Must the children be sacrificed: the tension between emerging imaging technology, free speech and protecting children.
This Note discusses the tension between the First Amendment of the United States Constitution (ratified over two hundred years ago), modern technologies, and the technologies' impact on statutory prohibitions against child pornography. This Note explores the constitutionality of two recently enacted federal statutes: 1) the Child Pornography Prevention Act of 1996 (the "1996 Act"); (2) and 2) the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (the "PROTECT Act"), (3) which seek to regulate digitally created (4) and morphed (5) images of child pornography. (6) Part II of this Note provides a background of the technologies involved, and Part III provides a history of the general statutory prohibitions against child pornography. Part IV discusses the case law history of pornography in general and child pornography in particular. Parts V and VI consider whether morphed and digital technologies can be constitutionally regulated to prevent child pornography. (7)
The Constitution's First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." (8) The First Amendment's ratification occurred when printing and photographic technologies were substantially primitive relative to current technologies. (9) In voting to approve the First Amendment, the ratifiers had no rational conception of how technology would change and how the First Amendment would affect the ability to digitally create and manipulate words and images. This Note addresses whether a legislature can prohibit the creation of either completely digital images or real images that are manipulated by computers that depict child pornography without running afoul of the First Amendment, which was ratified in a much different technological era.
II. BACKGROUND OF THE TECHNOLOGIES
Digital imaging's history starts over 300 centuries ago when Neanderthal man drew a picture of a bull on the walls of a cave. (10) The bull was drawn with multiple legs to give the bull an animated representation. (11) Digital imaging's modern catalyst is the Walt Disney Company, which in 1928 created the first animated film, Steamboat Willie. (12) This film essentially relied on analog (13) technology in which thousands of images, hand-drawn on clear celluloid material, were flipped rapidly in front of a camera to produce an illusion of movement. (14)
In 1951, the first videotape recorder captured live images from a television. (15) This emerging technology could convert visual, live images into electrical impulses and archive those electronic impulses onto magnetic tape for subsequent retrieval. (16) In the 1960s, the National Aeronautics and Space Administration (NASA) developed technology allowing the transmission of computerized and enhanced digital images to Earth from a lunar space probe. (17) In 1981, the Sony Corporation marketed their Mavica digital still video camera, the first consumer digital video device. (18)
The modern age of personal computing permits individuals to manipulate and store digital images in practically any way they desire. (19) A popular digital image manipulation software program, Adobe Photoshop, is available to anyone with a computer for $99. (20) For example, with Adobe Photoshop, an amateur computer user can digitally manipulate a family photograph to remove people who appear in the picture or even add people or individual anatomical parts. (21)
Visual images can be imported on a computer either by the use of a digital camera or digital video recorder. (22) Additionally, analog images can be scanned into a computer (and converted to digital images) or digital images can be imported on a magnetic disk or simply as a file over the Internet. (23) Alternatively, lifelike images can be created entirely via computer. (24)
Computer generated images of people have become so lifelike that there is a beauty contest devoted to representations of female computer images. (25) An article on the CNN web site contains a picture of a woman named Kaya, who looks entirely lifelike, but is really a Brazilian artist's digital creation. (26)
Technology now allows for two different methods of image production. The first is a virtual image that is produced using entirely fictitious computer generated features as demonstrated by Kaya, the digital woman. (27) The second method is a morphed image that starts with a traditional image and manipulates it by switching or adding features to a picture. An amateur can easily do this with Adobe Photoshop (28) digital manipulation software on a home computer. (29) Celebrities Alyssa Milano and Nancy Kerrigan commenced legal action when their heads were morphed by use of digital imaging manipulation onto pictures of nude women and placed on commercial Internet sites to be gawked at by voyeurs. (30)
III. HISTORY OF STATUTORY PROHIBITIONS AGAINST CHILD PORNOGRAPHY
This Note is concerned primarily with the collision of the First Amendment, statutory prohibitions against child pornography, and technology. A brief history of obscenity laws is helpful to understanding the current legislative posture regarding morphed and digital child pornography.
Congress enacted the first federal statute containing specific prohibitions against child pornography, the Protection of Children Against Sexual Exploitation Act of 1977 ("1977 Act"). (31) The 1977 Act made it a crime, punishable by a maximum fine of $15,000 or fifteen years in jail, for anyone to induce a minor to engage in sexually explicit conduct for the commercial purposes of producing any "visual or print medium." (32) Moreover, the 1977 Act criminalized the distribution of these offending materials. (33)
Congress subsequently passed the Child Protection Act of 1984 ("1984 Act"). (34) This legislation was a direct response to a United States Supreme Court case, New York v. Ferber, (35) which upheld the constitutionality of a New York State statute that prohibited child pornography even if the depictions contained within the visual or print medium were not obscene. (36) The 1984 Act eliminated the requirement that the image be obscene, and raised the age of minority from sixteen to eighteen years old. (37)
In 1986, then United States Attorney General, Edwin Meese, III, (38) released a report concerning pornography entitled "Attorney General's Commission on Pornography: Suggestions for Citizen and Community Action and Corporate Responsibility." (39) In direct legislative response to the Attorney General's report, Congress enacted a statute requiring producers of pornographic films to create and maintain records of the identities and ages of all performers to aid law enforcement in combating child pornography. (40) Currently, most adult websites display notices and disclaimers on their home page stating that their website complies with this statute. (41)
In another direct legislative response to a United States Supreme Court decision, Osborne v. Ohio, (42) Congress passed the Child Protection Restoration and Penalties Enhancement Act of 1990 ("1990 Act"). (43) The 1990 Act made the possession of "3 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction ... of a minor engaging in sexually explicit conduct" a crime punishable by incarceration of up to fifteen years. (44) The 1990 Act specifically excluded as a punishable offense the possession of materials containing words and not visual depictions. (45)
