Justices to Tackle ‘Virtual’ Child Porn

The Supreme Court, entering the new world of “virtual” pornography, agreed Monday to decide whether the government can make it a crime to have or sell computer-generated images of children having sex.

Congress has tried repeatedly to stamp out child pornography of all sorts. Five years ago, it expanded the definition of illegal activity to include a “visual depiction [that] appears to be a minor” engaged in sex acts or “conveys the impression” of even “simulated” sex involving children.

The new law specifically includes “computer-generated images” among the prohibited depictions.

Prosecutors said the change is needed because of advances in computer imaging. As the dinosaur movie “Jurassic Park” demonstrated, computers can create images that appear to be real. This kind of pornography can whet the appetite of pedophiles, prosecutors said, and therefore is dangerous even if no real children are involved.

But a coalition of photographers, movie makers and producers of “adult-oriented materials” challenged the new law as unconstitutional. The coalition said its terms are so broad and vaguely worded as to include depictions of young actresses who are not minors and who are not engaged in actual sex.

The federal appeals court in San Francisco agreed on a 2-1 vote. The 1st Amendment prohibits the government from making it a crime to generate “images of fictitious children engaged in imaginary but explicit sexual conduct,” Judge Donald Molloy said.

He noted that the Supreme Court in the past has said that child pornography is not protected as free speech because it involves the sexual abuse of children. Although pornographic computer images are “unquestionably morally repugnant,” the judge said, they cannot be turned into a crime “when no actual children are involved.”

Government lawyers disagreed and urged the high court to revive the law against virtual porn. They said prosecutors would be hard pressed to win a conviction against a child pornographer if they must prove the illicit image is of an actual child. Moreover, they said, virtual porn “adds fuel to the underground child pornography industry.”

On Monday, the justices said they would hear the case (Reno vs. Free Speech Coalition, 00-795). The argument will not be heard until fall and, by then, the case name will be changed to reflect the Bush administration’s new attorney general.

In the meantime, prosecutors will be barred from bringing virtual-child pornography cases in California and the eight other Western states within the jurisdiction of the U.S. 9th Circuit Court of Appeals.

Producing or selling child pornography is punishable by as much as 15 years in prison. Possession of such pornography can lead to as much as five years in prison.

Meanwhile, the court agreed to take up two regulatory cases that will help determine whether many consumers will ever have access to competitive local phone service and high-speed Internet access via cable television.

Congress encouraged deregulation and competition through the Telecommunications Act of 1996 but, so far, the measure has produced mostly litigation.

Local telephone companies are required to lease their lines to potential competitors, but it is not clear how much those competitors must pay.

The Federal Communications Commission set rates for leasing the lines, but a federal appeals court struck down part of the rate-making rules last year.

On Monday, the Supreme Court agreed to hear appeals from all of the parties to the dispute, but it put off the argument until fall (Verizon Communications vs. FCC, 00-511, and others).

The second case concerns how much cable TV firms must pay to use the utility poles that can carry their new Internet lines into homes.

In the past, those rates had been regulated, and Congress hoped the new law would encourage cable TV firms to provide Internet competition to local phone carriers.

But another federal appeals court said that the rates for cable companies’ use of the utility poles no longer are regulated if they provide Internet service.

In the fall, the court will hear the appeals from the FCC and the cable industry in the case (National Cable TV Assn. vs. Gulf Power, 00-832)

In other actions, the court:

* Refused to hear pop singer Michael Bolton’s appeal of a $5.4-million jury verdict over his 1991 hit “Love Is a Wonderful Thing” (Bolton vs. Three Boys Music Corp., 00-689). He was sued for illegal copying by the Isley Brothers, who recorded a song by the same name in 1964.

* Agreed to decide whether employee health-care plans that pay for an accident victim’s medical claims can later recoup any money won by the victim in a lawsuit. Janette Knudson was left a quadriplegic after an auto accident, and her health plan paid $411,000 for her medical care. But when she won a substantial settlement from those responsible for the accident, her health plan sued to recover its payments (Great-West Life & Annuity Insurance Co. vs. Knudson, 99-1786).