United States Supreme Court and Child Pornography Journalistic Essays

United States Supreme Court and Child Porn

On January 22, 2001, the United States Supreme Court granted the government's petition for review on the issue of the constitutionality of the 1996 Child Pornography Prevention Act (CPPA) in which Congress sought to modernize federal law by enhancing its ability to combat child pornography in the computer era.(Holder) An analysis of this move is the subject of this paper.

CPPA classifies an image that "appears to be" or "conveys the impression" of a minor engaging in sexually explicit acts as "virtual" child pornography. Such images include a photograph of a real child that may be scanned, replicated and manipulated by computer to create a sexually-oriented photo, or a wholly fake child that may be generated solely by computer graphics.

By enacting this law, Congress recognized a loophole in the child pornography law, in that technological improvements have made it possible for child pornographers to use computers to "morph" or alter innocent images of actual children to create a composite image showing them in sexually explicit poses.

With this in mind Congress intended to (1) ban computer-generated images that are "virtually indistinguishable" from those of real children, (2) to protect the privacy of actual children whose innocuous images are altered to create sexually explicit images and (3) to deprive child abusers of a "criminal tool" frequently used to facilitate the sexual abuse of children.

The Ninth Circuit in Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), struck down CPPA as a content-based restriction on protected speech not in furtherance of any compelling government interest because the prohibited images are not of actual children(Obscenity). According to that Court, "Because the 1996 Act attempts to criminalize disavowed impulses of the mind, manifested in illicit creative acts, we determine that censorship through the enactment of criminal laws intended to control an evil idea cannot satisfy the constitutional requirements of the First Amendment."(Free)

This ruling splits with other circuits: United States v. Hilton, 167 F.3d 61 (1st Cir. 1999) ("The government's interest in addressing these forms of child pornography is no less powerful than in instances where an actual child is used and abused during the production process. We will not second-guess Congress's decision to address the social ills posed by the various types of virtual child pornography."); United States v. Acheson, 195 F.3d 645 (11th Cir. 1999) ("Notwithstanding the risk of suppressing protected expression, Congress and the states are entitled to greater leeway in the regulation of pornographic depictions of children...)

In March 2000 in United States v. Pearl, the U.S. District Court for the District of Utah, Northern Division, upheld CPPA against vagueness and overbreadth challenges. The Court rejected the Free Speech holding and aligned itself instead with Hilton and Acheson finding the language of the statute "sufficiently narrowly tailored to promote the compelling government interest in preventing harm to actual children, based on substantiated Congressional findings that virtual pornography was used to seduce actual children into sexual activity, and thus comported with free speech guarantees."

WORKS CITED:

Free Speech Coalition v Reno. http://www.parrhesia.com/cp.html

Holder v. Free Speech Coalition, Docket No. 00-795). http://www.medill.northwestern.edu/docket/features2001.html

Obscenity Law Bulletin, July 2000.