Virtual porn case to test high court's sexually explicit material standard

Analysis

By Tony Mauro
Special to freedomforum.org

01.26.01

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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 explicit conduct.

"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 appeal.

"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 the government.

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 circumstances."

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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