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Violence Against Women on the Internet

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
v.
THE FREE SPEECH COALITION et al.
No. 00-795
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.

I

Before 1996, Congress defined child pornography as … images 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 intercourse.' §2256(2).

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 child pornography.

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. …

II

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.

III

… 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.

DISSENTING OPINION

JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join as to Part II, concurring in the judgment in part and dissenting in part.

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 law, see
http://www.pbs.org/wgbh/pages/frontline/shows/porn/prosecuting/supreme.html#2

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