) and visual depictions of such activity for the purpose of sexually arousing adult viewers.

There is also a difference between a law -- like the "virtual child porn" law -- that provides for punishment after the fact and a law which operates as a "prior restraint." As stated in the 1931 Near v. Minnesota case (283 U.S 697, at 714-715):

"'In the first place, the main purpose of such [free speech and press] constitutional provisions is "to prevent all previous restraints upon publications as had been practiced by other governments,"' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare ... The point of criticism has been 'that the mere exemption from previous restraints cannot be all that is secured by the constitutional provisions'; and that 'the liberty of the press might be rendered a mockery and a delusion ... if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications' ... But it is recognized that punishment for the abuse of liberty accorded to the press is essential for the protection of the public ..." (underlining added by author)

For the most part, the Supreme Court now ignores the difference between previous restraints and subsequent punishment - with the result that the public and children in particular are exposed to harm that government is established to protect against.

The Supreme Court has also become deaf to the warning enunciated in Columbia Broadcasting System v. Democratic National Committee, 412 U.S. 94, at ___ (1973):

"Thus, in evaluating the First Amendment claims ... we must afford great weight to the decisions of Congress ... Professor Chafee aptly observed:

'Once we get away from the bare words of the [First] Amendment, we must construe it as part of a Constitution which creates a government for the purpose of performing several very important tasks. The Amendment should be interpreted so as to not cripple the regular work of government.'"