Cardozo Law Review
As the professor on the panel, I feel that I should start by putting our subject into a bit of context. Then I will focus on the criminalization of depictions of imaginary children before saying a few words about the overbreadth of this statute.
By way of context, then, the problem that we are discussing is one that is characteristic of the introduction of new communications technologies.
At the end of the nineteenth century, when movies were first shown, people came running out of the theaters in panic when they saw a picture of a locomotive bearing down upon them-the effect was that intense.' As a result, in 1915 the United States Supreme Court said that movies are not protected, because they are something different, a dangerous form of expression, and not the newspapers, which the Framers had in mind.' But in 1952, the Court had to overrule that case, with some embarrassment, because by then movies had been incorporated into society and the initial hysteria had died. There are many more examples along those lines, which simply reflect the reality that new communications modalities succeed exactly because they produce more dramatic, more vivid, and more realistic representations than the ones that could previously be created. A photograph is truer to life than a painting, which is why there developed a market for photographs, and movies displaced magic lantern shows for the same reason.
Eric M. Freedman,
Digitized Pornography Meets the First Amendment, 23 Cardozo L. Rev. 2011
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