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High court tries to picture disputed virtual-porn law in practice


By Tony Mauro
Special to


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A federal law that outlaws child pornography even when no children are used in creating it appeared to be in trouble yesterday, as Supreme Court justices imagined how the law might affect relatively mainstream movies such as "Traffic," "Lolita" and "Titanic."

The law was passed in 1996 to deal mainly with new computer technologies that allow manipulation of graphic images, making it appear that children were involved, when in fact only adults were used. A coalition of adult entertainment producers challenged the law on First Amendment grounds, and it was struck down by the 9th U.S. Circuit Court of Appeals. The government appealed, and yesterday the high court, meeting in borrowed chambers because of an anthrax scare, heard the case of Ashcroft v. Free Speech Coalition.

In spite of the earlier focus on high technology and "virtual porn," several justices brought the debate back to more familiar forms, namely popular movies that include sexual scenes involving characters who are depicted as minors.

Justice Stephen Breyer at one point asked what kind of legal trouble he would be in if he rented “Traffic,” “Lolita” or “Titanic” at the local video store.

"Each film has a scene of simulated sexual behavior by 17-year-olds, all right?" Breyer asked the government lawyer who was defending the law. "The question is, why am I not guilty under your interpretation of the statute of a federal crime for possessing those three films?"

Deputy Solicitor General Paul Clement responded that under the law, filmmakers should include disclaimers stating that adult actors were used in making those seemingly under-age scenes, and that the government would have to prove "scienter" against renters like Breyer — legalese for showing that the person possessing the films knew that children were used in making them.

Breyer was skeptical, arguing that all that was necessary was a showing that he knew the films used actors who "appear to be" under 18. "If this afternoon I go out, go to the video store, buy the three films and bring them home yes, I am guilty of a federal crime," he concluded.

Justice Antonin Scalia interjected that "I didn't see any of these movies," to which Breyer replied, "They were pretty good, actually."

The film discussion continued when the coalition's lawyer, H. Louis Sirkin rose to speak of the "radical, tragic consequences" of the law on First Amendment jurisprudence. Scalia challenged him sarcastically to name which "great works of Western art" would be outlawed.

When Sirkin mentioned “Traffic,” “Lolita” and early films of Brooke Shields, which he conceded "maybe some people don't enjoy," Scalia said triumphantly, "This is not, you know, the ‘Mona Lisa’ or ‘Venus de Milo’ or anything that has lasted more than 30 years.”

When Justice John Paul Stevens mentioned that Shakespeare's “Romeo and Juliet” included a scene that could come under the law's purview, Scalia turned to Stevens and said, "Gee, you've seen a different version of that play than I have."

Sirkin also argued that the focus of past laws against child pornography was the protection of the actual children involved in creating it. By expanding the scope of the law beyond those abuses, Sirkin said the government was going down a "slippery slope" that could lead to prosecutions for murder when no murder occurred.

The unusual discussion provided the justices an amusing break from the mundane fare of many of their cases. But government lawyer Clement clearly saw that the movie issue was an omen of trouble for his case. If the law is seen to be broad enough to cover mainstream movies, then the court is likely to conclude that it is too vague or overly broad to withstand First Amendment scrutiny.

In his rebuttal, Clement reassured the justices, "We are not out there prosecuting people who pick up ‘Traffic’ at the Blockbuster."

Justice Ruth Bader Ginsburg was the only member of the court who raised the "secondary effects" issue that also troubles opponents of the law. Since no real children are used in the activities the law seeks to ban, the government justifies it on the basis that child pornography has the secondary effect of stimulating pedophiles and encouraging abuse of real children in other settings. Ginsburg worried that other forms of unpopular expression could be attacked on the same grounds, namely the effect on the viewer.

"It seems that this is a big step away from … injury to an actual child to the effect on the viewer," said Ginsburg. "The same thing could be said for women with respect to pornography, portraying women in a degrading way. The same thing could be said for hate speech. So this, where there is no actual child victim, where it's a picture and you're talking about the effect of that on the viewer, why isn't it the same for all these other things that can have a very bad effect on the viewer?”

Clement sought to assure Ginsburg that prosecutions would be limited to cases in which the depictions were "virtually indistinguishable" from traditionally illegal child pornography. But several justices implied that to guarantee that limited interpretation, the court would in effect have to rewrite the law.

A decision in the case could come anytime before the court recesses next summer.

Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.


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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

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Analysis Decision joins court’s 1997 ruling in Reno v. ACLU as major landmark in the development of the Internet as a forum for free expression.  04.17.02