Law Aimed At 'Virtual' Child Porn Overturned
High Court Calls Ban Too Broadly Worded
By Charles Lane
Washington Post Staff Writer
Wednesday, April 17, 2002
The Supreme Court struck down a federal ban on "virtual" child pornography yesterday, holding that the law was so broadly worded it would suppress not only images that harm children but also legitimate artistic or political expression.
At issue was a 1996 law aimed at cracking down on computer-generated child pornography by prescribing prison terms for those who distribute or possess images that "appear to be" of minors engaged in sexually explicit conduct, or who sell images by "convey[ing] the impression" that they contain child sex.
Writing for the majority, Justice Anthony M. Kennedy said that with such penalties "few legitimate movie producers or book publishers, or few other speakers in any capacity, would risk distributing images in or near the uncertain reach of this law. The Constitution gives significant protection from over-broad laws that chill speech within the First Amendment's vast and privileged sphere."
Kennedy cited as legitimate artistic expression that might have been deterred by the law such award-winning movies as "Traffic" and "American Beauty," which present sexual scenes involving minors -- and even some modern versions of Shakespeare's classic about two teenage lovers, "Romeo and Juliet."
Yesterday's decision showed that the court is willing to forge ahead with an expansive First Amendment doctrine even in a technologically novel context in which public sympathy for the rights of those seeking free expression is probably low.
Opposition to the Child Pornography Prevention Act (CPPA) spanned the court's ideological spectrum. Kennedy, a moderate conservative, was joined in his opinion by liberals John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Conservative Clarence Thomas wrote a separate opinion explaining his reasons for reaching the same conclusion as Kennedy. Sandra Day O'Connor, a moderate conservative, said she would strike down a portion of the statute.
Only Chief Justice William H. Rehnquist and Justice Antonin Scalia voted to uphold fully the contested provisions of the law.
"The aim of ensuring the enforceability of our nation's child pornography laws is a compelling one," Rehnquist wrote in a dissenting opinion joined by Scalia. "The CPPA is targeted to this aim by extending the definition of child pornography to reach computer-generated images that are virtually indistinguishable from real children engaged in sexually explicit conduct."
The CPPA, passed by a GOP Congress and signed by President Bill Clinton in 1996, represented the federal government's response to public concern that computer-imaging technology would enable pornographers to make images of real children but defend themselves in court by saying they were mere digital creations. Some 19 states, including Virginia, also have laws aimed at virtual child porn.
The court's decision was immediately lamented by both the Bush administration and by some on Capitol Hill.
Attorney General John D. Ashcroft, who made combating pornography a cornerstone of his tenure in the Senate, said yesterday that the ruling would make prosecutions "immeasurably more difficult."
He said that federal prosecutors would restructure current cases to avoid any conflicts, and vowed to work with Congress to devise new statutes "that will survive judicial scrutiny."
"This decision has set back years of work on behalf of the most innocent Americans," said Rep. Mark Foley (R-Fla.), co-chairman of the Congressional Missing and Exploited Children's Caucus. "Whether in movies or photographs, it doesn't make a difference whether or not the person engaged in sex is actually a child. If it looks like a child and is said to be a child, pedophiles have found their fix -- and their search for true child pornography will only be enhanced."
Civil libertarians and others applauded the high court's ruling as a defense of the First Amendment.
Yesterday's decision "sends a message that Congress may not overstep the boundaries the court laid out in distinguishing constitutionally protected speech from obscenity and child pornography that harms actual children," said Ann Beeson, a staff attorney for the American Civil Liberties Union.
H. Louis Sirkin, a Cincinnati attorney who represented the Free Speech Coalition, an organization of California adult-entertainment producers and video stores, said the ruling was a "reaffirmation of support for the First Amendment by the Supreme Court. The court is confining acts of Congress to actual criminal conduct and not the expression of ideas. People can still fantasize and still depict those fantasies visually and in writing."
The Free Speech Coalition was supported by friend-of-the-court briefs from such groups as the ACLU, the Society of Professional Journalists and the Institute for the Advanced Study of Human Sexuality.
Past court decisions had upheld laws banning obscenity, defined as sexual material that is presented "in a patently offensive way" and that lacks any "serious literary, artistic, scientific or political value." The court has also upheld bans on depictions of sex among actual minors, even if they are not necessarily obscene, on the grounds that real children are exploited in the process of producing such images.
But the Supreme Court said yesterday that virtual images of children engaged in sex, or of youthful-looking adults posing as minors, are neither produced by exploiting actual children nor necessarily meet the court's definition of obscenity. The government's argument that such images would fuel the demand for real child porn or indirectly promote pedophilia was "contingent and indirect," Kennedy wrote.
In dissent, Rehnquist objected that Congress had not intended the CPPA to cover movies such as "Traffic" and "American Beauty." He pointed out that both films had won Academy Awards after the CPPA's enactment, proving that the law had no real deterrent effect.
Sirkin noted, however, that the distribution in this country of a film version of Vladimir Nabokov's novel "Lolita," starring Jeremy Irons as a middle-age man who has sexual relations with a preteen girl, was delayed for several years by concerns that it would run afoul of the law.
One key provision of the CPPA does remain intact after yesterday's decision. That is the ban on "morphing," in which a pornographer takes a photograph of an actual child and manipulates it on a computer to make it appear that the child is engaged in sex.
The Free Speech Coalition did not challenge that part of the law, Sirkin said, because morphing "involves a real child" and could be seen as the kind of exploitation the court previously outlawed.
The case, Ashcroft v. Free Speech Coalition, No. 00-795, is one of two dealing with children and pornography that the court considered this term. The other, which the court has not yet decided, tests the constitutionality of a separate law that seeks to limit children's access to sexually explicit material on the Internet.
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