Virtual porn case to test high court's sexually explicit material standard
By Tony Mauro
Special to freedomforum.org
Some kinds of sexually explicit material are protected by the First
Amendment, in the Supreme Court's view, but one kind child pornography
is definitely not.
The Supreme Court's 1982 decision in New
York v. Ferber made that clear, and the court's reasoning was
equally clear: The government has a compelling interest in preventing the
exploitation of the children depicted in such material.
But now, that principle faces reexamination because of new technology.
The Supreme Court, in a case it agreed this week to hear next fall, will decide
whether the First Amendment protects "virtual" child pornography that seems to
depict children but never involved the use of anyone actually under 18.
The justices agreed Jan. 22 to hear the case of
Reno v. The Free Speech Coalition,
in which the federal government seeks to revive parts of a child pornography
law struck down in late 1999 by the 9th U.S. Circuit Court of Appeals.
Congress enacted the provisions at issue in 1996 to respond to new
technology. The law defines child pornography to include any visual depiction
that "appears to be of a minor engaging in sexually explicit conduct" or
"conveys the impression" that minors are involved. Anyone distributing these
images faces up to 15 years in prison, and possession carries a penalty of up
to five years in prison.
The Free Speech Coalition, a California trade association that
represents the creators and distributors of "non-obscene, adult-oriented"
materials, challenged the law as a vague and unconstitutional infringement on
its members' First Amendment rights.
The provisions at question, according to the coalition, represents a
"radical alteration and expansion" of the law that has had a "profound and
adverse impact on countless numbers of artists, illustrators, photographers and
other creators who participate in constitutionally protected expressive
activity that could be deemed by some as depicting minors even though, in
reality, no actual children are depicted."
The group stressed its opposition to child pornography that depicts
real children, but said the law reached too far. Underlining its opposition to
child pornography as defined more narrowly, the coalition did not challenge
another provision of the 1996 law that prohibited computerized alteration of
the images of real children to make it appear they are engaged in sexually
"Such images could harm the children depicted, and hence, the First
Amendment affords such images no protection," the coalition's brief states.
Three other federal appeals courts — the 1st, 4th and 11th
Circuits have upheld the law, but the 9th Circuit, in the case brought
by the Free Speech Coalition, struck it down.
"Throughout the legislative history, Congress has defined the problem
of child pornography in terms of real children," wrote Judge John Molloy, a
Montana district court judge who was assigned temporarily to the 9th Circuit.
"The 1996 law ... changed course. The regulation direction 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."
As such, Molloy wrote for the 2-1 majority, the law amounts to a
content-based regulation that does not withstand constitutional scrutiny.
"Enactment of criminal laws intended to control an evil idea cannot satisfy the
constitutional requirements of the First Amendment," Molloy wrote.
The Justice Department defends the law as a valid way of advancing its
interest in preventing the exploitation of children. Clinton administration
Solicitor General Seth Waxman, who left office on Jan. 20, signed the
government's brief, but the Bush administration is certain to carry on the
"Virtual" images can be used by pedophiles to seduce real children
into sexual activity and to "stimulate their sexual appetites," the government
argues in the brief. These virtual images also "add fuel" to the underground
child pornography industry, ultimately involving real children in the view of
Creating an exception to protect computerized images, the government
also asserts, would make it difficult to prosecute those who use real children,
because of the difficulty in distinguishing between the two. "The prohibitions
at issue here insure that people who disseminate or possess pornographic
depictions of actual children will not escape punishment in those
The government also pointed out that the law contains an "affirmative
defense" to prosecution under the law, if the person possessing or distributing
the images can prove that adults only were used. The 9th Circuit ruling did not
comment on the affirmative defense.
The outcome of the case is difficult to predict. The court's
conservative majority has a penchant for reversing decisions of the generally
liberal 9th Circuit, such as the ruling at issue in the pending case. And in
recent First Amendment cases involving adult entertainment or obscenity, the
justices have given more weight to the kind of "secondary effects" of such
material that the government brief asserts.
On the other hand, some justices might be reluctant to extend the
Ferber doctrine in a way that could
have unforeseen impact on new and rapidly changing technology. If speech
restrictions in this area are not based on preventing the exploitation of the
real children involved, some justices may view the law as too open-ended to
meet First Amendment scrutiny.
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