Child-porn law faces first federal challenge

Wednesday, March 11, 1998

SAN FRANCISCO (AP)—Federal appellate judges have asked a Clinton administration lawyer if Congress went too far in a child pornography law that bans pictures of adults who look like children having sex.


The case that went on March 10 before the 9th U.S. Circuit Court of Appeals is the first federal court test of the 1996 law, which makes it a crime to produce any visual depiction that “is, or appears to be, of a minor engaged in sexually explicit conduct.” The law applies to computer-generated images as well as films and photographs.


The U.S. Supreme Court in 1982 upheld a law banning non-obscene pictures of sexually explicit conduct by minors, saying the law protected the children in the pictures from sexual exploitation. Justice Department lawyer Jacob Lewis argued Tuesday that children would also be protected by a law banning pictures that were intended to look like minors having sex.


“Congress understood that pedophiles use images of children having sex to seduce other children,” Lewis told a three-judge appellate panel. That is equally true, he said, whether the person pictured is actually a minor or was only meant to look like one.


But two of the judges said the ban appeared to be based on the content of a picture rather than its incidental effect on children. Content-based regulation of expression is usually difficult to justify under the Constitution’s First Amendment.


“If no children are involved, how is it not content-related?” asked U.S. District Judge Donald Molloy of Montana, temporarily assigned to the appeals court. He referred particularly to the ban on computer-generated sexual pictures of minors.


Judge Sidney Thomas said the law could be used to prosecute makers of a film based on Lolita even if, as in past versions, an adult woman portrays the minor in a sexual relationship with an older man.


Lewis said the filmmaker could avoid prosecution by showing a disclaimer that said no minors were used in the production. Thomas was skeptical, noting that under the law, the defendant must also show that the picture was not advertised or promoted to create an appearance of a minor engaging in sexual activity.


“It’s impossible to describe Lolita without at least giving the impression that it’s about an adult having sex with a minor,” Thomas said.


The law was challenged by a group of more than 600 producers and distributors of sexually explicit films and other materials, calling themselves the Free Speech Coalition. Their suit was rejected last year by U.S. District Judge Samuel Conti of San Francisco, who ruled that the law protected children without violating free speech.


H. Louis Sirkin, a lawyer for the organization, told the appeals court that the law went beyond prevous child-protection measures and prohibited material based on the presumed effect of its content, a rationale that he said could cover a wide range of legal expression. He also said the ban on any sexually explicit picture that “appears to be” of a minor was too vague.


“In a youth-oriented nation, how do you make an objective determination that they appear to be a minor?” he asked.


Judge Warren Ferguson appeared unpersuaded. “If a speech matter is inherently evil, can Congress legislate on it?” he asked.


The case is Free Speech Coalition vs. Reno, 97-16536.