With Ken Klukowski

The child porn allegations made against MTV for its “Skins” show must be investigated by the Obama Justice Department. Child Pornography is not protected by the First Amendment, and producing child porn is a crime. Whether these allegations are true or not, even allegations of it are something most responsible businesses don’t want to be associated with, and they’re chasing advertisers away from this latest attempt to redefine what’s allowed on television.

The latest TV scandal is over MTV’s new show, “Skins.” The show casts child actors (not adults who play children on camera) with a plot where kids are involved in drugs, sex and reportedly even prostitution. It’s pushing the envelope in terms of coarsening society, evidently going for the shock value of being one of the edgiest shows on cable television.

But MTV might be in colossal trouble, because “Skins” is being accused of involving child porn. Child pornography laws don’t just cover explicit sex between children. Among other things, they include simulated sexual conduct by minors. If the actors were actually adults who just looked young, then the Supreme Court says child porn laws would not apply. But because the actors are really children, if they’re depicted in sexual acts then MTV has crossed the line.

It’s beyond dispute that the child actors are pretending to have sex in this show. The question becomes whether it’s graphic and explicit enough to fall within child pornography statutes, since those statutes don’t require actual and full-view sex. If so, then this is a crime that must be investigated by the U.S. Department of Justice.

In the 1982 case New York v. Ferber, the Supreme Court explains that there are reasons child pornography is unprotected by the First Amendment. Unlike adults making pornography, children by definition do not have the legal capacity to consent to a contract, such as contracting to have sex on camera. Once the pornography is produced and distributed, it can never be completely recalled, so those pornographic visuals can haunt that child for the rest of his or her life. It is inherently exploitative, because a child lacks the mental and emotional maturity to consent to engage in sexual acts.

Only the Justice Department (DOJ) can investigate and enforce these laws. The FCC doesn’t have jurisdiction because this is cable TV; the FCC only has authority over radio and broadcast TV. (Although the FCC doesn’t seem to hold this limitation in high regard, given its vote last month claiming the power to regulate the Internet. But Verizon has already appealed the FCC’s vote, and is very likely to win that lawsuit.)

The reason DOJ must be the one to pursue this matter is because these are alleged crimes. Most lawsuits are civil, where an injured party – usually a private citizen – can ask a court to force the defendant to redress the injury.

But a crime is something a legislature has defined as an injury to society. A criminal’s action harms our entire culture to the detriment of us all. A crime is an immoral action of such a nature that the people’s governmental prosecutors protect us all by punishing the wrongdoer. Only prosecutors can charge someone with a crime, so DOJ is the only entity that can pursue federal child pornography charges.

Not knowing the exact content of the questioned footage, we don’t yet know if these child pornography allegations are true. If so, those responsible must be prosecuted. If not, then MTV must be cleared any suspicion. But the allegations of child pornography at MTV are credible and serious, and as such Attorney General Eric Holder must launch an investigation. If he does not, President Obama should find someone who will.

Recent events show that we don’t need to wait on General Holder, however. Taco Bell has already decided to drop its advertising on “Skins.” While MTV is trying to find someone to fill the void, other advertisers are considering dropping the show as well.

Consumers can drive this show off the air in a hurry. Television is a business, existing to make money. Channels air shows that bring in advertising money to make the channel profitable. TV shows can’t survive without advertisers, because if no one supports a show with advertising dollars, then the channel will cancel the show and substitute a new one. If companies can tell that supporting a show turns off its customers, then that TV show won’t be on the air for long.

But it won’t let President Obama’s DOJ off the hook if “Skins” goes off the air. Child pornography is one of the most serious types of crime. It perverts the most intimate human activity.  This particular type of corrupting sexuality permanently damages children in a terrible fashion that’s toxic to our culture.

Attorney General Holder must examine what’s happening at MTV. We should all put on the pressure to ensure that he does.