Case Study: Virtual Child Pornography
On April 16, 2002, the Supreme Court struck down Congress' ban on
virtual child pornography (Child Pornography Prevention Act) asserting
that The First Amendment protects pornography using virtual images
of children. The Court expressed a number of interesting concerns.
First, there was a concern that the ban on virtual child pornography
would have harmful effects on non-pornographic work. In fact, the
Court specifically mentioned the movies American Beauty,
Traffic, and Lolita. Each film depicts sex scenes
with minors. The court was concerned that acclaimed movies containing
sex scenes with actors who either are minors or presumably minors
would be banned by the Child Pornography Prevention Act. Furthermore,
the Court was presumably unconvinced by studies linking consumption
of child pornography and the sexual abuse of children. The Court
noted that, "There are many things innocent in themselves,
such as cartoons, video games, and candy, that might be used
for immoral purposes, yet we would not expect those to be prohibited
because they can be misused." Because the potential harm in
virtual child pornography does not stem from its production and
because of a desire to protect free speech, the Court determined
that Congress' ban on virtual child pornography was overbroad and
unconstitutional(See also http://www.nytimes.com/2002/04/17/national/17PORN.html
for more about the decision.).
Consider this excerpt from The Supreme Court's decision.
JOHN D. ASHCROFT ATTORNEY GENERAL, et al., PETITIONERS
THE FREE SPEECH COALITION et al.
United States Supreme Court.
Argued October 30, 2001
Decided April 16, 2002
JUSTICE KENNEDY delivered the opinion of the Court.
We consider in this case whether the Child Pornography Prevention
Act of 1996 (CPPA), abridges the freedom of speech. The CPPA extends
the federal prohibition against child pornography to sexually explicit
images that appear to depict minors but were produced without using
any real children. The statute prohibits, in specific circumstances,
possessing or distributing these images, which may be created by
using adults who look like minors or by using computer imaging.
The new technology, according to Congress, makes it possible to
create realistic images of children who do not exist.
The principal question to be resolved, then, is whether
the CPPA is constitutional where it proscribes a significant universe
of speech that is neither obscene
nor child pornography.
Before 1996, Congress defined child pornography as
made using actual minors. The CPPA retains that prohibition at 18
U. S. C. §2256(8)(A) and adds three other prohibited categories
of speech, of which the first, §2256(8)(B), and the third,
§2256(8)(D), are at issue in this case. Section 2256(8)(B)
prohibits 'any visual depiction, including any photograph, film,
video, picture, or computer or computer-generated image or picture'
that 'is, or appears to be, of a minor engaging in sexually explicit
conduct.' The prohibition on 'any visual depiction' does not depend
at all on how the image is produced. The section captures a range
of depictions, sometimes called 'virtual child pornography,' which
include computer-generated images, as well as images produced by
more traditional means. For instance, the literal terms of the statute
embrace a Renaissance painting depicting a scene from classical
mythology, a 'picture' that 'appears to be, of a minor engaging
in sexually explicit conduct.' The statute also prohibits Hollywood
movies, filmed without any child actors, if a jury believes an actor
'appears to be' a minor engaging in 'actual or simulated ... sexual
These images do not involve, let alone harm, any children in the
production process; but Congress decided the materials threaten
children in other, less direct, ways. Pedophiles might use the materials
to encourage children to participate in sexual activity. '[A] child
who is reluctant to engage in sexual activity with an adult, or
to pose for sexually explicit photographs, can sometimes be convinced
by viewing depictions of other children 'having fun' participating
in such activity.' Furthermore, pedophiles might 'whet their own
sexual appetites' with the pornographic images, 'thereby increasing
the creation and distribution of child pornography and the sexual
abuse and exploitation of actual children.' Under these rationales,
harm flows from the content of the images, not from the means of
their production. In addition, Congress identified another problem
created by computer-generated images: Their existence can make it
harder to prosecute pornographers who do use real minors. As imaging
technology improves, Congress found, it becomes more difficult to
prove that a particular picture was produced using actual children.
To ensure that defendants possessing child pornography using real
minors cannot evade prosecution, Congress extended the ban to virtual
Section 2256(8)(C) prohibits a more common and lower tech means
of creating virtual images, known as computer morphing. Rather than
creating original images, pornographers can alter innocent pictures
of real children so that the children appear to be engaged in sexual
activity. Although morphed images may fall within the definition
of virtual child pornography, they implicate the interests of real
children. Respondents do not challenge this provision, and we do
not consider it.
