Litigation continued during 1998 over the constitutionality of the Child Pornography Prevention Act of 1996 (CPPA), the so-called "Dirty Pixels" law. In United States v. Hilton, 999 F. Supp. 131 (D. Maine 1998), the U.S. District Court for the District of Maine held that the law violated the First Amendment because it is both vague and overly broad. As a result, the two federal courts that have reviewed the law since its passage have reached opposite results. In 1997, the U.S. District Court for the Northern District of California held that the law is constitutional in a summary judgment ruling. The Free Speech Coalition v. Reno, 25 Media L. Rep. 2305 (N.D. Cal. Aug. 12, 1997) (not reported in F. Supp.).

Background

   Congress adopted the CPPA to crack down on "high-tech kiddie porn" by prohibiting the possession, sale, receipt, or distribution of computer-generated images that "appear to depict minors engaging in sexually explicit conduct.ý Even before the 1996 amendment, federal law prohibited distribution of prohibited materials "by computer" and there have been a number of convictions for individuals who distributed child pornography on-line. See, e.g., United States v. Kimbrough, 69 F.3rd 723 (5th Cir. 1995) cert. denied, 116 S. Ct. 1547 (1996); United States v. Maxwell, 42 M.J. 568 (A.F. 1995); United States v. Canada, 921 F. Supp. 362 (E.D. La. 1996). The FBI states that there have been more than 200 criminal convictions for the distribution of child pornography by computer.

   The Protection of Children Against Sexual Exploitation Act of 1977, as previously amended, was enacted to protect children who are exploited in the production of sexually explicit materials. A prerequisite to prosecution under the law was the use of actual minors in the production of the illegal materials. The Dirty Pixels law eliminated this requirement. The CPPA was predicated on the assumption that computer-generated child pornography that does not necessarily involve the use of children in its production is used as "a tool of incitement for pedophiles and child molesters, and a tool of seduction for child victims." S. Rep. No. 104-358, at 19 (1996). The law also amended the Privacy Protection Act, which limits the ability of law enforcement authorities to conduct searches and seizures of newsrooms. The committee report noted that the possibility of civil suits against law enforcement officials may chill their investigative activities where the targets of a probe may include "a newspaper, book, broadcast, or other similar form of public communications." S. Rep. at 23.

Litigation

   Unlike Free Speech Coalition v. Reno, which involved a facial challenge to the CPPA, the decision in United States v. Hilton resulted from a prosecution of an individual under the law. The defendant argued that the law is unconstitutional because it bans constitutionally protected adult pornography and because it is both vague and overly broad. The court rejected the first argument, reasoning that the CPPA is a content-neutral attempt to combat the harmful secondary effects of child pornography. It characterized the law as a time, place, or manner regulation of speech. It found that "the harmful effects of pornography depicting persons who appear to be children will be identical to those of pornography depicting actual children, with the exception of the harm resulting from personal involvement in the production of the pornography." Hilton, 999 F. Supp. at 134. The court also concluded that the law is narrowly tailored.

   At the same time, however, the court found that the CPPA is unconstitutionally vague because it "fails to clarify with sufficient definiteness the conduct which is prohibited." Id. at 136. It pointed out that the law's definition of "child pornography" creates substantial uncertainty regarding the legal status of materials depicting "post-pubescent individuals" in terms of whether those depicted "have yet reached eighteen years of age." The court found it to be "equally difficult" to classify computer-generated images "according to this subjective standard," and concluded that the statutory vagueness rendered the CPPA to be substantially overbroad. Id.

   An appeal of the district court's Hilton decision was argued before the U.S. Court of Appeals for the First Circuit in October 1998, while the appeal in Free Speech Coalition was argued before the Ninth Circuit in March. The two cases foreshadow a possible Supreme Court showdown on the constitutionality of the CPPA.