The 1977, 1984, and 1990 Acts all involved obscenity prohibitions related to real children. (46) In 1996, the United States Senate held hearings on the reformation of obscenity laws in light of new technology. (47) Their findings resulted in the passage of the 1996 Act. (48) The Senate found that new computer technologies allowed fake visual depictions to be made of child pornography that were indistinguishable from actual child pornography ("digital child pornography"). (49) Additionally, the Senate found that images of real children, even in non-pornographic settings, could be altered so that it appeared that the children were engaged in sexual acts ("morphed pornography"). (50)
The Senate found these digitally created and morphed images worthy of regulation and prohibition for several reasons, including: 1) morphed or digital pornography could be used to seduce real children into sexual activity; 2) morphed or digital pornography could be "used by pedophiles and child sexual abusers to stimulate and whet their own sexual appetites"; 3) morphed and digital images would make the enforcement of child pornography laws very difficult because law enforcement personnel would be unable to distinguish between fake/altered images and real images of child pornography; and 4) morphed and digital images are used in trade for real images of child pornography, thereby supporting the marketplace for actual child pornography. (51)
In light of these findings, Congress passed the 1996 Act, which prohibited child pornography where "such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct" (52) and "has been created, adapted, or modified to appear (53) that an identifiable minor is engaging in sexually explicit conduct." (54) These new provisions effectively prohibited both morphed and digital images of child pornography under threat of steep jail sentences of up to ten years for possession and thirty years for distribution. (55)
The 1996 Act's provisions prohibiting digital pornography were effectively held to be unconstitutional in the United States Supreme Court decision (56) Ashcroft v. The Free Speech Coalition. (57) The day the Supreme Court announced the Free Speech Coalition decision, Senator Orrin G. Hatch, a former Mormon Bishop and current Utah Senator, (58) issued a press release (59) stating his disappointment with the Court's decision. (60) Senator Hatch further stated that he would "craft new legislation" to reverse the Court's decision in Free Speech Coalition. (61)
Congress eventually passed the PROTECT Act. (62) The PROTECT Act deleted the 1996 Act's problematic "is, or appears to be, of a minor" language and substituted it with "is, or is indistinguishable (63) from ... a minor." (64)
Currently, federal statutes prohibit the following with respect to child pornography: 1) visual depictions, even if they are not obscene; (65) 2) the manner in which pornography is produced, in that records must be kept of the identities and ages of all participants; (66) 3) mere possession; (67) 4) morphed child pomography by way of the 1996 Act; (68) and 5) digital child pornography by way of the PROTECT Act. (69)
IV. HISTORY OF CASE LAW INVOLVING PORNOGRAPHY
A. DEFINITION OF OBSCENITY
The United States Supreme Court has long battled the competing and contentious values between the First Amendment's free speech provisions and the government's need to regulate obscene materials, specifically child pornography. (70) The tension between these competing values has been very difficult to judicially placate.
The Court has long recognized, as held in the 1942 case Chaplinsky v. New Hampshire, that "free speech is not absolute at all times and under all circumstances." (71) The Chaplinsky Court stated in dictum that "lewd and obscene" speech may not necessarily enjoy First Amendment protection. (72)
It took the Court fifteen years after Chaplinsky to specifically decide if obscene materials were protected by the First Amendment. (73) The Court found in Roth v. United States that the First Amendment did not protect obscene materials. (74) The Roth holding begs the bigger and more elusive question: What images are obscene?
In Roth, the Court determined that obscenity meant "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeal[ed] to [the] prurient (75) interest." (76) This obscenity definition was troubling, and did little to clarify this area of law; the Court spent the next sixteen years unsatisfactorily trying to utilize this definition. (77) The most candid expression of the Court's exasperation in developing a workable obscenity definition came from the words of Justice Stewart's concurrence in Jacobellis v. Ohio (78) where he wrote, in an oft-quoted statement, that while he may not be ever able to intelligibly define obscenity, "I know it when I see it...." (79)
In 1973, a majority of the Court in Miller v. California refined the Roth definition of obscenity, (80) ruling that an image is obscene and not worthy of First Amendment protection based on the following:
(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (81)
B. Definition of Obscenity as it Relates to Actual Children
The Court's view of mere possession of pornographic materials depends on whether the images are simply obscene or if the images contain child pornography. In a 1969 case, the Court held that mere private possession of obscene materials by an adult may not be made criminal. (82) The Court reasoned that "[i]f the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch." (83) However, the Court felt the interests of children outweighed any First Amendment right relating to the possession of child pornography. (84) In Osborne, the Court held that the reason to ban the mere possession of child pornography was to "protect the victims of child pornography [and] to destroy a market for the exploitative use of children." (85)
The Court's enlightened approach in favoring child protection over First Amendment free speech rights is exemplified in New York v. Ferber. (86) In Ferber, the Court was asked to uphold a New York State statute banning the distribution of child pornographic images, even if those images were not, pursuant to Miller, (87) obscene. (88) The particular images under review were of young boys masturbating. (89) These images, if depicting adult males, would not have been obscene under New York State law. (90)
The Ferber Court held that "[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance." (91) Harm comes to children in the production, distribution and continued existence of the pornographic images. (92) The Court noted, "the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child." (93) Additionally, the images are a permanent record of the physiological and emotional harm done to the child, which "is exacerbated by their circulation." (94)
The Ferber opinion stated that public policy demands that children not be exploited by production of these pornographic images and that consideration alone overrides any First Amendment concerns. (95) The Ferber court found additional justification for their holding in that: 1) the distribution of child pornography is related to sexual abuse of children; (96) 2) mere commerce in child pornography perpetuates an economic incentive to continue the production of child pornography; (97) and 3) there is no redeeming value in child pornography--it is unworthy of protection. (98)