Respondents do challenge §2256(8)(D). Like the text of the
'appears to be' provision, the sweep of this provision is quite
broad. Section 2256(8)(D) defines child pornography to include any
sexually explicit image that was 'advertised, promoted, presented,
described, or distributed in such a manner that conveys the impression'
it depicts 'a minor engaging in sexually explicit conduct.' One
Committee Report identified the provision as directed at sexually
explicit images pandered as child pornography. ('This provision
prevents child pornographers and pedophiles from exploiting prurient
interests in child sexuality and sexual activity through the production
or distribution of pornographic material which is intentionally
pandered as child pornography'). The statute is not so limited in
its reach, however, as it punishes even those possessors who took
no part in pandering. Once a work has been described as child pornography,
the taint remains on the speech in the hands of subsequent possessors,
making possession unlawful even though the content otherwise would
not be objectionable.
Fearing that the CPPA threatened the activities of its members,
respondent Free Speech Coalition and others challenged the statute
in the United States District Court for the Northern District of
California. The Coalition, a California trade association for the
adult-entertainment industry, alleged that its members did not use
minors in their sexually explicit works, but they believed some
of these materials might fall within the CPPA's expanded definition
of child pornography.
The First Amendment commands, 'Congress shall make no law ... abridging
the freedom of speech.' The government may violate this mandate
in many ways, but a law imposing criminal penalties on protected
speech is a stark example of speech suppression. The CPPA's penalties
are indeed severe. A first offender may be imprisoned for 15 years.
A repeat offender faces a prison sentence of not less than 5 years
and not more than 30 years in prison. While even minor punishments
can chill protected speech, this case provides a textbook example
of why we permit facial challenges to statutes that burden expression.
With these severe penalties in force, few legitimate movie producers
or book publishers, or few other speakers in any capacity, would
risk distributing images in or near the uncertain reach of this
law. The Constitution gives significant protection from overbroad
laws that chill speech within the First Amendment's vast and privileged
sphere. Under this principle, the CPPA is unconstitutional on its
face if it prohibits a substantial amount of protected expression.
The sexual abuse of a child is a most serious crime and an act
repugnant to the moral instincts of a decent people. In its legislative
findings, Congress recognized that there are subcultures of persons
who harbor illicit desires for children and commit criminal acts
to gratify the impulses. Congress also found that surrounding the
serious offenders are those who flirt with these impulses and trade
pictures and written accounts of sexual activity with young children.
Congress may pass valid laws to protect children from abuse, and
it has. The prospect of crime, however, by itself does not justify
laws suppressing protected speech. It is also well established that
speech may not be prohibited because it concerns subjects offending
our sensibilities. As a general principle, the First Amendment bars
the government from dictating what we see or read or speak or hear.
The freedom of speech has its limits; it does not embrace certain
categories of speech, including defamation, incitement, obscenity,
and pornography produced with real children. While these categories
may be prohibited without violating the First Amendment, none of
them includes the speech prohibited by the CPPA.
The CPPA prohibits speech despite its serious literary, artistic,
political, or scientific value. The statute 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. Under the CPPA, images are prohibited so long
as the persons appear to be under 18 years of age. This is higher
than the legal age for marriage in many States, as well as the age
at which persons may consent to sexual relations. (48 States permit
16-year-olds to marry with parental consent); (in 39 States and
the District of Columbia, the age of consent is 16 or younger).
It is, of course, undeniable that some youths engage in sexual activity
before the legal age, either on their own inclination or because
they are victims of sexual abuse.
Both themes--teenage sexual activity and the sexual abuse of children--have
inspired countless literary works. William Shakespeare created the
most famous pair of teenage lovers, one of whom is just 13 years
of age. See Romeo and Juliet, act I, sc. 2, l. 9 ('She hath
not seen the change of fourteen years '). In the drama, Shakespeare
portrays the relationship as something splendid and innocent, but
not juvenile. The work has inspired no less than 40 motion pictures,
some of which suggest that the teenagers consummated their relationship.
