To say that Brian Dalton has "issues" is to put it mildly. His
own mother calls him "a lonely misfit kid," a 22-year-old high
school dropout with a nasty case of attention deficit disorder and
lousy job skills. The tragic topper, though, is Dalton's pedophilia,
an obsession that netted him a 1998 child-porn conviction for
downloading verboten pictures. Despite that legal scrape, he has yet
to squelch his truly stomach-churning fantasies, which involve the
caging and rape of 10-year-old girls. r Dalton's inner life may be
creepy--nay, repulsive--but is it criminal? He has never acted on
his dark impulses, preferring instead to record his icky dreams in a
secret journal. But for prosecutors in Columbus, Ohio, those private
writings were enough to merit charges under a broad statute that
prohibits "any obscene material that has a minor as one of its
participants or portrayed observers." Dalton's parents turned the
journal over to authorities earlier this summer in hopes that their
son would be forced into sex-offender treatment; instead, he
received a seven-year prison sentence for daring to commit his
inmost thoughts to paper. r The case's uncanny parallels to George
Orwell's 1984--in which a man is summoned to the "Ministry of Love"
for making diary entries deemed too salacious--has spooked civil
libertarians, who consider personal logs sacred. ''Short of the
ability to read minds, I don't know how one could come closer to
punishing thought than convicting a man as a felon for the contents
of his private diary," says Raymond Vasvari, legal director of the
ACLU of Ohio. r But cries of "Won't somebody please think of the
children?" have a peculiar way of dulling common sense. Anti-porn
crusaders, spurred by paranoia over the mind-warping effects of
technology, believe mere thoughts should be punished, lest the
thinkers someday act on their mental snapshots.
The Dalton case is groundbreaking in its criminalization of
uncirculated text. Until recently, the private ownership of obscene
material was constitutionally protected, provided no children were
involved in its creation. In a 1969 decision, Stanley v. Georgia,
the Supreme Court concluded that "the state may no more prohibit
mere possession of obscene matter on the ground that it may lead to
antisocial conduct than it may prohibit possession of chemistry
books on the ground that they may lead to the manufacture of
homemade spirits. . . . A state has no business telling a man,
sitting alone in his own house, what books he may read or films he
may watch."
Anti-porn activists have since been chipping away at Stanley.
They've relied on a long-discredited legal doctrine holding that
benign naughtiness inevitably leads to more sinister doings. Known
as the "bad tendency" test, the doctrine was used in bygone days to
justify the persecution of suspected no-goodniks who wrote tracts
praising Sacco and Vanzetti, or discussed the merits of socialism.
It was replaced by the familiar "clear and present danger" test, a
far tougher standard that requires concrete proof of the link
between word and deed.
Yet when it comes to erotic fare, the courts suddenly seem
willing to revive bad tendencies. Last year, in City of Erie v.
Pap's A.M., the Supreme Court affirmed a municipal statute banning
nudie bars on the grounds that such businesses encourage all manner
of perversions, from drunken tomfoolery to sexual assault. Critics
have termed this viewpoint the "secondary effects" principle--too
many strippers in town, and sooner or later the customers will
devolve into rapacious felons.
The rationale behind Dalton's prosecution was an extension of
that principle. The diary entries were a kind of pedophilic gateway
drug, bound to lead to actual molestations. Dalton's journal
writings were "like making drugs at home, or sawing off your own
shotgun, or growing your own marijuana," Bruce Taylor, president of
the National Law Center for Children and Families, told NPR last
month.
That mind-set terrifies Amy Adler, an NYU law professor who's
written extensively on pornography and the First Amendment. "One
principle is that you can't criminalize people for having bad
thoughts or creating material that will induce others to have bad
thoughts," she says. "I think we're beginning to see some corrosion
of that principle in our anguish over the crime being committed
against children."
These newfangled crimes, preemptive strikes against future
incidents that may never occur, are not confined to the realm of
pedophiles. The post-Columbine infatuation with "zero tolerance" has
spawned an array of on-campus thought crimes. In March, for example,
a Bunnell, Florida, fourth-grader was suspended for simply drawing a
laser-brandishing stick figure--a rendering far less violent than
most G.I. Joe fans produced during their grade-school artistic
heydays.
