The PROTECT Act and the First Amendment

Wednesday, August 27, 2003

Groups working to stop child abduction and abuse hailed the PROTECT Act when President Bush signed it into law April 30, 2003. Aimed at protecting children from kidnappers and pedophiles, the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act created a national network to broadcast child abductions. It also targeted child pornographers, and toughened penalties for sexual abuse and kidnapping. Despite its worthy purposes, however, the law also included significant First Amendment implications that received little notice in press coverage.

These requirements affecting First Amendment rights were enacted in response to Ashcroft v. Free Speech Coalition, the 2002 Supreme Court decision that struck down key portions of the Child Pornography Prevention Act of 1996. After that ruling, several legislators scrambled to draft bills addressing child pornography. Sen. Orrin Hatch, R-Utah, was the chief sponsor of S. 151, the bill that eventually became the PROTECT Act.

The bill (sometimes called the “Amber Alert bill”) also created a national rapid-response network to broadcast Amber Alerts — bulletins informing communities of kidnappings. The issue was of particular concern to Hatch because Elizabeth Smart, the 15-year-old who gained national attention when she was kidnapped last year, is from Utah. Nine other senators co-sponsored S. 151: Robert F. Bennett, R-Utah; John Edwards, D-N.C.; Patrick Leahy, D-Vt.; Mark Lunsford Pryor, D-Ark.; Richard Shelby, R-Ala.; Michael DeWine, R-Ohio; Charles E. Grassley, R-Iowa; Blanche Lincoln, D-Ark., and Charles E. Schumer, D-N.Y.

The Free Speech Coalition ruling “greatly weakened the laws pertaining to child pornography and left some gaping holes in our nation’s ability to effectively prosecute child pornography offenses,” Hatch said in a floor statement in January 2003. “We must now act quickly to repair our child pornography laws to provide for effective law enforcement in a manner that accords with the Court’s ruling.”

In a Jan. 29, 2003, letter to senators, the American Civil Liberties Union warned that certain provisions in S.151 would prohibit or chill speech that the First Amendment protects. Nonetheless, several of those provisions became law, including ones that punish the possession and distribution of virtual child pornography; the distribution and advertisement of material that conveys the impression that it contains a depiction of a child engaging in sexually explicit conduct, regardless of whether it does; and the use of misleading Web-site names with the intent to trick people into viewing material that is obscene or harmful to minors.

The PROTECT Act passed 98-0 in the Senate and 400-25 in the House. Those margins aside, the First Amendment problems in the new law eventually may be matters for the courts to decide.

Prohibition on virtual child pornography
Advocates of the PROTECT Act’s new restrictions contend that some pedophiles show pornographic pictures to children in order to desensitize them and encourage them to engage in sexually explicit conduct. Targeting this practice, a section of Title V of the PROTECT Act bans virtual child pornography, which it describes as a “digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.” Such a ban raises constitutional concerns.

In Free Speech Coalition, the Court reaffirmed the illegality of pornography in which an actual child appears, but said virtual pornography in which no real children were used could be legal. It struck down the CPPA’s prohibition of material that “appears to be of a minor engaging in sexually explicit conduct,” as well as a ban on sexually explicit material distributed in such a way that it “conveys the impression” that it depicts a minor engaging in sexually explicit conduct. In other words, the Free Speech Coalition Court gave constitutional legitimacy to non-obscene creations of computer-generated pornography in which no real children are used. It distinguished real-child pornography from virtual child pornography by noting that children are harmed in the former, but not in the latter. The Court did not address the ban on morphing innocent pictures of real children into pictures in which they appear to be engaged in sexual activity; the defendants had not challenged that provision.

In New York v. Ferber (1982), the Court upheld a prohibition on the production, sale and distribution of child pornography because it was “intrinsically related” to the sexual abuse of children. Production not only harmed the children involved by serving as a record of their abuse, the Court said, but the sale or distribution of such pornography also economically motivated further production.

In contrast, “virtual child pornography is not ‘intrinsically related’ to the sexual abuse of children,” the Court noted in Free Speech Coalition. The Court was not convinced by claims that the images can cause the sexual abuse of children. “The causal link is contingent and indirect,” Justice Anthony Kennedy wrote for the majority. “The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts.” The ban on virtual child pornography “prohibits speech that records no crime and creates no victims by its production.”

Furthermore, the Court said that even if some pedophiles use virtual child pornography to encourage children to participate in the acts, virtual child depictions could not be banned because many innocent things, such as candy and video games, also could be used for immoral purposes but would not be banned. Such a prohibition on virtual child depictions would “[run] afoul of the principle that speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it.”

Proponents of the CPPA say that the rise of virtual child pornography has created a problem for law enforcement agents, who often cannot distinguish between it and actual child pornography. “Technology has advanced so far that even experts often cannot say with absolute certainty that an image is real or a ‘virtual’ computer creation,” Sen. Hatch said in introducing S. 151 in January 2003. According to the findings section of the act, since the Court struck down the CPPA, defendants in such cases “have almost universally raised the contention” that the materials police officers confiscated from them may not be real-child pornography, but rather virtual images.

Although the “solution” of banning both actual and virtual child pornography was not acceptable to the Supreme Court in the Free Speech Coalition case, the PROTECT Act nonetheless calls for the same kind of ban. The findings section of the PROTECT Act notes that the Supreme Court decided Ferber more than 20 years ago, when the technology did not exist to create virtual images that are indistinguishable from real ones. The act’s drafters decided to change the law to address this new technological capability. However, the First Amendment overbreadth doctrine prevents the government from banning or chilling a substantial amount of protected speech in an attempt to ban unprotected speech.

