‘Virtual’ Child Porn Is Legal, Court Says

A federal appeals court in San Francisco struck down a major section of the federal law against child pornography Friday, ruling that the government cannot prohibit computer-generated sexual images that only appear to be pictures of children.

Federal law enforcement officials quickly expressed fear that the ruling could significantly hamper their efforts to combat child pornography. And within hours of the court’s decision, federal prosecutors announced that because of the ruling, they would release Patrick J. Naughton, a former Internet executive with Walt Disney Co.’s Go.com site who was convicted on Thursday of possessing child pornography.

Although Naughton was accused of possessing pictures of actual children, the U.S. attorney’s office decided to release him on $100,000 bail until the impact of the court’s ruling can be sorted out. He is expected to be released Monday.

The 2-1 decision by the U.S. 9th Circuit Court of Appeals, which has jurisdiction over federal courts in California and eight other Western states, upheld much of the 1996 Child Pornography Protection Act but ruled that applying it to “virtual pornography” would violate the Constitution.

“The 1st Amendment prohibits Congress from enacting a statute that makes criminal the generation of images of fictitious children engaged in imaginary but explicit sexual conduct,” Judge Donald W. Molloy wrote in the court’s opinion.

Two other federal appeals courts--in Atlanta and New York--have upheld the anti-pornography law, making it likely that the current ruling will eventually be reviewed by the U.S. Supreme Court.

Molloy and Judge Sidney Thomas, who joined him in the majority, brushed aside arguments that even virtual pornographic images could harm children by encouraging pedophiles.

While agreeing that child pornography is repugnant, the two judges declared that the government has “no compelling interest in regulating sexually explicit materials that do not contain visual images of actual children.”

That position prompted a stinging dissent from Judge Warren Ferguson, a veteran liberal member of the appeals court.

“Congress has provided compelling evidence that virtual child pornography causes real harm to real children,” Ferguson wrote. “As a result, virtual child pornography should join the ranks of real child pornography as a class of speech outside the protection of the 1st Amendment.”

The biggest concern for law enforcement officials and their allies is that the ruling places on the government the burden of proving that an actual child was used in creating pornographic images. That task is bound to become increasingly difficult because modern graphics technology makes manipulating images easy, law enforcement officials said.

The decision comes at a time when the number of investigations for Internet-related child pornography is soaring. The FBI launched about 1,125 such inquiries this year, more than twice as many as last year.

The court’s ruling could threaten enforcement of all child pornography laws “because if you can’t tell when a picture was generated by a Polaroid or a PC, there could be reasonable doubt” on the side of a defendant in a criminal trial, said Bruce Taylor, president and chief counsel of the National Law Center for Children and Families in Fairfax, Va.

Although computer-generated and computer-enhanced child pornography remains fairly uncommon, the ruling all but invites the creation of more such material because it will now be legally protected, officials said.

If computer-generated images of child pornography are legal on the Internet, said Kevin Delli-Colli, director of the U.S. Customs Service’s Cyber-Smuggling Center in Fairfax, Va., “it’s going to put a big burden on law enforcement.”

But the judges in the majority said that to put the burden of proof on the creators of the images would turn 1st Amendment law on its head.

“Synthetic” child pornography, as some call it, is increasingly easy to create because of advances in computer technology, experts said.

For a long time, powerful graphics technology was confined to high-end Hollywood production studios that created movies such as “Jurassic Park,” a film that featured computer-generated dinosaurs.

But such technology is increasingly making its way into the hands of everyday consumers. And millions of computer owners now use their PCs to process and manipulate photos taken on digital cameras.

“Even if the pedophile fools around with an image just a little bit, it makes it that much more difficult for a jury to determine whether you really have child porn,” said Bob Flores, vice president of the national law center.

But the court majority asserted that even under its ruling, some types of virtual child pornography could still be subject to prosecution. “If morphed computer images are of an identifiable child, the statute is enforceable because there is then the potential for harm to a real child,” Molloy wrote.

The essential problem with the law, he said, was language making it a criminal offense to possess a picture that “appears to be a minor” or “conveys the impression” of a child. That language is so vague as to be constitutionally void, the judges ruled.

The law would improperly allow “images that are, or can be, entirely the product of the mind” to be the cause for a criminal prosecution, Molloy wrote.

The earlier appeals court rulings upholding the anti-pornography law stemmed from criminal prosecutions in which it was clear that children had been used in generating the images in question, said attorney H. Louis Sirkin of Cincinnati, who represented the Free Speech Coalition, a Chatsworth-based national trade association of creators and purveyors of adult entertainment.

Also challenging the law were Bold Type Inc., an Emeryville, Calif., publisher of a book “dedicated to the education and expression of the ideals and philosophy associated with nudism”; Ron Rafaelli, a California photographer whose works include nude and erotic photos; and Jim Gingerich, a New York artist who paints large nudes.

Sirkin said he and his clients had no quarrel with the rulings by the other appeals courts.

“We were very narrow in our attack; we were not saying the whole law should be thrown out,” he said. “The adult industry and the Free Speech Coalition do not support or endorse or condone kiddie porn. We were concerned that where real children were not involved that artistic endeavors would be hindered.”

William Bennett Turner, a San Francisco attorney who filed a friend-of-the court brief for the American Civil Liberties Union challenging the statute, also applauded Friday’s ruling. “The fact that Congress can regulate child pornography does not mean that they can outlaw all kinds of art and film and plain old pornography using adults who appear to be young,” Turner said.

Friday’s ruling overturned a decision upholding the 1996 law by U.S. District Judge Samuel Conti in San Francisco. The case is the Free Speech Coalition vs. Janet Reno, No. 97-16536.