David Goldberger, an Ohio State University law professor, cites
Dmitry Sklyarov as another victim of the "Keep your thoughts to
yourself" attitude, albeit a bit more tangentially. A Russian
computer programmer, Sklyarov made the inexcusable faux pas of
outsmarting an American corporation--he figured out how to crack the
encryption on Adobe eBooks software. While lecturing in Las Vegas
this July, Sklyarov was arrested under the controversial Digital
Millennium Copyright Act, which forbids the ''manufacture of
products that circumvent copyright safeguards."
"I think there's certainly a willingness to exaggerate harms, or
a tendency to exaggerate harms, with the result that the products of
individual thoughts become targets for prosecution," says
Goldberger, who tried the infamous Skokie neo-Nazi case for the
ACLU.
Pornography remains the most obvious battleground, and it is a
legal tussle over a federal anti-obscenity law, the Child
Pornography Prevention Act (CPPA), that will determine whether the
thought-crime fad waxes or wanes. The CPPA, passed by Congress in
1996, bans the creation or possession of "virtual" kiddie porn,
particularly computer-fabricated images that depict young-looking
figures in sexual situations. Merely sketching out some naughty
caricatures on one's PC could be enough to merit prosecution, if
local authorities judge the drawings contrary to community
standards.
Loath to seem supportive of pedophiles, few civil rights types
have vocally opposed the CPPA's criminalization of make-believe.
Filling the activist vacuum, however, has been another outcast
clique--adult entertainers. Last year the industry's primary trade
group, the Free Speech Coalition, convinced the Ninth Circuit Court
of Appeals to void a portion of the CPPA as unconstitutional. The
Justice Department appealed, and the Supreme Court will hear the
case in mid autumn.
"The people in support of the CPPA say a pedophile might take
that drawing and show it to a child and say, 'See how much fun this
is?'"says the coalition's lead counsel, Louis H. Sirkin, who also
defended photographer Robert Mapplethorpe during his landmark
obscenity fight with Cincinnati. "Well, I could also show a portion
of West Side Story to a child and say, 'See how much fun it is to be
in a gang?' "
If the Supreme Court should overturn the Ninth Circuit's
decision, Sirkin dreads a chilling level of government meddling.
"You can carry the concept to extremes and say it's unhealthy for
teenagers to see a virtual murder, that it's unhealthy for them to
watch something like The Godfather or Pulp Fiction," he says.
One potentially dicey case is that of American Beauty, in which
actress Mena Suvari bares her chest while playing an underaged
temptress. That Suvari was over 18 could be immaterial--the
filmmaker's intent to depict a naked high schooler would be all that
mattered. Even had director Sam Mendes made the movie on his bedroom
Macintosh, using nothing but computer-generated figures, and shown
it to no one, he might still face criminal charges. All it would
take is an ambitious prosecutor hankering for publicity.
A Free Speech Coalition victory, on the other hand, would strike
against the notion of secondary effects, and make it far easier for
civil libertarians to challenge statutes similar to Ohio's. Dalton's
parents, guilt-ridden over their well-intentioned betrayal, hope
their son will get a shot at treatment in lieu of jail. But Dalton's
chances of leaving state custody before 2008 seem slim. As part of
his plea agreement, he waived his right to an appeal; he was afraid
that his perversions would be publicized at trial, thereby
embarrassing his family. His attorney has filed a request to change
his plea to no contest, but such motions are rarely granted.
The sad irony of Dalton's predicament is that, if placed in
treatment rather than prison, he likely would have been encouraged
to confront his demons in writing. As writer Joe Loya noted in a Los
Angeles Times op-ed on the case, "To write out fantasies in order to
avoid creating real victims is therapy, not pornography." Ohio's
message to the sick is clear, and troubling: Bottle up your wicked
thoughts, or risk hearing a knock on your door.