Protecting children--and free speech.

In Ashcroft v. The Free Speech Coalition, (1) the Supreme Court, in a 7-2 decision written by Justice Anthony Kennedy, struck down two provisions of the federal Child Pornography Prevention Act of 1996 (CPPA). (2)

The first provision, subsection B, banned "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." (3) Thus, it would criminalize sexual depictions of youthful adults if they appeared to be minors. As the Court noted, "The prohibition ... does not depend at all on how the image is produced." (4) It could include Renaissance paintings as well as "virtual pornography"--computer-generated images that appear to depict children engaged in sex, even though no children were actually involved in their production.

The second provision, subsection D, defined child pornography to include any sexually explicit image that was "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression" that it depicts "a minor engaging in sexually explicit conduct." (5) Thus, the statute banned material that did not even appear to depict children engaged in sexual activity. If the material had been advertised as depicting such activity, anyone who possessed it, not just its producers, could be prosecuted. (6)

The Court did not consider subsection C, the provision that prohibits "computer morphing"--altering pictures of children to make them appear to be having sex--and, thus, it remains in force. (7)

Ashcroft relies on three key terms: "obscenity," "pornography," and "child pornography." In general, under the First Amendment, the government cannot criminalize material that is not obscene. Courts conclude that material is "obscene," and therefore may be criminalized, if it fails the three-part test of Miller v. California. (8) Under Miller, the prosecution must prove that "the work, taken as a whole, appeals to the prurient interest, is patently offensive in light of community standards, and lacks serious literary, artistic, political, or scientific value." (9)

"Pornography" includes sexually explicit material that remains legal because it passes the Miller test. "Child pornography" includes sexually explicit material that is not legally obscene but can be criminalized, as the Court held in New York v. Ferber, because its production involves the use of children. (10)

The CPPA went further than previous statutes and sought to criminalize sexually explicit material that was neither obscene nor produced using children. As the Court noted,

   The materials need not appeal to the prurient interest. Any depiction of
   sexually explicit activity, no matter how it is presented, is proscribed.
   The CPPA applies to a picture in a psychology manual, as well as a movie
   depicting the horrors of sexual abuse. It is not necessary, moreover, that
   the image be patently offensive. Pictures of what appear to be 17-year-olds
   engaging in sexually explicit activity do not in every case contravene
   community standards. (11)

The Court continued, "The statute proscribes the visual depiction of an idea--that of teenagers engaged in sexual activity--that is a fact of modern society and has been a theme in art and literature throughout the ages." (12) The majority went on to refer to such familiar works as Shakespeare's Romeo and Juliet and the movie American Beauty as examples of material that could run afoul of the statute.

In short, all the arguments that support taking a narrow view of what material can be banned as obscene can be applied to the CPPA if protecting children abused by the production process--Ferber's rationale--is not an issue.

The government's case

The government argued that virtual child pornography is dangerous because it could "lead to actual instances of child abuse," but the Court said there was no proof of that. (13) The government also asserted that "pedophiles may use virtual child pornography to seduce children." The Court noted that such use could be criminalized, but "the government cannot ban speech fit for adults simply because it may fall into the hands of children." (14)

A third government claim was that "virtual child pornography whets the appetites of pedophiles and encourages them to engage in illegal conduct," but the Court held that "the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it." (15)

The objective of driving child pornography from the market required banning both real and virtual forms of it, the government argued, since they might be indistinguishable. The majority said that this was "implausible," because if the two really were indistinguishable, no one would risk prosecution by using real children to create pornographic images. (16)

While this is probably an accurate assessment of how pornographers would behave in the United States and other countries that prohibit exploiting children, the Court's statement does not account for pornography produced in countries where it is cheaper and easier to use actual children. If real and virtual child pornography were actually indistinguishable, distributors of foreign material could defend on the ground that the government couldn't prove that real children were used. But it is unlikely that foreign producers could make their product indistinguishable from computer-generated images.

The government countered by arguing that, at least, the burden of proof should be shifted to defendants, as the CPPA does, to show that the images were made "using only adults and were not ... distributed in a manner conveying the impression that they depicted real children." (17)

The Court responded that "if the evidentiary issue is a serious problem for the government, as it asserts, it will be at least as difficult for the innocent possessor. (18) However, in the end, the Court did not resolve the burden-of-proof question because the defense was incomplete: It only applied to distributers, not to possessors. Even if a possessor could show that the material was produced using only adult actors, he or she would still be guilty under the statute. The defense also did not apply to virtual pornography.

The Court concluded that since the provision banning sexually explicit depictions of minors "abridges the freedom to engage in a substantial amount of lawful speech," it had to be struck down.

The Court also struck down subsection D of the statute, which barred advertising or promoting sexually explicit images to suggest that they involve minors. Ironically, this provision would punish someone who possessed material that was not child pornography, simply because the distributor or promoter had suggested that it was. Observing that "the government does not offer a serious defense of this provision," the Court ruled that it was overbroad and therefore unconstitutional. (19)

Justice Clarence Thomas, concurring in the result, did not disagree with the majority's reasoning. But he observed that if technology were to "evolve to a point where it becomes impossible to enforce actual child pornography laws because the government cannot prove that certain pornographic images are of real children," he might support a narrowly drawn restriction on virtual child pornography. (20)

Justice Sandra Day O'Connor concurred in part and dissented in part. She agreed with the majority that subsection D's advertising and promotion provisions and the part of subsection B prohibiting depictions of "youthful adults" were unconstitutional. But she disagreed that the statute's ban on virtual child pornography violated the First Amendment, citing the danger that children could be "seduced and molested with the aid of child sex pictures," whether virtual or real. (21) She did not explain why this rationale would not also apply to pictures of youthful adults that appear to be of children. Perhaps the reason is that such pictures would, at worst, appear to be of teenagers rather than of younger children.

