In its house editorial yesterday criticizing the Supreme Court’s child-pornography ruling, the New York Times asserts that the ruling

creates a bizarre contradiction. Fake child pornography is protected, but marketing fake child pornography is not. As Justice David Souter noted in dissent, it makes no sense to criminalize proposing to sell items that are themselves constitutionally protected.

The Times’s editorialists fail to acknowledge, much less grapple with, the majority opinion’s response to this objection:

[A]n offer to provide or request to receive virtual child pornography is not prohibited by the statute. A crime is committed only when the speaker believes or intends the listener to believe that the subject of the transaction depicts real children.… Simulated child pornography will be as available as ever, so long as it is offered and sought as such, and not as real child pornography.… We fail to see what First Amendment interest would be served by drawing a distinction between two defendants who attempt to acquire contraband, one of whom happens to be mistaken about the contraband nature of what he would acquire. Is Congress forbidden from punishing those who attempt to acquire what they believe to be national-security documents, but which are actually fakes? To ask is to answer.

(Interested readers will find the back-and-forth between the majority and the dissent on this point on pages 17-18 of the majority opinion and pages 10-13 of the dissent.)

As is generally the case, the Washington Post house editorial (emphasis added) displays far better sense than the Times’s:

By narrowly targeting only those who have or purport to have images of real children, lawmakers not only averted constitutional problems but also sought to quash demand for such material.… The court’s decision to approve the Protect Act gives law enforcement officials a powerful tool to combat the scourge of child pornography that has only grown since the advent of the Internet.

As, of course, does NRO in its excellent editorial today.