C. Definition of Obscenity as It Relates to Digital or Morphed Child Pornography
A variety of plaintiffs, including: The Free Speech Coalition; (99) a publisher of books dealing with nudism; and individual erotic artists and photographers, commenced a pre-enforcement challenge (100) to the 1996 Act in federal district court. (101) The plaintiffs collectively argued that the 1996 Act prohibited constitutionally protected speech, was impermissibly vague and overbroad, and constituted objectionable "content-specific regulations and prior restraints on free speech." (102) The district court (103) decided the case on cross motions for summary judgment, holding that the 1996 Act "me[t] constitutional standards and [wa]s therefore constitutional as written." (104)
The plaintiffs appealed the district court's decision to the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit"). (105) In a de novo review of the district court's ruling, the Ninth Circuit reversed the district court, holding that "criminalizing all visual depictions" that did not involve real children ran afoul of the First Amendment. (106) Judge Ferguson authored a spirited dissent, finding that the legislature had provided sufficient evidence of digital pornography's harm to children in general, as opposed to the specific child involved in the production of the pornographic material, and that the 1996 Act's language was not substantially overbroad or vague. (107) The Ninth Circuit denied an en banc rehearing. (108)
In January 2001, the United States Supreme Court granted the government's petition (109) for certiorari. (110) Over twelve amicus curiae briefs were filed in this vigorously contested litigation, including briefs from: the National Center for Missing & Exploited Children (in support of the government); (111) a coalition of thirty-seven states and territories; (112) and the American Civil Liberties Union (in support of the Free Speech Coalition). (113) In a 6-3 decision, the Supreme Court struck down the prohibitions against digital pornography contained in the 1996 Act. (114) The Free Speech Coalition opinion dealt only with the constitutionality of digital pornography; the Coalition did not challenge morphed pornography, and the Court did not consider it." (115) However, the Court stated in dictum that morphed pornography might implicate the interests of real children and perhaps could be prohibited by the 1996 Act. (116)
In Free Speech Coalition, the Court stated its general rule that pornography can be banned only if it is obscene under Miller, (117) but that under Ferber, (118) all child pornography can be constitutionally outlawed. (119) Here, though, the Court was asked to uphold the 1996 Act, which prohibited computer generated images that "[were], or appear[ed] to be, of a minor engag[ing] in sexually explicit conduct." (120) The Court postulated that while its goal was the prohibition of digital pornography, the new law also potentially banned a "Renaissance painting depicting a scene from classical mythology" or perhaps a Hollywood movie using a performer who "appear[ed] to be" a child. (121)
While acknowledging the legislative rationale for a law that did not immediately implicate the interest of real children, (122) the Court nevertheless held that the government's reliance on Ferber's heightened standard of scrutiny for child pornography was misplaced. In Ferber, the danger to children was real since actual children were being harmed in the production of the pornography. (123) However, in Free Speech Coalition, there was no harm to actual children as the pornographic images were fictitious. (124) Moreover, the potential harm to real children was only speculative and there was only an "unquantified potential for subsequent criminal acts." (125) Indeed, in the Ferber decision, the Court speculated that virtual or substitute images may be an appropriate alternative when pieces of artistic work need an actor or actress who appears to be young. (126)
The Court rejected the government's position that the 1996 Act must stand because digital pornography was used by pedophiles to seduce children. (127) The Court noted that there were many other items that seduce children, (128) but that could not be banned simply because the objects could be used in a nefarious fashion. (129) Thus, to suppress speech, any ban must be narrowly drawn so as not to prohibit conduct or speech that is otherwise not subject to restriction. (130)
The Court also rejected the government's argument that digital pornography "whets the appetites of pedophiles," (131) noting American jurisprudence does not uphold regulations seeking to control a person's thoughts as opposed to their actions. (132) Likewise, the Court rejected the petitioner's argument that digital pornography promoted economic commerce in child pornography. (133) This argument was rejected as being nonsensical. (134) If digital pomography were truly indistinguishable, then child pornographers would not use real children and risk the severe punishments that attach to child pornography. Instead, child pornographers would only use digital pornography, causing the market for real child pornography to disappear and the attendant harm to children to be eliminated. (135) Finally, the Court rejected the argument that digital pornography made it difficult for law enforcement authorities to prosecute those who use real children in pornographic images. (136) The Court noted that the Constitution required that the "possible harm to society in permitting some unprotected speech to go unpunished [wa]s outweighed by the possibility that protected speech of others m[ight] be muted." (137) It was the government's burden to prove the particular speech was illegal, not the burden of the "accused to prove the speech [wa]s lawful." (138) Thus, the 1996 Act, as written, impermissibly shifted the burden of proof. (139)
In dissent, Chief Justice Rehnquist and Justice Scalia found the 1996 Act constitutional as written. (140) They argued that the statute's definition of "sexually explicit conduct" (141) would limit the applicability of the 1996 Act to the odious Ferber (142) conduct, which was void of merit and unworthy of constitutional protection. (143) The dissent further argued that the need for child pornography laws was compelling and a narrow reading of the 1996 Act was "not offensive to the First Amendment." (144)
D. Summary of the Current State of the Law for Child Pornography
In the immediate aftermath of Free Speech Coalition, Senator Hatch and his fellow legislators enacted the PROTECT Act. (145) Currently, morphed pornography (146) is banned by the provisions of the 1996 Act and digital pornography is prohibited by the PROTECT Act. (147)
V. ARE THE PROHIBITIONS AGAINST MORPHED PORNOGRAPHY AS CONTAINED IN THE 1996 ACT CONSTITUTIONAL?
Adjudication of the constitutionality of prohibitions against morphed pornography has not occurred in any United States federal court. In Free Speech Coalition, the respondents did not challenge the morphed pornography provisions of the 1996 Act. (148) Accordingly, the Court did not consider the issue. (149) However, had the Court considered the issue, or if it is considered in the future, they would likely find that the 1996 Act's provisions could constitutionally prohibit morphed pornography.
