Federal courts split over constitutionality of computer child porn law

Friday, September 11, 1998


Courts examining the constitutionality of a federal law that criminalizes computer-generated images of minors, or someone who appears to be a minor, engaged in sexually explicit conduct have reached different conclusions. This split in the federal courts has caused some legal experts to predict that the issue may well reach the U.S. Supreme Court.


The Child Pornography Prevention Act of 1996, or CPPA, was passed to supplement existing federal law regulating child pornography. The U.S. Supreme Court found in the 1982 decision New York v. Ferber that child pornography deserved no First Amendment protection.


The CPPA defines child pornography as “any visual depiction, including any photography, film, video, picture, or computer or computer-generated image or picture … of sexually explicit conduct, where … such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct.”


The law also defines child pornography to include situations in which “such visual depiction is advertised, promoted, presented, described or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.”


The government asserts the law is necessary to combat the exploitation of children caused by child pornography, whether traditional or computer-generated. However, some free-speech advocates counter that the law — especially the phrases “appears to be a minor” and “conveys the impression” of child pornography — radically changes existing law.


Federal courts in California and Maine have both been presented with legal challenges to the statute that expands the definition of child pornography — and reached opposite conclusions.


In the California case, the law was challenged on First Amendment grounds by the Free Speech Coalition, a trade association that represents more than 600 businesses and individuals involved in the production or distribution of adult-oriented materials.


The group argued that the law prohibits constitutionally protected speech.


Even though the Free Speech Coalition does not “tolerate” the distribution of child pornography, the group says it filed its lawsuit because many of its members produce films, photographs and other materials that are sexually explicit. The law, the group claimed, has caused many of its members to engage in “self-censorship” for fear of prosecution under the law.


Federal District Court Judge Samuel Conti ruled in August 1997 in The Free Speech Coalition v. Reno that the law clearly advances the government's compelling interests in protecting minors from sexual exploitation.


Conti wrote: “In passing the legislation, Congress recognized that the dangers of child pornography are not limited to its effect on the children actually used in the pornography” and that “these computer-generated pictures are often indistinguishable from photographic images of actual children.”


The Free Speech Coalition argued the law was a content-based restriction on speech that was overbroad. For example, the group said the law could criminalize artistically valuable paintings of children, adaptations of “Romeo and Juliet” or pictures of a child's anatomy used by psychiatrists or other members of the medical profession in treating adolescent disorders.


However, Conti dismissed the arguments, finding that the CPPA was not overbroad because it was not designed to prohibit constitutionally protected material but targeted only those works that are child pornography or are packaged as child pornography. He found the law did not suppress free-speech, but combated the harmful secondary effects of child pornography, such as exploitation of children.


The Free Speech Coalition has appealed the decision to the 9th U.S. Circuit Court of Appeals. The 9th Circuit heard oral arguments last March but has yet to issue a ruling.


In the Maine case, an electronic technician named David Hilton was prosecuted under the CPPA for allegedly possessing child pornography sent to him via the Internet.


Hilton's lawyer filed a motion to dismiss the charges, arguing that the law was unconstitutional.


Federal District Court Judge Gene Carter dismissed U.S. v. Hilton last March, finding the law unconstitutional. Carter agreed with the California court that the CPPA is a content-neutral law designed to prevent the harmful secondary effects associated with child pornography.


However, Carter reasoned that the law's definition of child pornography to include visual depictions of people who simply appear to be minors “is too subjective to enable ordinary persons to know with certainty what conduct is prohibited by the statute.” Carter noted that “it will be equally difficult for viewers to classify computer-generated images according to this subjective standard.” For these reasons the judge concluded that the CPPA was unconstitutionally vague and dismissed the charges.


The government has appealed the decision to the 1st U.S. Circuit Court of Appeals, which also has not yet issued a ruling.


Robert Flores, senior counsel for the National Law Center for Children and Families, said that the issue is of paramount importance because if the law is struck down it will “significantly damage the government's efforts to fight the evils of child pornography.”


While working for the U.S. Justice Department, Flores in 1993 prosecuted the first federal case involving the importation of child pornography via computer.


In that case, U.S. v. Kimbrough, the defense argued that the children in the pictures were not actual children, but computer-generated images. “Fortunately, in 1993 most of the pictures on the Internet were on bulletin boards and we were able to find a number of the pictures from the original magazines to prove it was child pornography,” he said.


The case, however, alerted the government to computer-generated child pornography and that it needed to expand federal law on child pornography, Flores said.


“You have to understand that these computer-generated pictures are still intrinsically related to the exploitation of children,” he said. “These computer-generated pictures still have the same evil effects of the regular child pornography.”


Flores also said he sees no constitutional problem with the fact that the law could punish someone for possessing a computer-generated image of someone who appears to be a minor, but is not actually a minor. “If the material is packaged as child pornography and marketed as child pornography, what's the difference?” he asked.


However, Louis Sirkin, who represents the Free Speech Coalition, said that Flores' position is “constitutionally unsound.”


“The whole purpose of making child pornography an unprotected category of expression, which the U.S. Supreme Court did in the 1982 case of New York v. Ferber, is to protect the children that are in the depiction and that have actually been sexually harmed,” he said.


Sirkin said the government rationalizes the law by arguing that pedophiles may use the computer-generated images and related material to “break down the inhibitions of a child.”


“What the government has done is to ban protected speech because it may have a bad effect on pedophiles,” Sirkin said. “This runs counter to the First Amendment and to the court's obscenity law which says that we don't value material based on its effect on the most sensitive of persons — in this case pedophiles.


“Why should you or I be reduced to the level of a pedophile?” he asked.


Sirkin said that under the CPPA an individual could be charged with child pornography if he possessed a sexually explicit visual depiction of someone over 18 years of age who appeared to be a minor.


In his appeal brief to the 9th Circuit, Sirkin wrote that the CPPA “radically transformed the definition of 'child pornography' by including in that definition sexually-explicit depictions of youthful-looking persons who are over the age of eighteen.” He concluded: “Pornography depicting actual minors does real harm to real children. However, in attempting to address the true evils of child pornography, Congress must also be mindful of the First Amendment. Congress cannot simply attack protected forms of expression in order to punish illegal forms of conduct.”


Both Sirkin and Flores acknowledged that the issue could well reach the U.S. Supreme Court, especially if the 1st and 9th Circuits reach opposite conclusions.


“These cases are at odds with each other,” Flores said. “Whoever loses in the Free Speech Coalition case will definitely appeal to the U.S. Supreme Court. I am fairly confident the law will stand up on appeal.”