Shakespeare may not have written sexually explicit scenes for the
Elizabethean audience, but were modern directors to adopt a less
conventional approach, that fact alone would not compel the conclusion
that the work was obscene.
Contemporary movies pursue similar themes. Last year's Academy
Awards featured the movie, Traffic, which was nominated for
Best Picture. The film portrays a teenager, identified as a 16-year-old,
who becomes addicted to drugs. The viewer sees the degradation of
her addiction, which in the end leads her to a filthy room to trade
sex for drugs. The year before, American Beauty won the Academy
Award for Best Picture. In the course of the movie, a teenage girl
engages in sexual relations with her teenage boyfriend, and another
yields herself to the gratification of a middle-aged man. The film
also contains a scene where, although the movie audience understands
the act is not taking place, one character believes he is watching
a teenage boy performing a sexual act on an older man.
Our society, like other cultures, has empathy and enduring fascination
with the lives and destinies of the young. Art and literature express
the vital interest we all have in the formative years we ourselves
once knew, when wounds can be so grievous, disappointment so profound,
and mistaken choices so tragic, but when moral acts and self-fulfillment
are still in reach. Whether or not the films we mention violate
the CPPA, they explore themes within the wide sweep of the statute's
prohibitions. If these films, or hundreds of others of lesser note
that explore those subjects, contain a single graphic depiction
of sexual activity within the statutory definition, the possessor
of the film would be subject to severe punishment without inquiry
into the work's redeeming value. This is inconsistent with an essential
First Amendment rule: The artistic merit of a work does not depend
on the presence of a single explicit scene.
Ferber upheld a prohibition on the distribution and sale
of child pornography, as well as its production, because these acts
were 'intrinsically related' to the sexual abuse of children in
two ways. First, as a permanent record of a child's abuse, the continued
circulation itself would harm the child who had participated. Like
a defamatory statement, each new publication of the speech would
cause new injury to the child's reputation and emotional well-being.
Second, because the traffic in child pornography was an economic
motive for its production, the State had an interest in closing
the distribution network. 'The most expeditious if not the only
practical method of law enforcement may be to dry up the market
for this material by imposing severe criminal penalties on persons
selling, advertising, or otherwise promoting the product.' Under
either rationale, the speech had what the Court in effect held was
a proximate link to the crime from which it came.
In contrast to the speech in Ferber, speech that itself is the record
of sexual abuse, the CPPA prohibits speech that records no crime
and creates no victims by its production. Virtual child pornography
is not 'intrinsically related' to the sexual abuse of children,
as were the materials in Ferber. 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.
The Government says these indirect harms are sufficient because,
as Ferber acknowledged, child pornography rarely can be valuable
speech. ('The value of permitting live performances and photographic
reproductions of children engaged in lewd sexual conduct is exceedingly
modest, if not de minimis'). This argument, however, suffers from
two flaws. First, Ferber's judgment about child pornography was
based upon how it was made, not on what it communicated. The case
reaffirmed that where the speech is neither obscene nor the product
of sexual abuse, it does not fall outside the protection of the
First Amendment. ('[T]he distribution of descriptions or other depictions
of sexual conduct, not otherwise obscene, which do not involve live
performance or photographic or other visual reproduction of live
performances, retains First Amendment protection').
The second flaw in the Government's position is that Ferber did
not hold that child pornography is by definition without value.
On the contrary, the Court recognized some works in this category
might have significant value, see id., at 761, but relied on virtual
images--the very images prohibited by the CPPA-- as an alternative
and permissible means of expression: '[I]f it were necessary for
literary or artistic value, a person over the statutory age who
perhaps looked younger could be utilized. Simulation outside of
the prohibition of the statute could provide another alternative.'
Id., at 763. Ferber, then, not only referred to the distinction
between actual and virtual child pornography, it relied on it as
a reason supporting its holding. Ferber provides no support for
a statute that eliminates the distinction and makes the alternative
mode criminal as well.
The Government seeks to justify its prohibitions in other
ways. It argues that the CPPA is necessary because pedophiles may
use virtual child pornography to seduce children. There are many
things innocent in themselves, however, such as cartoons, video
games, and candy, that might be used for immoral purposes, yet we
would not expect those to be prohibited because they can be misused.