Morphed child pornography can conceivably be accomplished in a number of ways. (150) The first way is digitally adding anatomical features to an otherwise innocuous existing image of a child. For example, a typical picture of a father and daughter hugging could be perversely altered to show a sexual act. The second method is to take a posed picture of a child and, digitally, add anatomical features or remove clothing. (151) The third and fourth ways are to take a pornographic image of a child and remove any identifying features (such as digitally altering the face) or taking a pornographic image of an adult and swapping the face with that of a minor.
In Free Speech Coalition, the Court found that, in digital imaging, there was no actual harm to real children. (152) However, in any form of morphed pornography there is a clear harm to children, harm akin to that found in Ferber and Osborne. (153) In morphed pornography images, where a child is innocuously posed with the intent of later digitally altering the image to make it pornographic, the child model is still under the direction of a lecherous photographer or videographer. The Ferber Court found that process to be harmful to the well being of children. (154) Even in situations of morphed pornographic, where child and photographer are never in contact, a morphed, digitally altered picture would still exist. This Ferber-type "permanent record" of pornography is equally as harmful to a child's welfare and is further exacerbated by the continued circulation of the offending images over traditional print media and the Internet. (155)
Moreover, the morphed pornographic images lead to sexual abuse of children, provide economic incentive to continue child pornography, and have no redeeming social value. (156) Since there is harm to a child based on the above factors, the Court should have no qualms about finding the 1996 Act's prohibitions against morphed pornography constitutional. The harm that the 1996 Act sought to prevent outweighed the First Amendment's guarantees, and the legislation was narrowly tailored to achieve that end.
VI. ARE THE PROHIBITIONS AGAINST DIGITAL PORNOGRAPHY AS CONTAINED IN THE PROTECT ACT CONSTITUTIONAL?
When the Court found the prohibition against digital pornography to be unconstitutional, (157) Congress immediately passed the PROTECT Act, which removed the problematic "is, or appears to be, of a minor" language regarding digital pornography, and substituted it with "is, or is indistinguishable (158) from ... a minor." (159) The PROTECT Act sought to mollify the Court's concerns that the prohibitions against digital pornography were overbroad and covered constitutionally protected speech.
The "indistinguishable from" language of the PROTECT Act is more narrowly tailored from a constitutional point of view than the "is, or appears to be, of a minor" language of the 1996 Act. However, the "indistinguishable from" language could be found to be constitutionally offensive. The Court would likely strike down the statute once again as being overly broad.
The new "indistinguishable from" terminology goes a long way towards eliminating a whole group of activity that clearly does not harm children, but would nevertheless subject a person to criminal prosecution for child pornography. The new terminology explicitly excludes from its definition those images that are "drawings, cartoons, sculptures, or paintings." (160) For example, if a clearly animated film were produced that contained scenes of child pornography, such conduct, even though morally repulsive to the vast majority of adults, would not be subject to criminal sanction because the conduct is specifically excluded. (161) These exclusions are consistent with the Free Speech Coalition requirement that there be harm to real children in order to prohibit the conduct and not run afoul of the First Amendment. Likewise, the new exclusions explicitly eliminate other visual media that do not directly implicate the interests of real children. (162)
However, the PROTECT Act's new "indistinguishable from" language does little to exclude otherwise legal activity from being included within the ambit of prohibited activities--for example, when the director of a feature film needs an actress to depict a teenager engaged in sexual activity. (163) If the director were to use an actress over the age of eighteen, but who appeared to be younger, the director and all involved with the film could be subject to the substantial incarceration penalties of the PROTECT ACt because an ordinary and reasonable person could believe that an actual minor was engaged in sexually explicit conduct. Notably, this would be the effect that the director of the film intended. This exemplifies that the PROTECT Act is once again overbroad in its actual application and therefore will likely not stand the United States Supreme Court's constitutional scrutiny. The Court would likely strike down the PROTECT Act as it struck down the 1996 Act in Free Speech Coalition for being overly broad. (164)
Moreover, the "indistinguishable from" prohibition language will once again capture purely digital child pornography in its grasp. If a production of a completely digital child in a pornographic act was of such high quality that "an ordinary person viewing the depiction would conclude that the depiction [wa]s of an actual minor engaged in sexually explicit conduct," it would be a criminal act. However, the Court held in Free Speech Coalition, without the attendant harm to actual children, this new Congressional mandate was overbroad. (165) Since there is no actual harm to children that trumps First Amendment considerations, the law cannot be held to be constitutional.
The "indistinguishable from" language of the PROTECT Act provides some safe harbor for certain visual mediums (cartoon, drawings, etc.) but it does little to distinguish between real and digital child pornography and pornography whose performers look like children, but in reality are not. When the courts rule on the issue, the PROTECT Act will likely meet the same result as the 1996 Act and be found unconstitutional.
Questions considered by the Court involving the First Amendment are some of the most emotional and problematic ones. Speech that the vast majority of reasonable citizens would consider hurtful, offensive, or despicable is nevertheless protected by our Constitution. This includes cross-burning, (166) offensive language, (167) and Nazi demonstrations. (168) In general, it has been very difficult to regulate pornography; locales can only regulate pornography that violates the community standards test set forth in Miller. (169) We have seen that when the subjects of the pornography are children, the state's desire to prevent actual harm to real children outweighs the infringement of some First Amendment rights and that pornographic images of children can be regulated even if they are not inherently obscene under Miller. (170) However, like most statutes that seek to infringe a First Amendment right, any statute seeking to regulate child pornography must be narrowly tailored.
