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High court rejects child-porn law that 'turns the First Amendment upside down'


By Tony Mauro
Special to


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The Supreme Court has once again planted the First Amendment flag in cyberspace, ruling yesterday that Congress acted unconstitutionally when it banned so-called “virtual” child pornography, which only appears to depict minors.

The law sweeps too broadly by outlawing expression in which no real children are used, the court said, and could, if taken literally, criminalize modern-day renditions of "Romeo and Juliet."

Justice Anthony Kennedy, writing for a 6-3 majority, said the 1996 federal law “turns the First Amendment upside down” by outlawing protected speech as a way of banning unprotected child pornography. The law, said Kennedy, “prohibits speech that records no crime and creates no victims by its production.”

Federal law has long forbidden child pornography that uses real children, but Congress in 1996 expanded the statute to include computer-generated images that “appear to be of a minor engaging in sexually explicit conduct.”

Congress and the Justice Department argued that virtual child pornography jeopardizes real children by stimulating the market for illegal materials and makes it difficult for police to distinguish between what is legal and what is illegal.

But the decision yesterday in Ashcroft v. Free Speech Coalition, No. 00-795, flatly rejected that rationale with wording that is sure to be used in other litigation against government restrictions on speech. “The government has shown no more than a remote connection between speech that might encourage thoughts or impulses and any resulting child abuse,” Kennedy wrote.

“The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it,” Kennedy also said. In cases about zoning, some "secondary effects" cited by government have convinced the high court to allow restrictions on adult businesses and other forms of expression. But the opinion yesterday appeared to foreclose the possibility that this “secondary effects doctrine” would expand beyond zoning cases.

The decision, with its expansive language and dramatic tone, joins the court’s 1997 ruling in Reno v. ACLU as a major landmark in the development of the Internet as a forum for free expression. The 1997 decision struck down the first effort by Congress to restrict children’s access to adult material in cyberspace.

Reaction from Attorney General John Ashcroft to yesterday’s ruling was quick and negative. He said the court had made the prosecution of child pornographers “immeasurably more difficult,” but pledged to pursue them under broader obscenity laws already on the books, while also working with Congress to devise new laws that would survive Supreme Court review. “I am undeterred in my resolve to do all that I can to protect our children from the pornographers and other predators who would prey on their innocence.”

The decision was a major victory for civil liberties advocates who feared that the Supreme Court would use the proliferation of Internet pornography to trim its broad interpretation of the free-speech clause of the First Amendment.

“It was a Brennan-like statement of the importance of maintaining First Amendment protections,” said Michael Bamberger, a New York partner at Sonnenschein Nath & Rosenthal who co-wrote a brief in the case on behalf of book, magazine and video publishers. “They are reminding us that just because the goals of Congress were legitimate, that does not validate the law.”

Ann Beeson, staff attorney at the American Civil Liberties Union said, “We were all worried that the court would change its mind about Miller v. California and Ferber v. New York, which are getting to be old precedents.

"The court said today it is not going to redraw its line on obscenity. And the fact that it wasn't a splintered decision was a welcome surprise.”

The opinion said the 1996 Child Pornography Prevention Act banned substantially more speech than obscenity as defined by the 1973 Miller case. Kennedy said the law also ran afoul of Ferber, the 1982 decision holding that child pornography could be banned because of the damage done to the actual children involved in producing it.

Kennedy wrote that the law “proscribes the visual depiction of an idea — that of teenagers engaging in sexual activity — that is a fact of modern society and has been a theme in art and literature throughout the ages.”

A well-known Shakespeare buff, Kennedy noted that the character Juliet had not reached the age of 14. "Romeo and Juliet" has inspired 40 motion pictures, Kennedy noted, adding that “Shakespeare may not have written sexually explicit scenes for the Elizabethan audience, but were modern directors to adopt a less conventional approach, that fact alone would not compel the conclusion that the work was obscene.”

Kennedy also cited two acclaimed recent movies, "Traffic" and "American Beauty," that include scenes that could fit the law’s definition of virtual pornography — whether or not real child actors actually engaged in sexual acts. “Our society, like other cultures, has empathy and enduring fascination with the lives and destinies of the young,” wrote Kennedy.

“Congress passed an indefensible law that, on its face, would criminalize various scenes in movies like Traffic and America Beauty and make production and possession punishable by up to 15 years of prison,” said Joan Bertin, executive director of the National Coalition Against Censorship.

“As the Supreme Court recognized, numerous other laws suffice to protect children from sexual exploitation and predation.”

Martha Coolidge, president of the Directors Guild of America, said, “We can all thank the Supreme Court for once again defending the First Amendment freedoms central to our free society, and preserving the creative freedoms that all Americans treasure. Every American would suffer the loss of freedom if this overzealous governmental intrusion into our rights of expression had been allowed to stand.”

Chief Justice William Rehnquist wrote a dissent, most of which was joined by Justice Antonin Scalia. Justice Sandra Day O'Connor wrote a partial dissent asserting that at least one challenged part of the law was constitutional, namely the provision that would bar computer-generated images that are, in her words, “virtually indistinguishable” from images of real children. These images, she said, may whet the appetite of child molesters, and could reasonably be banned.

But she agreed with the majority that the law is unconstitutional as it applies to young-looking adult performers. Justice Clarence Thomas wrote an opinion concurring with the majority but holding out the possibility that a more narrowly drawn law might be constitutional.

Supporters of the law were bitterly disappointed with the ruling. “The court failed to close a legal loophole that can only diminish efforts to protect children and punish pornographers,” said Jay Sekulow, chief counsel of the American Center for Law and Justice. “The decision sadly will make the job of law enforcement that much more difficult in the pursuit of porn operators who target children.”

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


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