H.   Fifth Circuit Backs ‘Dirty Pixels’ Law; Supreme Court Hears Argument

     Ruling in 2001, the U.S. Court of Appeals for the Fifth Circuit joined the First, Fourth, and Eleventh circuits in upholding the Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. Sec. 2252A, the so-called “Dirty Pixels” law.

     Only the Ninth Circuit (in a split panel decision) has invalidated, as unconstitutionally vague and overbroad, portions of the CPPA that criminalize “virtual” child pornography -- that is, visual depictions that “appear” to be of minors or that “convey” the impression that a minor is engaging in sexually explicit conduct.  The U.S. Supreme Court, however, agreed to review the Ninth Circuit panel opinion after the full Ninth Circuit denied a rehearing en banc.  The Court heard argument on Oct. 30, 2001.

Fifth Circuit: United States v. Fox

     In United States v. Fox, 248 F.3d 394 (5th Cir. 2001), George Fox challenged on several grounds his conviction and sentencing under the CPPA.  Mr. Fox’s constitutional challenge was that the CPPA relies on a definition of child pornography that is overbroad and vague, a claim the court reviewed by applying strict scrutiny to this content-based restriction on speech.

     First, the court found a compelling governmental interest in protecting actual children from the danger posed when even virtual child pornography is used to seduce or coerce real children into sexual activity.  The destruction of the entire child pornography market and the “unwholesome environment” for children it fosters was added justification for the statute.  Id. at 402.

     The court next found that the CPPA is narrowly tailored using the least restrictive means to further the government’s interests.  The government’s interests in eradicating the market for child pornography as a whole and eliminating a means of coercing children into sexual activity could be effectively frustrated without targeting virtual child pornography.

    Without the “appears to be” statutory language, moreover, law enforcement efforts would be stymied by advances in computer technology that frequently create a built-in reasonable doubt as to the age or even the actual existence of the depicted child participant.  And the statutory affirmative defenses, though limited, confirmed the statute’s narrow tailoring.  Id. at 402-04.

     The court then found that the CPPA is not unconstitutionally overbroad.  That is, the statute does not “criminalize an intolerable range of constitutionally protected conduct ... in relation to the statute’s plainly legitimate sweep.”  Id. at 404.  This is because the court found that “Congress intended the ‘appears to be’ language of the statute to target only those images that are ‘virtually indistinguishable to unsuspecting viewers from unretouched photographs of actual children.’”  Id. at 405 (emphasis in original) (quoting S. Rep. No. 104-358, at 7 (1996)).  Thus, “the vast majority of every day artistic expression” is outside the statute’s reach.  Fox, 248 F.3d at 405.

Ninth Circuit: No Rehearing

     A majority of the active judges on the Ninth Circuit failed to vote for a rehearing en banc of the circuit’s 2-to-1 panel decision that invalidated, as unconstitutionally vague and overbroad, portions of the CPPA that criminalize visual depictions that “appear” to be of minors or that “convey” the impression that a minor is engaging in sexually explicit conduct.  The Free Speech Coalition v. Reno, 220 F.3d 1113 (9th Cir. 2000).

     Three members of the court, however, dissented from the denial of en banc review because the panel opinion “creates a conflict with our sister circuits on an issue of exceptional importance.”  Id. at 1114.  The dissent felt that the panel majority had inappropriately slighted two compelling governmental interests involved in safeguarding the physical and psychological well-being of children.

     First, realistic, albeit computer-generated, images of children engaging in sexually explicit conduct may be used by pedophiles to seduce other children into sexual activity.  Second, to prosecute child pornography without the expanded reach of the CPPA, the government has to meet its burden of showing that a pornographic image is of a real child.

     But it is becoming “increasingly difficult, if not impossible, to distinguish computer-generated from photographic depictions of child sexual activity.”  Id. Thus the dissent was concerned that the CPPA is necessary to ensure the government’s ability to enforce prohibitions of actual child pornography.  According to the dissent: “The panel majority elevates the free speech rights of pedophiles over the compelling governmental interest in protecting our children.”  Id. at 1115-16.

Supreme Court Oral Argument

     Given the split among a number of circuits on the constitutionality of the CPPA, it is not surprising that the Supreme Court granted certiorari.  Ashcroft v. The Free Speech Coalition (No. 00-795).  Child pornography, whether real or virtual, is hardly popular either with the public or the judiciary and is considered of minimal, if any, value.  Moreover, the Court often has recognized that the government has a compelling interest in protecting the physical and psychological well-being of children.  It becomes difficult, then, for the First Amendment argument to prevail in a case like Ashcroft.  

     The Association of American Publishers, however, led a group of organizations filing an amicus brief urging the Court to resist the government’s attempt “to ban products of the human imagination” even when distasteful.  Ashcroft, Brief Amici Curiae of The Association of American Publishers, Inc., at 2.  In addition, the oral argument was more balanced than one might have expected.

     Justice Stevens, for example, noted that for child pornography using real people there is an affirmative defense: that the actors are in fact over 18.  If this adequately protects the government’s interests in the real-child case, he then asked the deputy solicitor general, why shouldn’t there be a comparable affirmative defense in the virtual case if the depiction does not use any real person under 18, even if it creates a different impression?  It would be the defendant’s problem either to prove the actual age of an actor or that the image is computer generated and not real.  Thus, is the CPPA narrowly tailored if it does not allow such a defense?  Ashcroft, Transcript of Oral Argument (Oct. 30, 2001) at 8-10.

     Moreover, Justice Breyer got the government’s attorney to concede that anyone who buys three films at a video store -- “Traffic,” “Lolita,” and “Titanic,” each with a scene of simulated sexual behavior by 17-year-olds -- would be guilty of a federal crime under the statute for the mere possession, with no affirmative defense.  Id. at 10-12.  The attorney argued that the government would not be able to prove the possessor’s requisite scienter as to the age of the actors, but the comment from the bench was: “I’m struck by what we’re supposed to do with a statute like this.”  Id. at 12.

     Another member of the Court apparently was troubled by the lack of any “patently offensive” requirement as to the sort of depicted sexual activity covered by the statute.  Id. at 17-18.  And Justice O’Connor noted that, in prior child pornography cases, the Court placed heavy reliance on harm to real children.  She pressed hard as to the government’s primary reliance when that factor is absent.  Id. at 21-22.  Another justice wanted to know why the obscenity standard from Miller, perhaps with some appropriate modifications for depictions of minors, isn’t sufficient to deal with this area.  Id. at 24-26.

     The respondent’s attorney did not have an easy time, either.  Justice Scalia immediately asked “what great works of art would be taken away from us” if the statute were upheld, and he scoffed at the popular examples given.  Id. at 30-31.  The attorney also was asked how Congress could draft a constitutional statute to deal with the problem concerning children.  Id. at 45-46.

     The justices speculated about placing a narrowing construction on the statute by limiting it to depictions that are virtually indistinguishable from the actual behavior of real children, despite the remaining problems of vagueness and chilling effect.  The statute also might be further narrowed by reading into it a broad requirement that there be an actual showing of sexual organs.  There was some discussion of the propriety of the Court rewriting statutes in this way, especially in the First Amendment area.  Some members of the Court appeared to be interested in proceeding case by case, rather than striking the statute on its face.