New Bill Targets ‘Virtual’ Child Porn

Responding to a Supreme Court ruling that voided key provisions of a 1996 law banning “virtual” child pornography, Congress and the White House are trying once again to crack down on the manufacture and sale of sexual images of children.

The Senate on Monday unanimously approved a new version of the law that attempts to answer the Supreme Court’s ruling that the government cannot make it a crime to show sexual images that only “appear to be” children.

The bill, dubbed the Protect Act, stands a good chance of becoming law. It now moves to the House and is strongly supported by the Bush administration. But whether it would survive another court challenge remains uncertain.

The original law, enacted by a Republican-led Congress with the approval of then-President Clinton, made it a crime for anyone to sell or own computer-generated pornographic images of children -- including any “visual depiction that is, or appears to be, a minor engaging in sexually explicit conduct.”

But the high court, in a 6-3 ruling in April 2002, found that provision and other parts of the law violated the 1st Amendment. The court majority said it was acting to safeguard the rights of legitimate artists and entrepreneurs who might create or sell images that do not feature real children.

The ruling created an immunity for “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.

The ruling hobbled many child pornography prosecutions around the country and created an instant bipartisan outcry for a legislative fix.

Lawmakers said the court ruling had given a green light to pornographers who are now exploiting real children, but passing off their work as fabricated through computers or other means.

The bill would create a new definition of a minor identifiable in pornographic images as one “virtually indistinguishable” from an actual child -- exempting drawings, cartoons, sculptures and the like.

Under the bill, defendants in criminal pornography cases could be exonerated if they can show that they did not use real children to produce the images, which would shift the burden of proof from prosecutors.

The bill would also add a new criminal offense for certain child pornography classified as obscene -- and thus stripped of many free-speech protections--and would allow civil claims for damages against those who traffic in child pornography.

One legal advocate for free speech and Internet privacy cautioned that Congress and the White House face scrutiny over the constitutionality of any new law. Lee Tien, a senior staff attorney for the San Francisco-based Electronic Frontier Foundation, said that any attempt by the government to require alleged child pornographers to prove their innocence would be closely examined by courts.

“You cannot get around a Supreme Court decision and the 1st Amendment simply by changing the burden of proof if that would actually end up depriving the defendant of the right they’re supposed to have,” Tien said.

In acting on the new legislation, the Senate temporarily set aside the battle between Democrats and Republicans over President Bush’s controversial nomination of Miguel A. Estrada to a federal appellate court.

Sens. Patrick J. Leahy (D-Vt.) and Orrin G. Hatch (R-Utah), antagonists in the Estrada dispute, joined to push through the child pornography bill.

“It is a good-faith effort to provide powerful tools for prosecutors to deal with the problem of child pornography within constitutional limits,” Leahy said.

Hatch added: “This problem is intolerable, and it demands our immediate attention.”

The Bush administration has given the bill momentum.

Atty. Gen. John Ashcroft, who as a U.S. senator in 1996 backed the original law, is now pushing for a legislative response to the Supreme Court ruling.

“Passage of the bill would be an important step in protecting children from abuse by ensuring effective child pornography prosecutions,” the White House said Monday in a statement of administration policy.