Advances in technology have allowed various forms of advanced digital imagery to take place. Our legislators have responded to this by trying to regulate these new forms of pornography. However, the regulators will fail and they regrettably must fail. Digital child pornography simply does not implicate the interests of real children and, therefore, while offensive, absent some compelling reason, cannot be used to infringe upon our First Amendment rights. There is more room for regulation with morphed pornography, as that form of digital manipulation implicates the interests of real children. The PROTECT Act is simply the 1996 Act restated, and when that legislation is litigated in the courts, it too will probably he found to be unconstitutional.
As a society, we pay a high price for our First Amendment rights. We must put up with cross-burnings, parades by groups whose mere existence is repugnant to persons of goodwill, offensive language on t-shirts, and now digital child pornography. The price is high, but the value of living in a society with free speech is even higher.
As Justice Kennedy most prolifically said when he delivered the opinion of the Court in Free Speech Coalition, "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." (171)
(1.) Noam Chomsky, Professor of Linguistics, Massachusetts Institute of Technology, Boston, Massachusetts. Professor Chomsky is a voracious writer and frequent critic of United States foreign policy. See Media Quotes, available at http://188.8.131.52/search?q=cache:uXfH-BLuT2YJ:www.publicaccesstv.net/ quotes (last visited Mar. 31, 2005) (on file with the Rutgers Computer and Technology Law Journal).
(2.) Child Pornography Prevention Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-26 to -31 (1996).
(3.) Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003, Pub. L. No. 108-21, 117 Stat. 650 (2003).
(4.) See discussion infra Part III.
(6.) There has been much debate in American jurisprudence on what exactly is obscene and what constitutes child pornography. Reasonable people can disagree about this subject to a point. See discussion infra Parts IV.A-B. This Note will briefly discuss the definition of child pornography as developed by the courts in case law and by the legislature in statutes, but a full discussion of the definitional aspect of obscenity and child pornography is beyond the scope of this Note. See id.
(7.) This Note explores only United States federal laws regulating digital and morphed images of child pornography. Many states have similar laws that regulate the same conduct. For example, New Jersey state statute 2C:24-4(b)(5)(a)-(b). Generally, state courts have arrived at the same conclusions as the United States Supreme Court regarding the constitutionality of these laws. See New Jersey v. May, 829 A.2d 1106 (App. Div. 2003) (holding that a state statute that prohibited purely digital images of child pornography was unconstitutional). Other countries have similarly passed statutes prohibiting digital and morphed pornography. See e.g., Great Britain Criminal Justice Act, 1988, [section] 160(4), which references the Protection of Children Act, 1978, [section] 1, as amended by the Criminal Justice and Public Order Act, 1994, [section] 84 (prohibiting production, distribution or possession of "pseudo-photographs"); Canadian Criminal Code [section] 163.1 (prohibiting computer generated pornography that "shows a person who is depicted" as a child).
(8.) U.S. CONST. amend. I.
(9.) Congress ratified the First Amendment to the United States Constitution in 1791. U.S. CONST. amend. I.
(10.) ROY P. MADSEN, ANIMATED FILM: CONCEPTS, METHODS, USES 3 (1969).
(12.) Id. at 9. In 1937, the Walt Disney Company released the first feature-length animated film, entitled Snow White and the Seven Dwarfs. Id.
(13.) In contrast to digital technology, analog is essentially when physical items represent data. For example, an analog watch is one in which the data (the time) is represented by the physical movement of the hands over the watch face. In a digital watch, the time is represented by a liquid crystal display in response to electronic stimulus within the computer chip of the watch. See Analog Watch--Definition of Analog Watch in Encyclopedia, available at http://encyclopedia. laborlawtalk.com/analog_watch (last visited Nov. 15, 2003) (on file with the Rutgers Computer and Technology Law Journal).
(15.) Mary Bellis, History of the Digital Camera, San Francisco Art Institute, available at http://inventors.about.com/library/inventors/bldigitalcamera.htm (last visited Nov. 15, 2003) (on file with the Rutgers Computer and Technology Law Journal).
(18.) ROBERT MCMAHAN, PIXEL PHOTOGRAPHY: AN ILLUSTRATED INTRODUCTION TO DIGITAL PHOTOGRAPHY 13 (1993).
(19.) For example, a specially built desktop computer with digital imaging manipulation software is available from the Dell Corporation web site for approximately $586. The desktop computer includes a high-speed processor, high capacity hard drive, special high definition, flat-panel monitor for image manipulation, and all necessary software. See Dell--Client & Enterprise Solutions, Software, Peripherals, Services, at http://www.dell.com (last visited Apr. 14, 2005) (on file with the Rutgers Computer and Technology Law Journal).
(20.) See Photo Software for Online Photo Albums and Digital Photo Printing, at http://www.adobe.com/products/photoshopel/main.html (last visited Apr. 21, 2005) (on file with the Rutgers Computer and Technology Law Journal).
(22.) STEVE BAVISTER, DIGITAL PHOTOGRAPHY, A No-NONSENSE, JARGON-FREE GUIDE FOR BEGINNERS 18-21 (2000).
(23.) Id. See also Kodak Easy Share Gallery, at http://www.kodakgallery.com/ HelpAnswerPopup.jsp?answer_url=http%3A%2F% (last visited Apr. 14, 2005) (on file with the Rutgers Computer and Technology Law Journal); Moving Theory into Practice: Digital Imaging Tutorial, at http://www.library.cornell.edu/ preservation/tutorial/technical/technicalC-04.html (last visited Apr. 14, 2005) (on file with the Rutgers Computer and Technology Law Journal).
(24.) See How We Do It, Pixar Studio, at http://www.pixar.com/howwedoit/ index.html (last visited Apr. 21, 2005) (on file with the Rutgers Computer and Technology Law Journal).
