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By David L. Hudson Jr.
First Amendment scholar

In 1996, Congress changed course in its efforts to combat child pornography when it passed a law that targeted so-called virtual child pornography — or computer-generated images of children engaging in explicit sexual conduct. In the past, laws had focused on the use of actual children in making, producing and distributing child pornography.

But Congress adopted the Child Pornography Prevention Act of 1996 — CPPA — to address concerns about advances in computer technology that make it more difficult for prosecutors to determine whether certain images are of an actual child or simply realistic images of fictional children. Congress heard testimony regarding “morphing” — where pornographers would download photographs of children from magazines and then transform them into sexual pictures.

The CPPA defined child pornography as:

“Any visual depiction, including any photography, film, video, picture or computer-generated image or picture … of sexually explicit conduct, where —

(A) the production of such visual depiction is, or, appears to be, of a minor engaging in sexually explicit conduct; (B) such visual depiction is, or, appears to be, of a minor engaging in sexually explicit conduct; (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or (D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaged in sexually explicit conduct.” — 18 U.S.C. Section 2256(8)

The Free Speech Coalition and others challenged the law in federal court in 1997. They challenged only the two subsections that contain the “appears to be” and “conveys the impression” clauses. The plaintiffs questioned those provisions because they allow people to be punished even if no actual children were involved in the creation, production or distribution of the material.

For instance, the law would theoretically punish producers of a movie that had a youthful-looking adult movie actor playing a child in a sex scene. Furthermore, the law would impose penalties on material that simply “conveyed the impression” through advertising that the material contained a minor engaged in sexually explicit conduct.

A federal district court upheld the law as a constitutional way to address the harms associated with virtual child pornography. A divided three-judge panel of the 9th U.S. Circuit Court of Appeals reversed that ruling, in Free Speech Coalition v. Reno, writing that “censorship through the enactment of criminal laws intended to control an evil idea cannot satisfy the constitutional requirements of the First Amendment.”

Meanwhile, several other federal appeals courts upheld the constitutionality of the CPPA in criminal cases. The government appealed the case to the U.S. Supreme Court. The Court took the case presumably to resolve the split in the circuits over whether the law was constitutional.

Ashcroft v. Free Speech Coalition
On April 16, 2002, the Supreme Court struck down both provisions at issue in Ashcroft v. Free Speech Coalition. The high court wrote that the challenged provisions of the CPPA prohibited material that was not obscenity or traditional child pornography under the Court’s 1982 decision New York v. Ferber. In Ferber, the high court defined child pornography as expression that involved the actual sexual abuse of children in its creation.

“In contrast to the speech in Ferber, speech that itself is the record of sexual abuse, the CPPA prohibits speech that records no crime and creates no victims by its production,” Justice Anthony Kennedy wrote for the majority. The high court noted that the language of the statute was simply too broad and would prohibit too much constitutionally protected expression, citing as possible examples the recent award-winning movies “Traffic” and “American Beauty.”

“There is no attempt, incitement, solicitation or conspiracy,” Kennedy wrote. “The Government has shown no more than a remote connection between speech that might encourage thoughts or impulses and any resulting child abuse. Without a significantly stronger, more direct connection, the Government may not prohibit speech on the ground that it may encourage pedophiles to engage in illegal conduct.”

Congress’ response: PROTECT Act
For more on Congress' attempt to outlaw virtual child pornography and the First Amendment implications of that new law — the PROTECT Act — see the analysis by Ambika J. Biggs.

Related

Under bill, children in pornography wouldn't have to be real

Ohio legislation would amend state law to mirror federal law making computer-generated images subject to prosecution. 03.27.04

Pa. woman charged with obscenity for online child-torture stories
Federal prosecutors say Web site contained excerpts of fictional stories about child sex, torture, murder that were available to all visitors. 09.28.06

High court agrees to review child-porn law
11th Circuit had found pandering provision of PROTECT Act of 2003 overbroad, impermissibly vague. 03.26.07

Ohio high court upholds virtual child-porn law
Justices reinstate man's conviction, rejecting argument that statute conflicts with U.S. Supreme Court ruling protecting computer-generated images. 07.26.07

N.H. high court finds composite photos aren't child porn
Camp photographer created sexual images by combining the faces of teenage girls with women's bodies. 01.22.08

Court refuses to suppress statements in child-torture tales case
Pennsylvania woman is charged with one count of obscenity for each of six graphic, fictional stories published on her Web site. 01.30.08

The PROTECT Act and the First Amendment
By Ambika J. Biggs Legislative effort to safeguard children after parts of CPPA were struck down raises its own free-expression problems concerning virtual child pornography. 08.27.03


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