O'Connor agreed with the government's argument that pornographers who use real children might not be apprehended because real and virtual images might be indistinguishable. That argument was the government's most effective, with four justices expressing concern about this problem.

Chief Justice William Rehnquist, joined by Justice Antonin Scalia, dissented, arguing that the statute could--and should--be read narrowly so as not to apply to "simple distribution or possession of a film with literary or artistic value...." (22) In fact, Rehnquist said, "other than computer-generated images that are virtually indistinguishable from real children engaged in sexually explicit conduct, the CPPA can be limited so as not to reach any material that was not already unprotected" before the act became law. (23)

While Rehnquist's view of what material was "already unprotected" may differ from the majority's, this case shows considerable agreement among the nine justices about the act's overbreadth. The major disagreement is whether computer-generated child pornography that is virtually indistinguishable from real children engaged in sexually explicit conduct can be banned. Otherwise, the dissenters generally agree that the ambitious censorship sought to be achieved by the CPPA must be curbed, though they would do so by reading the statute narrowly rather than by finding it unconstitutional.

This agreement on the part of a Republican-dominated Supreme Court makes one wonder what Congress was doing when it passed the egregiously overbroad statute that led to "a wide swath of self-censorship" in the movie industry. (24) (It's easier to see why then-President Clinton, who couldn't afford to be seen as in any way encouraging child pornography, signed it.) It seems likely that Congress was engaging in its common tactic of passing legislation that it can hold out as solving a problem while leaving it to the courts to assess the constitutionality of the solution. (25)

Shortly after the Court's decision, a new bill, H.R. 4623, was introduced in the House of Representatives. This bill limits the CPPA's prohibition to a "visual depiction" that is "a computer image or computer-generated image that is, or appears virtually indistinguishable from, that of a minor engaging in sexually explicit conduct." (26)

But this bill will satisfy only the two dissenters and O'Connor. The majority did not exempt virtual pornography from its holding. On the contrary, it rejected the government's argument that virtual pornography must be forbidden because it may be hard to distinguish from real pornography: "The 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." (27)

Nor is the bill drafted narrowly to comport with Thomas's concern that future technological developments might render it impossible to prove that a given piece of material was produced using real children. The bill forbids material that "appears virtually indistinguishable" from real pornography, suggesting that what counts is the effect on viewers, rather than any problems with proving the prosecution's case.

If the time comes when virtual child pornography is indistinguishable from real child pornography, some regulations to criminalize the former may be necessary, as Thomas noted. A simple requirement that makers of the virtual form clearly mark their work as such, on pain of being prosecuted to the same extent as producers of real child pornography, would seem to solve the problems raised by the concurring and dissenting justices without chilling large amounts of protected speech.

As for the producer who uses real children but marks his film or photograph "virtual," I am inclined to agree with O'Connor that the societal interest in protecting virtual child pornography is less than its interest in protecting the other material banned by the CPPA. Accordingly, I would not be troubled by putting the burden on the producer to prove that no actual children were used in the production. But, as the Court points out, it is unfair to place this burden on mere possessors. Prosecution of producers and distributors will adequately discourage this activity.

Also, we should not forget that pornography, whether virtual or real, that appeals to the prurient interest and lacks serious value can still be banned as obscene, notwithstanding the Ashcroft decision.

Notes

(1.) 122 S. Ct. 1389 (2002).

(2.) 18 U.S.C. [subsection] 2251-2260 (2000).

(3.) 18 U.S.C. [section] 2256(8)(B).

(4.) Ashcroft, 122 S. Ct. 1389, 1397.

(5.) 18 U.S.C. [section] 2256(8)(D).

(6.) Ashcroft, 122 S. Ct. 1389, 1398.

(7.) 18 U.S.C. [section] 2256(8)(C).

(8.) 413 U.S. 15 (1973).

(9.) Ashcroft, 122 S. Ct. 1389, 1399 (citing Miller, 413 U.S. 15, 24).

(10.) 458 U.S. 747 (1982).

(11.) Ashcroft, 122 S. Ct. 1389,1400.

(12.) Id.

(13.) Id. at 1402.

(14.) Id. at 1403.

(15.) Id.

(16.) Id. at 1404.

(17.) Id. (citing 18 U.S.C. [section] 2252A (c)).

(18.) Id.

(19.) Id. at 1405.

(20.) Id. at 1406 (Thomas, J., concurring).

(21.) Id. at 1410 (O'Connor, J., concurring in part and dissenting in part).

(22.) Id. at 1411 (Rehnquist, C.J., dissenting).

(23.) Id.

(24.) Linda Greenhouse, `Virtual' Child Pornography Ban Overturned, N.Y. TIMES, Apr. 17, 2002, at A16 (quoting John H. Weston, an entertainment lawyer).

(25.) See Craig Bradley, Racketeering and the Federalization of Crime, 22 AM. CRIM. L. REV. 213 (1984).

(26.) Child Obscenity and Pornography Act of 2002, H.R. 4623, 107th Cong. (2002).

(27.) Ashcroft, 122 S. Ct. 1389, 1404.

Craig M. Bradley is the James Louis Calamaras Professor of Law at Indiana University School of Law in Bloomington. He can be reached by e-mail at [e-mail].