(25.) See Reuters, Italy Seeks Worm Beauty Queen, in Pixels, at http://www.cnn.com/2003/TECH/11/07/digital.diva.reut/index.html (last visited Apr. 21, 2005) (on file with the Rutgers Computer and Technology Law Journal). Visit the CNN web site to see an example of the reality in which purely digital images can take. See also Miss Digital World Project, at http://www.missdigitalworld.com/MDWContest/showpage/6 (last visited Apr. 21, 2005) (on file with the Rutgers Computer and Technology Law Journal).
(26.) Reuters, supra note 25.
(28.) See Photo Software for Online Photo Albums and Digital Photo Printing, supra note 20.
(29.) McMahan, supra note 18, at 134-38.
(30.) Do Stars Have any Rights?, TIME, July 27, 1998, at 52.
(31.) Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95-225, 92 Stat. 7 (1978).
(34.) Child Protection Act of 1984, Pub. L. No. 98-292, 98 Stat. 204-205 (1984).
(35.) 458 U.S. 747 (1982); see discussion infra Part IV.B.
(36.) 458 U.S. at 747, 749-50; Under the United States Supreme Court ruling in Miller v. California, 413 U.S. 15, 21 (1973), for materials to be considered obscene they must, taken as a whole, appeal to a prurient interest in sex and have no serious literary, artistic, political or scientific value. This replaced the previous view that the work must be "utterly without redeeming social value"; see discussion infra Part IV.A.
(37.) [section] 4, 98 Stat. 204; [section] 5, 98 Stat. 205.
(38.) Edwin Meese, III served in the administration of President Ronald Reagan. See Reagan Administration Cabinet Members at http://www.reagan. utexas.edu/archives/reference/cabinet.html (last visited Apr. 21, 2005) (on file with the Rutgers Computer and Technology Law Journal).
(39.) American Family Association, Attorney General's Commission on Pornography, at http://www.afa.net/pornography/attygenrpt.html (last visited Apr. 21, 2005) (on file with the Rutgers Computer and Technology Law Journal).
(40.) Child Protection and Obscenity Enforcement Act of 1988, Pub. L. No. 100-690, [section] 7513, 102 Stat. 4487 (1988).
(41.) See Custodian of Records Compliance Notice, at http://www.adult.com/ 2257/2257.html (last visited Jan. 15, 2004) (on file with the Rutgers Computer and Technology Law Journal).
(42.) 495 U.S. 103, 106-07, 111 (1990) (holding that an Ohio state statute that subjected the violator to criminal sanctions for merely possessing pictures that depicted a nude male adolescent in a sexually explicit position was constitutional).
(43.) Child Protection Restoration and Penalties Enhancement Act of 1990, Pub. L. 101-647, 104 Stat. 4818 (1990).
(44.) Id. at [section] 323.
(46.) See [section] 2, 92 Stat. at 7; [subsection] 2, 6, 98 Stat. at 204-05; 110 Stat. 3009-26 to -31.
(47.) Hearing before the Senate Comm. on the Judiciary, 104th Cong., 2d Sess. (1996).
(48.) 110 Stat. 3009-26 to -31.
(49.) See Hearing before the Senate Comm. on the Judiciary, supra note 47.
(52.) [section] 121, 110 Stat. at 3009-28 (emphasis added). This provision effectively banned digital pornography. See also 18 U.S.C. 2256(2) (defining "sexually explicit conduct" as "actual or simulated ... sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; ... bestiality; ... masturbation; ... sadistic or masochistic abuse; or ... lascivious exhibition of the genitals or pubic area of any person.").
(53.) [section] 121, 110 Stat. at 3009-28. This provision effectively banned morphed pornography.
(55.) Id. at 3009-29.
(56.) See infra Part IV.C. for a full discussion of The Free Speech Coalition decision.
(57.) 535 U.S. 234, 241, 258 (2002).
(58.) See Declan McCullagh, House Bans "Morphed" Child Pornography, Cnet News.com, at http://news.com.com/2100-1023_3-939407.html (last visited Nov. 15, 2003) (on file with the Rutgers Computer and Technology Law Journal).
(59.) Press Release, Senator Orrin G. Hatch, Hatch Statement on Supreme Court's Decision Regarding Virtual Child Pornography, at http://www.senate.gov/~hatch/index.cfm?FuseAction=PressReleases.Detail&Press Release_id=182317&Month=4&Year=2002 (last visited Nov. 15, 2003) (on file with the Rutgers Computer and Technology Law Journal).
(62.) 117 Stat. at 676.
(63.) Id. at 679. "Indistinguishable" is defined in the PROTECT Act as meaning "virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults."
(64.) Id. at 678.
(65.) See [section] 4, 98 Stat. at 204.
(66.) See [section] 7513, 102 Stat. at 4487 (requiring identification and age verification of all participants in a pornographic film).
(67.) See [section] 121, 110 Stat. at 3009-29.
(68.) Id. [section] 121, 110 Stat. at 3009-28.
(69.) [section] 502(a), 117 Stat. at 676.
(70.) The United States Supreme Court has sought to protect children not only from being the subjects of pornography, but also from viewing any pornography. See Ginsberg v. New York, 390 U.S. 629, 638 (1968) (holding that a New York State statute prohibiting the sale of magazines containing pictures of topless women to minor children was not unconstitutional; the First Amendment rights did not outweigh the state's compelling interest in protecting minor children from viewing this material).
(71.) Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942) (holding that the use of"fighting words" such as "god dammed racketeer" and "a dammed fascist" could be regulated by the state and not run afoul of the free speech protections of the First Amendment because the words would be "likely to cause an average addressee to fight.").
(72.) Id. at 572.
