Computer child-porn law wins approval of federal appeals court

David Hudson
First Amendment Center

02.01.99

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A federal appeals court has upheld a federal law that criminalizes the possession or distribution of computer-generated images of minors, or someone who appears to be a minor, engaging in sexually explicit conduct.

Congress passed the Child Pornography Prevention Act of 1996, according to the 1st U.S. Circuit Court of Appeals, "to modernize federal law by enhancing its ability to combat child pornography in the cyberspace era."

The U.S. Supreme Court found in its 1982 decision New York v. Ferber that child pornography deserved no First Amendment protection. However, lawmakers were concerned that existing child-pornography statutes were insufficient to combat the problem of computer child pornography. As the 1st Circuit wrote in its opinion issued on Jan. 27, "through readily available desktop computer programs, one can even create a realistic picture of an imaginary child engaged in sexual activity and pass off that creation as an image of a real child."

The Child Pornography Prevention Act 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."

Government officials assert the law is necessary to combat the exploitation of children caused by child pornography, whether traditional or computer-generated. However, some free-speech advocates counter that the law — especially the phrases "appears to be a minor" and "conveys the impression" of child pornography — criminalizes constitutionally protected expression.

The 1st Circuit's ruling stems from a criminal prosecution in Maine of electronic technician David Hilton, who was charged under the 1996 law for allegedly possessing computer disks containing child pornography sent to him via the Internet.

Hilton's attorney convinced a federal district court that the charges should be dismissed because the law was both unconstitutionally overbroad and vague.

Last March, U.S. District Judge Gene Carter wrote that the law's definition of child pornography, which includes visual depictions of people who simply appear to be minors, "is too subjective to enable ordinary persons to know with certainty what conduct is prohibited by the statute."

On appeal, a three-judge panel of the 1st Circuit determined in United States v. Hilton that the Child Pornography Prevention Act was consistent with the First Amendment.

The appeals court's analysis of the law differed dramatically from Carter's. Carter had determined that the act was a content-neutral law because it was designed to address harmful, secondary effects associated with child pornography rather than to suppress speech.

However, the 1st Circuit ruled Carter had "misapplied" First Amendment doctrine. According to the appeals court, the act was a "quintessential" content-based law. "Blanket suppression of an entire type of speech is by its very nature a content-discriminating act," the court wrote.

The 1st Circuit also said that even though the act was a content-based law, it was constitutional because it targeted child pornography, a category of speech, which receives no First Amendment protection.

The appeals court said that the key question was whether the law restricted a substantial amount of expression that should have received some level of constitutional protection.

"Whether or not the prohibition of material that 'appears to be' of a minor comports with the First Amendment is more troublesome," the court wrote. "At first blush, potential problems threaten to doom the law."

However, the appeals court found that "Congress meant only to extend federal authority in an important but limited fashion to a specific subset of visual images — those which are easily mistaken for that of real children."

Hilton and several other groups, including the American Booksellers Foundation for Free Expression and the Freedom to Read Foundation, argued that the statute would criminalize possession of protected adult pornography.

The 1st Circuit disagreed, saying: "In constitutional terms, sexually explicit material produced without the benefit of a live child model but giving the appearance as it had been is more akin to traditionally unprotected child pornography than adult pornography."

Though it acknowledged that it was "theoretically possible" for individuals to be prosecuted for possessing images of "youthful-looking adults," the court said such prosecutions would comprise only a small number of those charged under the law.

According to the 1st Circuit, the proper course of action in such situations would be "reversal of an unconstitutional conviction" rather than invalidating the entire statute.

Hilton also argued that the law was unconstitutionally vague in part because the "appears to be a minor" standard was too subjective. The 1st Circuit disagreed, writing: "To the contrary, we hold that the standard is an objective one. A jury must decide, based on the totality of the circumstances, whether a reasonable unsuspecting viewer would consider the depiction to be of an actual individual less than 18 engaged in sexual activity."

The court concluded: "The 'appears to be a minor' test … is sufficiently precise to pass constitutional muster and yet flexible enough to meet the challenge posed by computerized child pornography."

The 1st Circuit is the first appeals court to rule on the constitutionality of the law. The 9th U.S. Circuit Court of Appeals heard oral arguments in another case — The Free Speech Coalition v. Reno — challenging the law but has yet to issue a ruling.

Robert Flores, senior counsel for the National Law Center for Children and Families, supported the 1st Circuit's decision.

"The 1st Circuit asked the right question in analyzing the law — whether the law is substantially overboard rather than theoretically overbroad in certain circumstances," Flores told free! "This law is necessary to keep pace with advancements in digital imaging technology."

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