Federal appeals panel upholds computer child-porn law

By David Hudson
The Freedom Forum Online

11.07.00

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The 4th U.S. Circuit Court of Appeals has become the third federal appeals court to uphold a federal law expanding the definition of child pornography to include computer-generated images of minors engaged in sexually explicit conduct — even if the images only appear to be of a minor.

In December 1997, the FBI learned from a confidential informant that Maryland resident Joseph H. Mento III possessed child pornography. Federal agents then obtained a warrant to search Mento's home. Mento admitted to possessing child pornography and an ensuing search revealed that he had more than 100 pictures of naked children engaged in sexually explicit activities. He had downloaded the images from the Internet.

In February 1999, a federal judge rejected Mento's constitutional arguments.

Mento then pled guilty to possessing child pornography in violation of the Child Pornography Prevention Act of 1996, but he reserved the right to contest the constitutionality of the law before the 4th Circuit.

The CPPA substantially broadens the definition of child pornography, stating that it is "any visual depiction, including any photography, film, video, picture, or computer or computer-generated image or picture ... of sexually explicit conduct, where ... such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct."

The law also defines child pornography as including situations in which "such visual depiction is advertised, promoted, presented, described or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct."

In its 1982 decision New York v. Ferber, the U.S. Supreme Court ruled that child pornography was outside the scope of First Amendment protection.

Congress passed the CPPA in 1996 to address new problems caused by technological advances, such as the digital alteration of photographic images to create child pornography.

Mento argued that the law was unconstitutional on its face because it criminalized material that did not involve harm to real children. Mento argued that Ferber limited governmental interests to protecting real children from being victimized by pornographers.

On Nov. 3, a three-judge panel of the 4th Circuit rejected Mento's constitutional arguments in United States v. Mento.

The 4th Circuit noted that other circuits were divided on the constitutionality of the law. In Free Speech Coalition v. Reno, the 9th Circuit had struck down the "appears to be a minor" and "convey the impression" language in the CPPA.

However, the 1st Circuit in United States v. Hilton and the 11th Circuit in United States v. Acheson upheld all of the CPPA.

"Mento interprets Ferber too narrowly," the panel wrote. "Ferber necessarily dealt with depictions of actual children, long before virtual pornography became an issue."

The 4th Circuit determined "depictions that are represented to be minors are harmful in the same way as any child pornography, except that there is no minor involved in their production."

Pedophiles use computer-generated images of child porn to whet their sexual appetites and to make minors more susceptible to sexual demands, the panel reasoned.

Mento raised the argument that the law was overbroad because it could apply to real-life depictions involving youthful actors of uncertain age, such as in certain movies like 'Lolita.'

The CPPA offers an affirmative defense to sellers, producers and distributors who can prove that the participants were not minors. However, as the 4th Circuit pointed out, this defense is not available to those who merely possess such images.

"There is, however, a slight risk that a person could be convicted of possessing 'child' pornography that was actually produced using adults," the panel acknowledged.

However, the 4th Circuit ruled that this "slight risk" was not enough to strike down the statute, writing: "We thus concur with our sister circuits that the CPPA does not burden substantially more material than necessary to further the government's interest in prohibiting child pornography.

"The CPPA is indeed bold and innovative in its attempt to combat the sexual exploitation of minors caused by the trade of child pornography," the appeals panel concluded. "Boldness and innovation, however, do not render an Act of Congress constitutionally infirm."

Alan R.L. Bussard, Mento's attorney, said he would appeal the case to the U.S. Supreme Court.

"The 4th Circuit characterized the fact that possessors of child pornography are at a 'slight risk' of being punished even if the person depicted is not a minor," Bussard said. "This is wrong. I would characterize it as a major risk.

"The 4th Circuit's opinion conflicts with the U.S. Supreme Court's Ferber decision," he said. "The appeals court seemed to be saying that Ferber was outdated."

Related

Federal courts split over constitutionality of computer child porn law
Experts on both sides of the issue say case will eventually be appealed to the U.S. Supreme Court.  09.11.98

Federal appeals panel strikes down key provisions of computer child-porn law
'Congress has no compelling interest in regulating sexually explicit materials that do not contain visual images of actual children,' 9th Circuit rules.  12.20.99

Computer child-porn law wins approval of federal appeals court
Law's language is 'sufficiently precise to pass constitutional muster and yet flexible enough to meet the challenges posed by computerized child pornography,' writes court.  02.01.99