Supreme Court Rules First Amendment Protects “Virtual” Child Porn

Print Friendly

On April 16, the U.S. Supreme Court announced its ruling in Ashcroft v. Free Speech Coalition, __ U.S. __, 122 S. Ct. 1389 (2002). In an opinion written by Justice Anthony Kennedy, the Court affirmed a decision by the U.S. Court of Appeals for the Ninth Circuit holding the Child Pornography Prevention Act (CPPA) of 1996 “invalid on its face.” The Court found the CPPA “substantially overbroad” because it bans materials that are neither obscene under Miller v. California, 473 U.S. 15 (1973) nor produced by the exploitation of real children as in New York v. Ferber, 458 U.S. 747 (1982). The Court sided with the ninth circuit and against the first, fourth, fifth and 11th U.S. circuit courts of appeal and the federal district court in Utah, all of which had upheld the CPPA against identical challenges. [The fact that the ninth circuit has had a reversal rate of over 90 percent by the Supreme Court in the last few years, adds insult to injury.]

By a vote of 6-3, the Court struck down 18 U.S.C. 2256 (8)(B), which criminalized a computer-generated image that “appears to be” of a minor engaged in sexually explicit conduct. By a 7-2 vote, in which Justice Sandra Day O’Connor joined, the Court struck down 18 U.S.C. 2256 (8)(D), which criminalized a depiction that “conveys the impression” it is of a minor engaged in sexually explicit conduct-so-called “pseudo” child porn, in which young-looking adults are depicted as children and the material is pandered as child pornography. The section of CPPA that criminalized computer morphed images, 18 U.S.C. 2256 (8) (C), had not been challenged and the Court did not rule on its constitutionality.

The Court reasoned that non-obscene “simulated sexual conduct” by an adult actor depicting a child could lead to the prosecution of movies such as American Beauty, Traffic, Titanic and Lolita. As a result, the Court held that the CPPA violated the First Amendment because it criminalized non-obscene “virtual” images of a child engaged in “simulated” sexual conduct.

The Court engaged in unbridled speculation about the possible reach of the CPPA, citing concerns about movies such as, “Titanic,” “American Beauty,” “Traffic,” Renaissance paintings and Shakespeare’s “Romeo and Juliet.” Unfortunately, the Court did not construe and limit the reach of the CPPA within the mandate of Jenkins v. Georgia, 418 U.S. 153, 161 (1974). In Jenkins, the Court reversed the obscenity conviction of a theater owner for exhibiting the movie Carnal Knowledge. The Court held that the movie could not be found obscene, because it did not include patently offensive depictions of sexual conduct and, in fact, did not include any legally cognizable “depiction” of any sexual conduct. The Court stated that, at most, some form of sexual activity was implied and though it was “understood to be taking place, the camera does not focus on the bodies of the actors at such times.” The Court held that, as a matter of law, no visual material could be held to be obscene unless it included patently offensive “depictions” of the hard-core sex acts.

At least two theories justify criminalizing CGI, morphed and “pseudo” child porn:

1) The material’s existence greatly burdens investigations and prosecutions of child pornography depicting a real child.

2) “Virtual” child porn is dangerous material in the hands of pedophiles because it is an effective tool that facilitates future child sexual abuse and exploitation.

The Supreme Court in Ferber upheld a state statute that prohibited displaying or distributing child pornography that is not obscene under the Miller test for adult obscenity. The Court rejected the First Amendment challenge holding that: “The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis.” The Ferber statement was cited approvingly by the Court in Osborne v. Ohio, 495 U.S. 103 (1990), which upheld a state statute that criminalized possession of child porn.

The Free Speech Court distinguished Ferber with a most disturbing comment: Ferber “did not hold that child pornography is by definition without value. It recognized some works in this category might have significant value, but relied on virtual images-the very images prohibited by the CPPA-as an alternative and permissible means of expression.” Rather than reaffirm Ferber’s “de minimis” valuation of child porn, Justice Kennedy implies that child pornography has some measurable value. Indeed, he further exacerbated the situation by stating that the “virtual images” prohibited by the CPPA “might have significant value.” Other than the pedophiles at NAMBLA, for whom do virtual images of kids being raped and sodomized hold “significant value”?

