Bush to Fight Porn Ruling

The Bush administration and congressional leaders, squaring off angrily against the Supreme Court over what constitutes child pornography, sought Wednesday to create a new standard that would ban as obscene any sexual imagery involving pre-pubescent children.

The federal government has never sought to distinguish between younger and older children in attacking child pornography, officials said, and the new definition could give lawmakers a way to circumvent a Supreme Court decision last month concerning the issue. It would outlaw the peddling of sexual imagery--even the “virtual,” computer-generated variety--if it includes children who have not reached puberty.

The high court ruled April 16 that Congress went too far in a 1996 anti-child pornography bill by outlawing imagery of computer-created children engaged in sex, as well as films and photos depicting adult actors who appear to be children. The court, in striking down part of the law, said such images are protected by the 1st Amendment.

A bipartisan group of lawmakers, joined by Atty. Gen. John Ashcroft, proposed a new version Wednesday of the anti-child pornography measure that seeks to put modified restrictions in place while staying within the limits set by the Supreme Court.

At the same time, backers of the bill--including Republicans often in harmony with the conservative-leaning high court--unleashed an unusually fierce attack accusing the justices of aiding child pornography.

Joining Ashcroft at a news conference, Rep. Mark Foley (R-Fla.) said the Supreme Court is “siding with pedophiles over children.” House Majority Whip Tom DeLay (R-Texas) said the ruling was “a huge disappointment to everyone working to protect children.”

The debate pits the Bush administration against the judiciary branch once again on an emotional issue in which Ashcroft is seeking to claim the moral high ground. Two weeks ago, the issue was assisted suicide, as a federal judge in Oregon ruled that Ashcroft had overstepped his authority in attempting to sanction doctors there who prescribe lethal drugs under the state’s landmark assisted-suicide law. The administration is threatening to appeal.

In 1996, Ashcroft, then a Missouri senator, was a key backer of the Child Pornography Prevention Act, and he and other Justice Department officials maintain that the Supreme Court’s ruling already is making it more difficult to pursue cases of sexual abuse against minors involved in pornography.

Ashcroft said the Supreme Court’s ruling comes at a time when child pornography “is exploding on the Internet.” A recent federal crackdown uncovered more than 7,200 alleged child pornographers offering sexual images on a single Internet group. That case involved 48 children who allegedly were molested, he said.

The legislation proposed Wednesday allows criminal charges against anyone who knowingly possesses “a visual depiction that is, or is virtually indistinguishable from, that of a pre-pubescent child engaging in sexually explicit conduct.”

This bill would narrow a ban in the 1996 law on virtual pornography involving all minors, regardless of how young they were.

The new legislation defines “pre-pubescent” as any child who “does not exhibit significant pubescent physical or sexual maturation.” The bill does not give an age range, but Justice Department officials said they generally considered it to be under the age of 12.

The pre-pubescent ban seeks to exploit an exemption in last month’s Supreme Court ruling for truly obscene works, which the court said can be prosecuted as a crime because obscenity is outside the protections of the 1st Amendment.

Justice Department officials said the new focus on pre-pubescent children avoids the constitutional pitfalls of the earlier legislation because they considered any sexual imagery involving younger children to be “per se obscene.”

But free speech advocates and adult entertainment industry officials said they would likely challenge this concept because it would significantly expand the Supreme Court’s 1973 definition of obscenity as a work that is sexually graphic, “patently offensive,” and lacking any other redeeming value.

“There is no such thing as ‘per se obscenity,’ until a court defines something as obscene,” said Marvin Johnson, legislative counsel for the American Civil Liberties Union in Washington.

“This bill still looks like it’s trying to outlaw virtual child pornography, and I’m not sure this is going to pass legal muster, since the court has already ruled on that issue,” he said.

Johnson said that, under the new definition, information or images involving a young child in a psychology manual about sexual abuse could be illegal.

Jeffrey Douglas, chairman of the Free Speech Coalition Inc., an adult-industry trade association that brought last month’s Supreme Court case, said a depiction of Russian novelist Feodor Dostoevski’s “The Possessed,” featuring the suicide of a man who was molested as a child, also could be banned.