H.  Supreme Court: ‘Virtual’ Child

Pornography Ban Is Unconstitutional

 

      The Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. Sec. 2252A, the so-called “Dirty Pixels” law, criminalized “virtual” child pornography -- that is, visual depictions that “appear” to be of minors or that are promoted in a manner that “conveys the impression” that a minor is engaging in sexually explicit conduct.  Thirteen federal appellate judges, ruling in five different cases challenging the constitutionality of the CPPA, found the Act constitutional.  Only two judges on the U.S. Court of Appeals for the Ninth Circuit found the law violates the First Amendment.  The Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), reh’g and reh’g en banc denied, 220 F.3d 1113 (9th Cir. 2000).  The U.S. Supreme Court, however, dramatically affirmed the ruling of the Ninth Circuit.  Ashcroft v. The Free Speech Coalition, 535 U.S. 234 (2002).

 

Supreme Court’s Opinion

      The opinion of the Supreme Court is noteworthy not only for siding with the Ninth Circuit over four other circuits, but for doing so in a case protecting speech involving children (or at least “virtual” children) and sexual activity, a category of expression that is widely and strongly condemned. Not surprisingly, the opinion was written by Justice Anthony Kennedy, the Court’s most fervent champion of free speech.

      Justice Kennedy began by noting that the CPPA’s strictures are not limited to obscene depictions, nor to real child pornography that exploits actual children used in the production process.  So, given the “severe” criminal penalties the Act imposes, the case provided the Court with a “textbook example of why we permit facial challenges to statutes that burden expression.” Id. at 1398. Thus, the chilling effect from overbroad restrictions on speech render the CPPA “unconstitutional on its face if it prohibits a substantial amount of protected expression.”  Id. at 1399.

      The Court reaffirmed its important and well-established principles that the offensiveness of some speech is not a sufficient basis for government to suppress it, and so indecent but not obscene sexual expression is protected by the First Amendment.  Id. at 1399.  Similarly, the Court reiterated the central teaching of many crucial precedents that the government’s interest in protecting children does not support unnecessarily broad restrictions on the free speech rights of adults.  Id. at 1402-03.  Thus the Court acknowledged that to uphold the CPPA it would have to create a new category of unprotected speech -- virtual child pornography -- an approach the Court soundly rejected.  Id. at 1399.

      Justice Kennedy adroitly captured the rampant overbreadth of the CPPA by noting that it “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.”  Id. at 1400.  Interpretations of Shakespeare as well as recent Academy Award nominees might well come within the CPPA’s statutory definition and subject even the possessor of such films to draconian punishments.  Id. at 1400-01.  The Court therefore rejected treating “virtual” child pornography that “records no crime and creates no victims by its production” like real child pornography where “the images are themselves the product of child sexual abuse” and a permanent record of that abuse.  Id. at 1401-02.

      Justice Kennedy also quickly deflated the government’s argument that the CPPA is necessary “because pedophiles may use virtual pornography to seduce children.”  Justice Kennedy responded that “[t]here 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 them to be prohibited because they can be misused.”  Id. at 1402.  In other words, under the First Amendment, “[t]he prospect of crime ... by itself does not justify laws suppressing protected speech.”  Id. at 1399.

      The government also argued that “virtual child pornography whets the appetites of pedophiles and encourages them to engage in illegal conduct.”  Id. at 1403.  Whether this is true, or whether on balance virtual child pornography is more of a catharsis than a catalyst for pedophiles, the Court responded with the cardinal First Amendment principle: “The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.”  Id. 

      Justice Kennedy eloquently amplified this point by reminding us of the fundamental autonomy principle inherent in the First Amendment that too often is overshadowed by more instrumental goals of freedom of expression: “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.”  Id.

      The government’s argument that virtual child pornography is indistinguishable from the real thing, and therefore promotes trafficking in works that constitute child sexual abuse, seemed “somewhat implausible” to the Court.  Indeed, if the virtual works are truly indistinguishable, they should be perfect substitutes and drive legally risky, real child pornography from the market.  Id. at 1404.  More importantly, the government claimed the CPPA was necessary to avoid the difficulty the government otherwise will have in prosecuting real child pornography and having to show that the prosecuted material is real and not indistinguishable virtual images. 

      However, the Court responded that “[t]he argument, in essence, is that protected speech may be banned as a means to ban unprotected speech.  This analysis turns the First Amendment upside down.  The government may not suppress lawful speech as the means to suppress unlawful speech.  Protected speech does not become unprotected merely because it resembles the latter.”  Id.  And the Court would not allow the government to salvage the CPPA by treating it merely as imposing the burden on a defendant, through an affirmative defense, to show the speech is not unlawful.  Id. at 1404-05.

 

Other Justices’ Approaches

      Justice Sandra Day O’Connor, writing for herself, Justice Antonin Scalia, and Chief Justice William Rehnquist, partially concurred in the judgment and dissented in part.  She made an odd distinction between what she termed “youthful-adult pornography,” namely “pornographic images of adults that look like children,” and “virtual-child pornography” created on a computer without using any actual actors, adults, or children.  Id. at 1407.  She would interpret the statutory language “appears to be ... of a minor” as meaning “virtually indistinguishable” from images of actual children and uphold the CPPA applied only to virtual-child pornography and with this narrowing interpretation.  Id. at 1409. 

      Justice O’Connor takes this approach apparently because of her concern that such computer-generated images “whet the appetites of child molesters” and may allow producers of real child pornography to escape prosecution by claiming their images are not of real children.  Id.  But Justice O’Connor never adequately explains why she then takes a different approach to “youthful-adult pornography,” which she would protect even though it seems vulnerable to exactly the same concerns.

      Though he concurred in the judgment, Justice Clarence Thomas also was troubled by the government’s prosecution rationale.  He therefore suggested that should technology evolve to the point where computer-generated images are truly indistinguishable from pornographic images of real children, some regulation of virtual child pornography with “an appropriate affirmative defense or some other narrowly drawn restriction” might be sustainable.  Id. at 1406.

      Finally, Chief Justice Rehnquist, joined in part by Justice Scalia, dissented.  He would read the CPPA’s definition of “sexually explicit conduct” to reach only “hard core child pornography” that he believes Congress intended to reach and not “simulated” sexual activity.  Id. at 1411-12.  With this narrowing construction he would uphold the statute in its entirety.

 

Congressional Reaction

      Not surprisingly, Congress responded to the Court’s opinion in Ashcroft with new legislation to more narrowly attack virtual child pornography while attempting to address the Court’s constitutional objections.  One bill, H.R. 4623, had overwhelming support to ban computer-generated images that are “nearly indistinguishable ... from that of a minor engaging in sexually explicit conduct,” but retained many of the CPPA’s constitutional deficiencies. 

      A Senate measure, S. 2520, originally was more limited in that it tracked restrictions allowed for obscenity.  But an amendment endorsed by the Administration threatened to reintroduce constitutional difficulties.  See Jennifer A. Dlouhy, “Hatch substitute amendment to ‘virtual’ pornography bill pushes constitutional envelope,” CQ Weekly at 2816 (Oct. 26, 2002).  The legislative effort surely will continue in the next Congress.

 

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      Regardless of what Congress eventually does, the Supreme Court in Ashcroft successfully resisted inflamed and uninformed charges of its “siding with pedophiles over children” and issued a resounding reaffirmation of essential First Amendment principles.

 

--Laurence H. Winer