(73.) Roth v. United States, 354 U.S. 476, 489, 492-93 (1957) (holding that a mail order merchant of arguably pornographic books and magazines could be prosecuted under federal and state statutes without violating the provisions of the First Amendment or due process protections of the Constitution if the materials were obscene under contemporary community standards).
(74.) Id. at 492.
(75.) The American Heritage Dictionary of the English Language, Fourth Edition, defines prurient as "characterized by an inordinate interest in sex" or "arousing or appealing to an inordinate interest in sex." AMERICAN HERITAGE DICTIONARY 1413 (4th ed. 2002). The United States Supreme Court defined prurient as "material having a tendency to excite lustful thoughts," Roth, 354 U.S. at 487 n.20, but subsequently excluded any thoughts "that provoked only normal, healthy sexual desires." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1985). In subsequent cases, the Court has not refined its definition of "normal, healthy sexual desires."
(76.) Roth, 354 U.S. at 489.
(77.) See Miller v. California, 413 U.S. 15, 20 (1973).
(78.) See 378 U.S. 184, 196 (1964) (holding that a manager of a motion picture movie theater in Cleveland Heights, Ohio could not be prosecuted under a state obscenity statute because the film shown was not obscene).
(79.) Id. at 197.
(80.) See Miller, 413 U.S. at 18, 36-37 (holding that a California merchant who sent out a brochure depicting groups of men and women engaging in various forms of sexual activity could be prosecuted under a state statute when those materials were deemed to be obscene).
(81.) Id. at 24 (internal quotations and citations omitted).
(82.) See Stanley v. Georgia, 394 U.S. 557, 558, 568 (1969) (holding that criminalizing mere possession, in one's private home, of three reels of eight-millimeter film detailing adult sexual activity was unconstitutional).
(83.) Id. at 565.
(84.) See Osborne v. Ohio, 495 U.S. 103, 111, 125 (1990) (holding that prohibiting mere possession of photographs of a nude male adolescent posed in a sexually explicit position was constitutional).
(85.) Id. at 109.
(86.) 458 U.S. 747, 751-52, 774 (1982) (holding that a bookstore owner could be convicted under a state statute for knowingly promoting a live sexual performance by a child).
(87.) See Miller, 413 U.S. at 24.
(88.) See Ferber, 458 U.S. at 753.
(89.) Id. at 747.
(91.) Id. at 757 (emphasis added).
(92.) Id. at 758-59.
(93.) Id. at 758.
(94.) Ferber, 458 U.S. at 759.
(95.) See id. at 756-57.
(96.) Id. at 759.
(97.) Id. at 761.
(98.) See id. at 762.
(99.) The Free Speech Coalition is a California trade association of the adult-entertainment industry. The Coalition was formed to assert the First Amendment rights of the adult-entertainment industry. See Free Speech Coalition, Why You Should Join!, at http://www.freespeechcoalition.com/application.php (last visited Apr. 14, 2005) (on file with the Rutgers Computer and Technology Law Journal).
(100.) These petitioners challenged only the provisions of the 1996 Act regulating digital pornography, not morphed pornography. Free Speech Coalition. v. Reno, No. C97-0281VSC,. 1997 WL 487758, at *1 (N.D. Cal. Aug. 12, 1997), aff'd in part, rev'd in part, Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), aff'd sub nom. Ashcroft v. Free Speech Coalition 535 U.S. 234 (2002).
(101.) See Free Speech Coalition, 1997 WL 487758 at *1.
(103.) Senior District Judge Samuel Conti presiding, the case was decided in August 1997. See id.
(104.) Id. at *7.
(105.) Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), aff'd sub nom. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
(106.) Id. at 1094 (emphasis added).
(107.) Id. at 1097-99.
(108.) Free Speech Coalition v. Reno, 220 F.3d 1113 (9th Cir. 2000). The Ninth Circuit reasoned that given the rapidly evolving technology and fluctuating legal standards, there were other cases more "en-banc worthy." See id. at 1116.
(109.) See Ashcroft v. Free Speech Coalition, 198 F.3d 1083, (9th Cir. 1999), petition for cert. filed, 2000 WL 33979549 (U.S. Nov. 16, 2000) (No. 00-795).
(110.) Petition for writ of certiorari filed on November 16, 2000. See Ashcroft v. Free Speech Coalition (No. 00-795) Docket, at http://www.supremecourtus.gov/ docket/00-795.htm (last visited Mar. 31, 2005) (on file with the Rutgers Computer and Technology Law Journal).
(111.) Brief of Amicus Curiae National Center for Missing & Exploited Children, Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (No. 00-795).
(112.) Brief of Amici Curiae the State of New Jersey et al., Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (No. 00-795).
(113.) Brief for Amicus Curiae the American Civil Liberties Union et al., Ashcroft v. Free Speech Coalition, 2001 WL 740913 (Jun. 28, 2001).
(114.) See Free Speech Coalition, 535 U.S. 238-39 (Justices Kennedy, Stevens, Souter, Ginsburg, Breyer and Thomas were in the majority, with Justices O'Connor, Rehnquist and Scalia dissenting).
(115.) Id. at 242.
(117.) See 413 U.S. 15.
(118.) See 458 U.S. 747.
(119.) Free Speech Coalition, 535 U.S. at 240.
(120.) Id. at 241 (quoting the 1996 Act).
(121.) Id. The Court noted that there were several works of art with participants who appeared to be minors engaged in sexual activity, but that all would agree were of serious artistic merit, including Shakespeare's Romeo and Juliet (the Court quoted a line from Romeo and Juliet that said "[s]he hath not seen the change of fourteen years") and the 2000 Academy Award nominated film Traffic, which showed a sixteen year old girl who became addicted to drugs, engaged in what appeared to be intercourse. Id. at 247-48.
