A child porn conviction ought to lead to lack of privacy

Tuesday, August 7, 2001 at 1:00am

With even George Will and the Family Research Council predicting the child pornographer in Ohio will prevail on appeal, I am now officially the only person in America who says Ohio wins. (Other than, one hopes, the prosecutor.)

Convicted child pornographer Brian Dalton was charged with pandering child pornography on the basis of his private writings in a personal journal in his home. He pled guilty, which normally precludes appeal and may prevent me from collecting on my bets.

Point one: The states can do anything that isn't prohibited by the Constitution. (This elusive concept is admittedly difficult to grasp, especially if you are a Supreme Court justice and prefer to think of yourself as czar of the Universe.) If a state wants to outlaw artichokes, it can, unless the artichoke is actually, say, a gun, in which case it is constitutionally protected. Thus, the only question is whether Dalton's private journal is protected by the First Amendment.

Dalton insists he had no intention of sharing his journal with his pederast friends. It was for his eyes only. This point has great emotional appeal but throws into doubt whether Dalton's journal qualifies as "speech." To whom was he speaking? The reason burning an American flag is protected speech is that the First Amendment protects communication, not mere words.

If Dalton's journal was intended solely for his own individual pleasure, it's not apparent why it should have any greater constitutional significance than a blowup doll. The whole point of the First Amendment is communication

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