Emory Law Journal

Volume 68Issue 5
The 2018 Randolph W. Thrower Symposium -- Sex Crimes in the 21st Century: Human Trafficking, Pornography, and Prostitution

Church, State, and Sex Crimes: What Place for Traditional Sexual Morality in Modern Liberal Societies?

John Witte, Jr. | 68 Emory L.J. 837 (2019)

Historically, sexual morality and criminal law overlapped, and churches and states enforced sundry sex crimes. Today, new constitutional liberties and new reforms to family law and criminal law have dramatically reduced the roll of sex crimes and the roles of churches in maintaining sexuality morality. But sexual misconduct remains a perennial reality in modern societies, including notably within churches, and sex crimes inflict some of the deepest scars on their victims. Modern liberal states must thus maintain a basic standard of sexual morality in its criminal law as a restraint on harmful behavior and as a bulwark against a sexual state of nature where life is often “brutish, nasty, and short” for the most vulnerable. And liberal societies should encourage its citizens and churches to pursue a higher morality of aspiration that views sex and the sexual body as a special gift for oneself and others.

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The Problems with Pornography Regulation: Lessons from History

Thomas C. Arthur | 68 Emory L.J. 867 (2019)

A growing new anti-pornography movement has arisen in reaction to the ready availability of pornography on the Internet. It seeks stricter legal prohibitions on “obscene” materials, even when viewed in private homes, and greater enforcement of existing laws. History demonstrates that these proposals are unsound for three reasons. First, “obscene” pornography is difficult to define without violating the First Amendment. Second, Prohibition demonstrates the difficulties of laws depriving citizens of goods that they desire on moral grounds they do not share. Censorship of online pornography would present similar problems. Third, any broader definition of obscenity would be inconsistent with basic First Amendment principles and a dangerous precedent for other restrictions on currently protected expression. Enforcing such a sweeping suppression on what even adults may watch in the privacy of their homes would be radically inconsistent with our liberal democracy.

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Changing Faces: Morphed Child Pornography Images and the First Amendment

Stacey Steinberg | 68 Emory L.J. 909 (2019)

In response to the changing face of child pornography and the harms associated with it, Congress enacted the PROTECT Act. Despite this effort to protect children’s images online, there remains much to be done. First, the Supreme Court must uphold the PROTECT Act, finding morphed child pornography outside the scope of the First Amendment. Second, states must amend their statutory definitions of child pornography to encompass morphed child pornography. Lastly, parents must be cognizant of the risks associated with oversharing pictures, as online images can be stolen and then used for illicit purposes such as morphing. These cogent paths forward can offer meaningful legal and social benefits to victims and potential victims of child sexual abuse and to children who suffer violations of their online privacy.

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Therapeutic Expression

Jennifer Kinsley | 68 Emory L.J. 939 (2019)

This Article explores the relationship between free speech and harm. Examining the historical First Amendment justifications, it argues that harm is a relevant criterion in determining the scope of speech protection. But this Article also resists the notion that speech should be restricted solely based upon resultant damage, demonstrating instead that the freedom to speak freely actually forestalls rather than causes individual and societal harm. Drawing upon psychological and sociological theories related to the treatment of sex offenders, the Article posits that the ability to engage in free expression is critical to preventing physical and emotional damage to others. Individuals who have the ability to speak freely about their emotions, opinions, and identities are less likely to engage in rebellion, aggression, and crime. In this way, free speech provides a therapeutic alternative to harmful behavior. These therapeutic qualities of expression provide a justification for protecting rather than silencing it.

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