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The Truth About Amazon, Kids and Free Speech

A new publication entitled "The Pedophile's Guide to Love and Pleasure: A Child-Lover's Code of Conduct" recently made its way onto the bestseller list, in part because when Amazon.com decided to sell it, the public's rage-filled reaction caused even MORE publicity. Not so ironic, I know.

At the risk of fueling more attention, there is an interesting debate buried in the abstract muck and mire of this most grotesque of subject matters.

Free speech principles sit at the top of the list of the Bill of Rights for a reason. A healthy democracy cannot survive if people are denied the ability to express ideas -- especially discontent regarding the actions of government. This is why political speech tends to receive the strongest legal protection. Openness and dissenting views ABOUT the government provide necessary balance between the power of the state and the freedom of individuals.

Free speech in other contexts is also important, but not in the same way. For example, restraining people from yelling "fire" in a crowded theater does no harm to principles of democracy, while providing protection for people's freedom from the threatened harm of being trampled.

Speech that constitutes "advocacy" to promote certain behavior can also be restrained in certain circumstances. In the famous "Brandenburg" case, the U.S. Supreme Court characterized the test this way: It is constitutionally permissible to restrain "advocacy" speech if it is directed as "inciting or producing imminent lawless action and is likely to incite or produce such action."

Lots of people have argued that "how to" books don't incite "imminent" lawlessness. And in some jurisdictions federal judges have agreed with this point of view. For example, in Massachusetts, the North American Man-Boy Love Association (NAMBLA) was sued for providing guidance to two men who raped and killed a little boy named Jeffrey Curley. The case was ultimately dismissed. Who knows whether money changed hands in a secret settlement but protecting NAMBLA-like materials is almost a sport in a crazy state like Massachusetts where anything goes, so long as it promotes a liberal ideology. Children's well-being de damned.

The U.S. Supreme Court would likely have overturned a pro-NAMBLA ruling from a Massachusetts federal court in light of its reaction to a similar kind of case from the Fourth Circuit which ruled that a man who wrote a "how to" guide book for "hit men" could be prosecuted for aiding and abetting murder. The court held in the Rice decision that the book "incited" lawless action, even though it produced no "imminent" threat. In 1998, the United States Supreme Court allowed the Fourth Circuit's decision to stand.

In light of the "Rice" case, a child molester's "how to" book is NOT "clearly" protected speech, as has been suggested by most pundits and legal analysts offering commentary on this story. Such a book is easily compared to the "hit men" guide book in that it "incites" lawless action against children. 

One could argue that a child abuser's manual is entitled to even less free speech protection than a "hit men" guide because children are a special class of citizens, uniquely defenseless because of their age and because they lack political and economic power. 

The law has long crafted special exceptions to protect children, even in the context of First Amendment rights. For example, while adult pornography is legal, child pornography is not. In fact, the Supreme Court took extra measures to protect children by declaring that child pornography is not even "speech." Thus, there's no need to debate whether an exception, such as the "incitement" rule, should apply. That child pornography does not even enjoy the basic respect of being called "speech" shows how strongly the Supreme Court feels about the harm done to children by sexual abuse.

Makes a gal wonder why the people running Amazon seem to have a different "feeling" about children.

The company intially claimed it sold the self-published "guide book" in its online bookstore because of its principled opposition to censorship. According to the Christian Science Monitor, "Amazon's first response was a statement declaring that, 'Amazon believes it is censorship not to sell certain books simply because we or others believe their message is objectionable. Amazon does not support or promote hatred or criminal acts, however, we do support the right of every individual to make their own purchasing decisions.'"

Because too many companies like Amazon put profits ahead of safety, especially the safety of vulnerable kids, Congress should get off its butt and change the law that insulates Internet host sites from liability for unlawful content. ISPs like Amazon claim liability exposure is unnecessary to protect the public because they effectively self-regulate by having rules in place for users, and "terms of service" contracts, that forbid the posting of certain kinds of offensive content. -- If that were true, the child molester's guide never would have made its way out of the creepy basement or similar location where it was created.

There is one section in the guide book, however, that I actually like. It talks about how the word "pedophilia" literally means "child love." This is true. "Pedo" means "child" and "philia" means "love." It's hardly a reason, though, to celebrate the sexual abuse of children by using this word. As we know, the ancient definition of what should more rightly be termed "child rapist" was coined during a time when we thought watching lions eat humans was a barrel of fun. And...it was probably crafted by a guy who wanted to insulate himself from societal shame and punishment while making himself feel better as he destroyed children's bodies and minds. 

Nonetheless, I think it's time to change the word -- just in case a few lingering Neanderthals think the definition gives them license. Here's my suggestion: How about "Pedozimia"? It means "child hatred." Perfect.

Speaking of hatred, child predators should beware that if parents have no choice but to tolerate laws that will not protect their children from threatened violence by dangerous predators, they will take matters into their own hands. -- They will teach each other all the strategies they need to ensure their children are safe. So if someone doesn't take legal action AGAINST the "pedophile" guide book, don't be surprised if bookstores soon start selling titles like this: "A Parent's Guide to How to Rape Sexual Predators With a Pitchfork." 

I hope you just recoiled from the shock of reading that sentence. That was my point. Free speech is a two-way street.

Wendy Murphy is a former prosecutor and law professor at New England Law|Boston. A former Visiting Scholar at Harvard Law School, Wendy specializes in the representation of crime victims and is the author of "And Justice For Some."