In Osborne, the Court reasoned, “The State’s ban on possession and viewing encourages the possessors of these materials to destroy them. Second, encouraging the destruction of these materials is also desirable because evidence suggests that pedophiles use child pornography to seduce other children into sexual activity.” The Court also recognized: “It is also surely reasonable for the State to conclude that it will decrease the production of child pornography if it penalizes those who possess and view the product, thereby decreasing demand.” Rather than affirming a compelling governmental interest in excluding virtual child porn from First Amendment protection for the same reasons approved in Osborne, Kennedy failed to apply the Court’s rationale in Osborne, a decision in which Kennedy joined. Instead he stated:

Virtual child pornography is not “intrinsically related” to the sexual abuse of children. While the Government asserts that the images can lead to actual instances of child abuse, the causal link is contingent and indirect. The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts.

It is hard to understand how the potential use of virtual child porn by pedophiles is any less contingent and indirect or has a less-quantified potential for subsequent criminal acts than the use of real child pornography by pedophiles. The future harm to additional children recognized in Osborne also depends upon subsequent criminal acts. The Court would have done well to reaffirm its conclusions in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61, 62, 63:

From the beginning of civilized societies, legislators and judges have acted on various unprovable assumptions. Such assumptions underlie much lawful state regulation of commercial and business affairs. Understandably those who entertain an absolutist view of the First Amendment find it uncomfortable to explain why rights of association, speech, and press should be severely restrained in the marketplace of goods and money, but not in the marketplace of pornography. The fact that a congressional directive reflects unprovable assumptions about what is good for the people, including imponderable aesthetic assumptions, is not a sufficient reason to find that statute unconstitutional. The sum of experience, including that of the past two decades, affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by the crass commercial exploitation of sex. Nothing in the Constitution prohibits a State from reaching such a conclusion and acting on it legislatively simply because there is no conclusive evidence or empirical data.

The government also argued that unless virtual child porn is banned, the successful prosecutions of real child pornography cases would be jeopardized as defendants raise a reasonable doubt about whether the depictions are of real or virtual children. Justice Clarence Thomas, in his concurring opinion, dismissed the government’s reasonable doubt argument as a “speculative interest” because the government did not cite any acquittals where such a reasonable doubt was raised. Why would a judge need a body count to recognize the real potential of this argument? Predictably, attorneys representing child pornography defendants have already seized the opportunity to use the argument with devastating effect.

The IMPACT OF THE Free Speech RULING has begun

Adult Video News, May 21, 2002, Los Angeles: “It was a banner day in the case of the People v. Max Hardcore, when Commissioner Joseph M. Biderman, who was hearing motions in Hardcore’s case, granted attorney Jeffrey Douglas’ Supplemental Motion to Dismiss Count 3 of the charges filed against Hardcore last spring, which dealt with allegations that the portrayals in Max Hardcore Extreme 4 constituted child pornography. ‘After Ashcroft [v. Free Speech Coalition] came down, they didn’t even try,’ declared Douglas. ‘I filed my Supplemental Motion with Ashcroft attached, and it was unopposed.'”

By Tony Gordon, Legal Affairs Writer, Daily Herald, May 17, 2002: “A Lake County, Illinois, judge declared the state’s child pornography law unconstitutional Wednesday, saying it does not distinguish between images of real children and those created by computer. Circuit Judge James Booras’ decision is believed to be the first in the state following a U.S. Supreme Court ruling last month. It resulted in a 24-year-old Waukegan man, who had already pleaded guilty to possessing child pornography, being released from jail. Kenneth Alexander was awaiting sentencing and faced up to 15 years in prison because police found close to 2,600 images of children engaging in lewd behavior with other children, adults and animals in his computer at his residence. But his attorney, Donald Morrison of Waukegan, challenged the state law Alexander had pleaded guilty to on March 28, citing the U.S. Supreme Court ruling in Ashcroft v. Free Speech Coalition.”

The Associated Press, May 7, 2002, Concord, N.H: “Encouraged by a recent U.S. Supreme Court ruling, former prep school teacher David Cobb is seeking a new trial on charges that he was carrying a knapsack full of child pornography when he tried to molest a 12-year-old boy. Cobb, 65, was arrested in August 1995 while walking with the boy in downtown Farmington. At the time, he was carrying a backpack containing children’s underwear, a pumpkin mask, a pay scale for “helping pumpkin” perform various acts, and hundreds of pornographic images. He was convicted the following spring of attempted felonious sexual assault, 53 charges of displaying child pornography, and 267 charges of possessing child pornography.”

Leave a Reply