The Government, of course, may punish adults who provide unsuitable
materials to children, and it may enforce criminal penalties for
unlawful solicitation. The precedents establish, however, that speech
within the rights of adults to hear may not be silenced completely
in an attempt to shield children from it. In Butler v. Michigan,
352 U. S. 380, 381 (1957), the Court invalidated a statute prohibiting
distribution of an indecent publication because of its tendency
to 'incite minors to violent or depraved or immoral acts.' A unanimous
Court agreed upon the important First Amendment principle that the
State could not 'reduce the adult population ... to reading only
what is fit for children.' We have reaffirmed this holding.
Here, the Government wants to keep speech from children not to
protect them from its content but to protect them from those who
would commit other crimes. The principle, however, remains the same:
The Government cannot ban speech fit for adults simply because it
may fall into the hands of children. The evil in question depends
upon the actor's unlawful conduct, conduct defined as criminal quite
apart from any link to the speech in question. This establishes
that the speech ban is not narrowly drawn. The objective is to prohibit
illegal conduct, but this restriction goes well beyond that interest
by restricting the speech available to law-abiding adults.
The Government submits further that virtual child pornography whets
the appetites of pedophiles and encourages them to engage in illegal
conduct. This rationale cannot sustain the provision in question.
The mere tendency of speech to encourage unlawful acts is not a
sufficient reason for banning it. The government 'cannot constitutionally
premise legislation on the desirability of controlling a person's
private thoughts.' First Amendment freedoms are most in danger when
the government seeks to control thought or to justify its laws for
that impermissible end. The right to think is the beginning of freedom,
and speech must be protected from the government because speech
is the beginning of thought.
The Government next argues that its objective of eliminating
the market for pornography produced using real children necessitates
a prohibition on virtual images as well. Virtual images, the Government
contends, are indistinguishable from real ones; they are part of
the same market and are often exchanged. In this way, it is said,
virtual images promote the trafficking in works produced through
the exploitation of real children. The hypothesis is somewhat implausible.
If virtual images were identical to illegal child pornography, the
illegal images would be driven from the market by the indistinguishable
substitutes. Few pornographers would risk prosecution by abusing
real children if fictional, computerized images would suffice.
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE SCALIA
join as to Part II, concurring in the judgment in part and dissenting
Although in my view the CPPA's ban on youthful-adult pornography
appears to violate the First Amendment, the ban on virtual-child
pornography does not. It is true that both bans are authorized by
the same text: The statute's definition of child pornography to
include depictions that 'appea[r] to be' of children in sexually
explicit poses. 18 U. S. C. §2256(8)(B). Invalidating a statute
due to overbreadth, however, is an extreme remedy, one that should
be employed 'sparingly and only as a last resort.' We have observed
that '[i]t is not the usual judicial practice, . . . nor do we consider
it generally desirable, to proceed to an overbreadth issue unnecessarily.'
Although 18 U. S. C. §2256(8)(B) does not distinguish
between youthful-adult and virtual-child pornography, the CPPA elsewhere
draws a line between these two classes of speech. The statute provides
an affirmative defense for those who produce, distribute, or receive
pornographic images of individuals who are actually adults, but
not for those with pornographic images that are wholly computer
generated. This is not surprising given that the legislative findings
enacted by Congress contain no mention of youthful-adult pornography.
Those findings focus explicitly only on actual-child pornography
and virtual- child pornography. ('[T]he danger to children who are
seduced and molested with the aid of child sex pictures is just
as great when the child pornographer or child molester uses visual
depictions of child sexual activity produced wholly or in part by
electronic, mechanical, or other means, including by computer, as
when the material consists of unretouched photographic images of
actual children engaging in sexually explicit conduct'). Drawing
a line around, and striking just, the CPPA's ban on youthful-child
pornography not only is consistent with Congress' understanding
of the categories of speech encompassed by §2256(8)(B), but
also preserves the CPPA's prohibition of the material that Congress
found most dangerous to children.
In sum, I would strike down the CPPA's ban on material that 'conveys
the impression' that it contains actual-child pornography, but uphold
the ban on pornographic depictions that 'appea[r] to be' of minors
so long as it is not applied to youthful-adult pornography.
To read more about the case and the history of child pornography
Return to VAW Module II
Go to Part 2 - Child Pornography