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Law banning virtual child porn facing real test

By The Associated Press

10.29.01

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CINCINNATI — The U.S. Supreme Court is set to examine the constitutionality of a federal law designed to combat child pornography by banning computer-generated pictures that only appear to show minors involved in sexual activity.

The Cincinnati lawyer who defended Hustler magazine publisher Larry Flynt on pandering charges, and the Contemporary Arts Center when it was prosecuted for displaying photographs by Robert Mapplethorpe, is to argue the case tomorrow.

H. Louis Sirkin is representing the Free Speech Coalition, a group of businesses that create and distribute adult-oriented material. It is challenging a 1996 law that prohibits any image that "appears to be" or "conveys the impression" of someone under 18 engaged in sexually explicit conduct.

"If it's a computer image, there's no birth certificate," Sirkin said. "It's not a real person. How do you tell how old someone is?"

The government is challenging a ruling by the 9th U.S. Circuit Court of Appeals, which found that a portion of the Child Pornography Prevention Act violated free-speech rights. Since other appeals courts have upheld the provisions, Justice Department lawyers asked the nation's highest court to resolve the conflict.

In Ashcroft v. Free Speech Coalition, the justices will consider whether youthful, though fake, characters in pornographic films and other material should be outlawed like traditional child pornography.

"They are trying to sneak through a limitation on the First Amendment and artistic expression," said Bill Lyon, president of the Free Speech Coalition.

Supporters of the law say the target is not adult entertainment, but pedophiles who can manipulate and create realistic images on home computers. They say child pornography laws should not distinguish between real images and realistic computer images.

"This is not a form of expression entitled to First Amendment protection," said Bruce Taylor, president of the National Law Center for Children and Families.

Until the arrival of computer-generated images, there was little debate about the difference between adult and child pornography. If the movie involved anyone younger than 18, it was child porn and it was illegal. If the participants were over 18, it was legal as long as the film was not obscene, which meant it had at least minimal artistic or educational value.

But increasingly sophisticated computer imaging is producing realistic images of everything from talking lizards in TV commercials to computer-generated humans in movies such as “Final Fantasy.”

The technology makes the difference between what is legal and illegal far more subjective. Fearing what imaginative pedophiles might do with the new technology, Congress passed a law that criminalized the creation or possession of fake, but realistic, images of children in sexual situations.

"Child porn is child porn, whether it's actual images or virtual images," said Phil Burress, president of the Cincinnati-based Citizens for Community Values. "I don't care if the images are computer-generated or real."

Sirkin said child pornography is not protected under the Constitution, but he objects to the way the law defines it. He said he would argue that the emphasis on how the images "look" is too subjective.

Update

Supreme Court strikes down ban on virtual child porn
Justices rule 6-3 that the First Amendment protects pornography or other sexual images that only appear to depict real children engaged in sex.  04.16.02

Previous

Supreme Court to review ban on virtual child porn
High court grants Justice Department's request to resolve conflict over Child Pornography Prevention Act.  01.22.01

Related

Attorney follows his First Amendment passion in defending obscenity cases
'Censorship is like cancer; in fact, it spreads faster than cancer,' says Cincinnati attorney H. Louis Sirkin.  01.06.99

Flynt to fight eviction from downtown Cincinnati building
'It's an attempt to silence and censor,' says H. Louis Sirkin, attorney for publisher and bookstore owner.  07.26.99

Mapplethorpe controversy reverberates in Cincinnati 10 years later
Winners in dispute say censorship, fear now rule among city's artists; losers claim victory because no similar incidents have occurred.  04.11.00

High court tries to picture disputed virtual-porn law in practice
Analysis Despite earlier focus on high tech, justices explore debate in context of popular movies that include sexual scenes involving under-age characters.  10.31.01

2001-2002 Supreme Court term coverage
Analysis and other coverage of the 2001-2002 U.S. Supreme Court term.  11.01.01

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