Ban on ‘Virtual’ Child Porn Is Upset by Court

In a surprisingly strong defense of the right to free speech, the Supreme Court on Tuesday struck down part of the federal child pornography law that makes it a crime to sell or own images of computer-created children engaged in sex.

The justices also said the 1st Amendment shields films and photographs that show adult actors who “appear to be minors” involved in sex.

In both instances, the court said, in a 6-3 vote, that Congress had gone too far in a laudable effort to stamp out child pornography.

“The sexual abuse of a child is a most serious crime, and an act repugnant to the moral instincts of a decent people,” said Justice Anthony M. Kennedy.

But no real children were portrayed in the photographs and films at issue in Tuesday’s decision, he said. The government cannot make it a crime to show sexual images that only “appear to be” children without threatening legitimate filmmakers, photographers and advertisers, he said.

Award-winning Hollywood films such as “Traffic” and “American Beauty” could be subject to prosecution, Kennedy said, if the law were applied literally. Those films contain scenes of sexuality featuring adult actors portraying underage characters.

Tuesday’s ruling creates an immunity for a new generation of “virtual” pornographers who rely entirely on computer images. So long as no real children are portrayed--or “morphed” into a sex scene--the image, film or photograph cannot be prosecuted as child pornography, the court said.

There is one exception. A truly obscene work can be prosecuted as a crime, the court noted, since obscenity is outside the protections of the 1st Amendment.

But it is hard to win an obscenity case, and prosecutions are rare. To win such a case, the government must convince a jury that a film is sexually graphic, “patently offensive” and lacks any other redeeming value.

Atty. Gen. John Ashcroft condemned the court’s ruling, saying it would make the prosecution of child pornography “immeasurably more difficult.”

Where possible, the attorney general said prosecutors will “pursue general obscenity charges” against virtual child pornographers.

“I am committed to working with the Congress to develop strong measures to fight child pornography that will survive judicial scrutiny,” he added.

Lott Sees Attempt to Change the Law

Senate Minority Leader Trent Lott (R-Miss.) said an effort will be made to revise the law so that it passes constitutional muster. “Clearly there is a desire and a need to have laws on the books in that area,” he said.

Ashcroft, then a senator from Missouri, was among the lawmakers who pressed for the passage of the Child Pornography Prevention Act in 1996.

That measure broadened the definition of child pornography to include any “visual depiction that is, or appears to be, a minor engaging in sexually explicit conduct.” Moreover, visual depiction was redefined to include a “computer-generated image or picture.”

Lawmakers were determined to bring the full weight of federal criminal law against those who used new computer technology to create realistic images of children and teenagers engaged in sex acts.

These images were offensive in themselves, they said, and could be used to “whet the appetites of pedophiles and child sexual abusers.” A first-time offender could receive up to 15 years in prison.

But the new law pushed the boundaries of the free-speech protections set by the Supreme Court.

In the past, in opinions written by the late Justice Byron R. White, the court said that all child pornography could be made illegal because it exploited children.

The Free Speech Coalition, a California trade association for the adult entertainment industry, went to federal court in San Francisco to challenge the new law on the grounds that real children were not being exploited.

Photographers, filmmakers and bookstore owners joined the challenge and claimed they feared possible prosecution over depictions that might be seen as involving minors.

A federal judge rejected their claim as farfetched, but the U.S. 9th Circuit Court of Appeals agreed with it on a 2-1 vote. The law cannot make it a crime to show “images of fictitious children engaged in imaginary” sex acts, the panel said.

The Supreme Court took up the government’s appeal in the case of Ashcroft vs. Free Speech Coalition, 00-795, and in an unexpected move, affirmed the ruling of the 9th Circuit.

Kennedy said that at least since the days of William Shakespeare and his “Romeo and Juliet,” the romances of the young have been a recurring theme in literature, drama and movies.

“The visual depiction of an idea--that of teenagers engaging in sexual activity--is a fact of modern society,” he wrote. If prosecutors were free to bring criminal charges in all such cases, it would certainly chill filmmakers and photographers, he said.

Pedophile Argument Is Dismissed

In truth, the Justice Department was not likely to bring charges against a Hollywood film studio. But the Supreme Court regularly strikes down laws that infringe on freedom of speech, even if no prosecutions were brought.

Kennedy also rejected the government’s argument that virtual child pornography can be banned because it is used by pedophiles to lure children into sexual activity. “There are many things innocent in themselves, such as cartoons, video games and candy, that might be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused,” he wrote.

He stressed, however, that the government remains free to prosecute those who make, sell or own sexually explicit images of real children that are “morphed” into sex scenes. The 1996 law also prohibits images that are “adapted or modified” so that it appears a minor is engaged in sex, and that portion of the law went unchallenged.

But federal prosecutors feared that they will have a hard time proving that children portrayed on an Internet sex site, for example, are real children and not computer-created images. In the end, the Supreme Court’s opinion does not answer that concern.

Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined Kennedy’s opinion.

Justice Clarence Thomas concurred in the result and said the government can still bring successful prosecutions by showing real children were involved.

Rehnquist, Scalia Back Narrow Reading

Justice Sandra Day O’Connor agreed the law went too far by covering young-looking actors in films. But she said she would have upheld the ban on computer-generated child pornography.

Chief Justice William H. Rehnquist and Justice Antonin Scalia dissented, saying the law should have been read narrowly and upheld.

In particular, the chief justice said that even after the law took effect filmmakers produced movies such as “Traffic” without apparent fear of criminal prosecution.

“The chill felt by the court has apparently never been felt by those who actually make movies,” Rehnquist said.

In Hollywood, the Directors Guild of America praised the decision. “From ‘Romeo and Juliet’ to ‘American Beauty’ and ‘Traffic,’ artists have told stories that included allusions of adolescent sexuality, stories which have enriched our lives,” said DGA President Martha Coolidge.

Coolidge, whose films include the teen comedies “Valley Girl” and “Real Genius,” said, “Every American would suffer the loss of freedom if this overzealous governmental intrusion into our rights of expression had been allowed to stand.”

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