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Federal appeals panel strikes down key provisions of computer child-porn law

By David Hudson
First Amendment Center
12.20.99

Key provisions of a federal law that criminalizes computer-generated images of minors engaged in sexually explicit conduct — even if the images only appear to be of a minor — violate the First Amendment, the 9th U.S. Circuit Court of Appeals has ruled.

"We hold that the First Amendment prohibits Congress from enacting a statute that makes criminal the generation of images of fictitious children engaged in imaginary but explicit sexual conduct," wrote Judge Donald W. Molloy for the majority of the three-judge panel in The Free Speech Coalition v. Reno.

The Child Pornography Prevention Act of 1996 substantially broadens the definition of child pornography, saying it is "any visual depiction, including any photography, film, video, picture, or computer or computer-generated image or picture … of sexually explicit conduct, where … such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct."

The law also defines child pornography to include situations in which "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 engaging in sexually explicit conduct."

The Free Speech Coalition, a trade association that represents businesses and individuals involved in the production or distribution of adult-oriented materials, challenged the law on First Amendment grounds, contending that it prohibits constitutionally protected speech.

Even though the coalition says it does not "tolerate" the distribution of child pornography, it filed the lawsuit because many of its members produce films, photographs and other materials that are sexually explicit. The law, the coalition claims, has caused many of its members to engage in "self-censorship" for fear of prosecution under the law. Other plaintiffs included the publisher of books on nudity, a California photographer who takes nude and erotic photos and a New York artist who paints nudes.

U.S. District Judge Samuel Conti had ruled in August 1997 that the law clearly advances the government's compelling interests in protecting minors from sexual exploitation.

On appeal, the 9th Circuit panel voted 2-1 that the law was both unconstitutionally overbroad and vague.

Molloy wrote for the majority in the Dec. 17 opinion that he was especially troubled by the "appears to be of a minor" and "conveys the impression" phrases, saying that they were "highly subjective."

The panel noted Congress' continuing efforts to pass legislation to protect children from child pornographers, including federal laws passed in 1977, 1984, 1986, 1988 and 1990.

However, the panel said the "statutory odyssey" of protecting children from this harmful material shifted when Congress passed a law to prohibit virtual child pornography. "The regulation directed shifted from defining child pornography in terms of the harm inflicted upon real children to a determination that child pornography was evil in and of itself, whether it involved real children or not," Molloy wrote.

Molloy described the law as one that seeks to "stifle the use of technology for evil purposes."

The government had argued that the law was constitutional because it only regulated the harmful secondary effects associated with child pornography. The district court accepted the government's secondary-effects rationale and thus deemed the law to be content-neutral.

Determining whether a law is content-neutral or content-based — discriminating against expression based on its content — is important in First Amendment cases, because content-based laws are subject to a higher degree of judicial scrutiny.

However, the appeals panel rejected the secondary-effects argument, noting that the law "was content-based because it expressly aims to curb a particular category of expression."

The government had also argued that the law is constitutional because it prohibits a category of expression — virtual child pornography — that should not be entitled to any First Amendment protection. The U.S. Supreme Court found in the 1982 decision New York v. Ferber that child pornography deserved no First Amendment protection

The content-based law is unconstitutional, according to the majority, because "Congress has no compelling interest in regulating sexually explicit materials that do not contain visual images of actual children."

"Factual studies that establish the link between computer-generated child pornography and the subsequent sexual abuse of children apparently do not yet exist," Molloy wrote.

Even though the panel wrote that computer images of child pornography not involving real children are "morally repugnant," it determined that there is "no demonstrated basis to link computer-generated images with harm to real children."

Judge Warren Ferguson dissented, writing that "Congress has provided compelling evidence that virtual child pornography causes real harm to children."

Ferguson said that government officials should be granted "greater leeway when acting to protect the well-being of children." He also found that virtual child pornography "has little or no social value."

H. Louis Sirkin, the Cincinnati-based attorney who argued the case for the Free Speech Coalition, praised the majority's ruling. "The majority zeroed on the two phrases of the statute that we were challenging," he said. "The court and the dissent also properly rejected the district court judge's content-neutral analysis."

Sirkin emphasized that the Free Speech Coalition does not in any way support child pornography. "We do not advocate for kiddie porn," he said. "In fact, we are against it. We were simply concerned that the broad phrases in this law would infringe on protected expression."

Sirkin said that the law could be applied to ban movies such as "Lolita" and "American Beauty."

A call placed to the Department of Justice was not returned.


Related

Federal appeals panel upholds computer child-porn law

4th Circuit joins two other appeals courts in upholding federal law expanding definition of child pornography to include images that appear to be of a minor. 11.07.00

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