As the Court said in Free Speech Coalition, “The Government may not suppress lawful speech as a means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter.” The PROTECT Act bans images that are merely indistinguishable from a minor engaging in sexually explicit conduct. Under the act, “indistinguishable” means “an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct.” Such a ban could prohibit non-obscene computer-generated depictions that did not involve the use of any individuals and pornography created by using youthful-looking actors. Both kinds of expression are protected speech.

The PROTECT Act’s proponents argue that it provides individuals wrongly accused of producing, possessing or selling child pornography with the opportunity to clear their names by demonstrating that actual minors were not used in the production. Notably, this affirmative defense shifts the burden from the accuser to the accused — dismissing the principle of “innocent until proven guilty.” It also raises a feasibility problem. If law enforcement agents have a hard time finding those depicted in the images to prove they are under-age, then an individual accused only of possession of such images also may be unable to find the actors to prove they are of legal age. For those who claim to have created the pictures solely through computer imaging, the affirmative defense provides nearly no help — it would force them to prove a negative, that no real child was used in the creation of the pictures.

Prohibition on falsely advertising child pornography
Another section of Title V of the PROTECT Act prohibits knowingly advertising, promoting, presenting, distributing or soliciting “through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains (i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a visual depiction of an actual minor engaging in sexually explicit conduct.” Here again, the Supreme Court did not look favorably on a similar provision in its Free Speech Coalition ruling.

In that case, the Court struck down as constitutionally overbroad a section of the CPPA that prohibited sexually explicit materials that “convey the impression” that they depict minors. The Court said the provision would ban films that did not contain child pornography but were advertised as such, and punish those who possessed the films knowing they had been mislabeled. The PROTECT Act may fail a constitutional challenge for similar reasons. The ACLU noted that problems arising out of false advertising and fraud could be addressed by the Federal Trade Commission.

Prohibition of misleading domain names
Title V, Subtitle B of the PROTECT Act makes it illegal to use misleading domain names on the Internet with the intent to trick people into viewing obscenity. Free-speech advocates claim the “Truth in Domain Names” section is not constitutionally precise. “The term ‘misleading’ is inherently vague, which tends to chill protected speech on the Internet,” the ACLU wrote to Sen. Hatch and Rep. James Sensenbrenner, R-Wis., on April 8, 2003. The act calls for fines or imprisonment for up to two years for those who use a misleading domain name intending to trick a person into viewing obscene material, and fines and up to four years’ imprisonment for those who use the domain names to deceive a minor into viewing material that is harmful to minors.

Rep. Mike Pence, R-Ind., was among House members who crafted anti-pornography bills after the Supreme Court’s ruling in Free Speech Coalition. His bill targeted pedophiles who trick children into viewing sexually explicit material by posting it on sites that have domain names that attract children, such as ones named after movies and toys. Language similar to that which he suggested made it into the PROTECT Act. He proposed that domain names that included the word “sex” to indicate the sexual content of the site would not be deemed misleading; the act expands the rule so that domain names that include the word “porn” also are not deemed misleading.

Though these provisions narrow the field of sites that would be deemed misleading, the provision still could be considered vague. For example, would domain names that don’t contain these words but that have other words that suggest their pornographic content be considered misleading? “If the law is not precise, it may violate the First Amendment,” the founder of Gigalaw.com, Doug Isenberg, wrote in a May 15, 2003, article on CNET News.com. In addition, domain owners are forced to incorporate certain words into their sites’ domain names, which is a form of compelled speech, according to the ACLU. It also notes that such a provision makes it easier for individuals, including children, to find sexually explicit material on the Internet.

Prohibition on sexual expression that is not obscene
The PROTECT Act also may raise constitutional issues because it prohibits sexual expression that is not necessarily obscene. The Supreme Court reaffirmed in Free Speech Coalition that the criteria established in Miller v. California (1973) still apply. Ordinarily the government can ban sexual expression only if it is obscene, but it can ban actual sexual depictions of children even if they’re not obscene because the government has an interest in protecting children. Under the Miller test, material is obscene if:

 

  • The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.
  • The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
  • The work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Although the government clearly can ban all real-child pornography, it can only ban obscene virtual child pornography. The PROTECT Act bans virtual child pornography without considering whether it appeals to the prurient interest or is patently offensive, which could make it susceptible to a First Amendment challenge. The CPPA suffered from a similar problem, as the Court made clear in Free Speech Coalition. For example, under the CPPA and the PROTECT Act, pictures in psychology books and movies about sexual abuse could be prohibited, as could such popular movies as the 1996 “Romeo + Juliet” and the 1999 “American Beauty.”

Sexual abuse and exploitation of children is a serious matter. It stirs emotions and impassions people to take action to stop such terrible crimes. Legislators understandably struggle to create tough laws. In their haste, they may overlook and infringe on free-speech rights. The Supreme Court’s ruling in Free Speech Coalition, however, serves as a warning that First Amendment rights must be protected, even when legislators are trying to solve a pressing problem.

Ambika J. Biggs, a 2003 intern in the office of the First Amendment ombudsman in Arlington, Va., is a law student at the University of Virginia.

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