(122.) Id. at 241-42; see S. REP. NO. 104-358 (1996) (a legislative finding that digital and morphed pornography: 1) seduces real children; 2) whets the sexual appetites of pedophiles; 3) makes enforcement of other child pornography laws difficult; and 4) are used in the commerce of child pornography).
(123.) Free Speech Coalition, 535 U.S. at 249-51.
(124.) Id. at 250-51.
(125.) Id. at 250.
(126.) Id. at 251 (citing Ferber, 458 U.S. at 761).
(127.) Id. at 250-251.
(128.) The Court stated that items like cartoons, video games, and candy can "be used for immoral purposes." Id. at 251.
(129.) Free Speech Coalition, 535 U.S. at 251.
(130.) Id. at 252 (citing United States v. Playboy Entm't Group, Inc., 529 U.S. 803 (2000), which held that a regulation eliminating adult programming from cable systems was unconstitutional as less restrictive means of preventing access by minors were available).
(131.) Id. at 253.
(132.) Id. (quoting Stanley v. Georgia, 394 U.S. 557, 566 (1969)).
(133.) Id. at 254.
(135.) Free Speech Coalition, 535 U.S. at 254; see Ferber, 458 U.S. at 762-63. The Court reasoned in Ferber that if virtual images could be used then the child pornography problem would be eliminated, thus ending the risk to our children from these vultures.
(136.) Free Speech Coalition, 535 U.S. at 254.
(137.) Id. at 255 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)).
(138.) Free Speech Coalition, 535 U.S. at 255.
(139.) Id. at 256.
(140.) Id. at 273 (Rehnquist, C.J., Scalia, J., dissenting).
(141.) "Sexually explicit conduct" is a defined term in the Child Pornography Prevention Act. 18 U.S.C. [section] 2256(2)(b). See discussion.supra Part III.
(142.) 458 U.S. at 773-74; see discussion supra Part IV.B.
(143.) Free Speech Coalition, 535 U.S. at 268-69 (Rehnquist, C.J., Scalia, J., dissenting) (quoting and examining 18 U.S.C. [section] 2256(2)(b)).
(144.) Free Speech Coalition, 535 U.S. at 273 (Rehnquist, C.J., Scalia, J., dissenting).
(145.) See 117 Stat. 650.
(146.) See McMahan, supra note 19.
(147.) See [section] 502, 117 Stat. at 676.
(148.) Free Speech Coalition, 535 U.S. at 242.
(149.) See Id.
(150.) For this Note, no real, digital, or morphed child pornography was viewed. Not only does a lack of desire and moral repulsion to the images prevent one from viewing them, it is illegal to merely possess such images. See 18 U.S.C. [section] 2252(a) (criminalizing mere possession of child pornography). That is not to say that child pornography is not readily available on the Internet for free. A simple file-sharing search on http://www.bearshare.com with the term "child porn" showed that over 403 "collections" of child pornography were available at that moment for downloading (presumably these images were real child pornography). See BearShare, at http://www.bearshare.com/download (last visited Jan. 3, 2004) (on file with the Rutgers Computer and Technology Law Journal). Finally, while this Note postulates four methodologies to create and use morphed child pornography, the ingenuity of pornographers and entrepreneurs will no doubt show that the author's imagination in this regard is limited.
(151.) There are many sites on the Internet that display children in extraordinarily provocative poses, but that are not legally pornographic. See True Teen Babes, at http://www.trueteenbabes.com (last visited Jan. 15, 2004) (on file with the Rutgers Computer and Technology Law Journal). The existence of these web sites is beyond the scope of this Note, but it should be noted that there are an abundant supply of children who, with parental permission, would be willing to pose provocatively for online voyeurs.
(152.) Free Speech Coalition, 535 U.S. at 250.
(153.) See Ferber, 458 U.S. at 757-59; see also Osborne, 495 U.S. at 108-09.
(154.) See Ferber, 458 U.S. at 758.
(155.) Id. at 759.
(156.) Id. at 756-62.
(157.) Free Speech Coalition, 535 U.S. at 258.
(158.) "Indistinguishable" is defined in the PROTECT Act as "virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults." See [section] 101(3)(c), 117 Stat. 679.
(159.) See discussion supra Part III.
(160.) See discussion supra Part III.
(161.) For example, animated cartoons called anime are very common in Japanese popular culture. A significant amount of pornographic material is produced by anime, some of it child pornography. See What are Manga and Anime?, at http://www.mit.edu:8001/afs/athena.mit.edu/user/r/e/rei/WWW/Expl. html (last visited Jan. 15, 2004) (on file with the Rutgers Computer and Technology Law Journal).
(162.) Drawings, sculptures, and paintings are eliminated as prohibited items under the PROTECT Act. [section] 101(3)(c), 117 Stat. at 679.
(163.) See discussion of the film Traffic, supra note 121.
(164.) See supra Part IV.C; Free Speech Coalition, 535 U.S. at 256.
(165.) Id. at 250-51, 256.
(166.) See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (holding that a municipal ordinance that prevents cross-burning was an impermissible restriction of the First Amendment).
(167.) See Cohen v. California, 403 U.S. 15, 15-16, 26 (1971) (holding that a state regulation that did not permit the plaintiff to wear a shirt with the words "F--K the draft" in a state building was an impermissible restriction of the First Amendment).
(168.) See Collin v. Smith, 578 F.2d 1197, 1199, 1210 (7th Cir. 1978) (holding that denying a parade permit to uniformed American Nazis in a neighborhood populated by holocaust survivors was unconstitutional).
(169.) See Miller, 413 U.S. at 32-33.
(170.) See Ferber, 458 U.S. at 756.
(171.) Free Speech Coalition, 535 U.S. at 253.
Richard Bernstein, Candidate for J.D., May 2005, Rutgers School of Law--Newark.
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|Date:||Jan 1, 2005|
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