Free Speech trumps `virtual' child porn; a high-court ruling striking down a federal law that criminalized `virtual' child pornography is a major setback for the Justice Department antiporn efforts

0 Comments | Insight on the News, May 27, 2002 | by Kelly Patricia O'Meara

In recent weeks the airwaves have been filled with news stories about the homosexual/pedophile scandal plaguing the Catholic Church. The nation -- and, for that matter, the world -- has been focused on and appalled by the revelations of the sexual abuse of children by priests. Then, in the midst of the scandals, the U.S. Supreme Court struck down a law that banned "virtual" child pornography. An outraged public began asking if the high court had lost its moral compass.

Upon review of the decision in Ashcroft v. Free Speech Coalition, say constitutional scholars contacted by INSIGHT, it seems clear that what the justices found offensive was the attendant restricting of constitutional freedoms of speech and the press. Liberals and libertarians agreed; conservatives disagreed.

The high court's decision focused on two areas of the Child Pornography Prevention Act of 1996 (CPPA) -- not only pornographic images made using actual children, but also "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." In other words, under CPPA, both real and virtual pornographic images of children were prohibited.

The law was challenged by the Free Speech Coalition, a trade association of businesses involved in producing, publishing and distributing adult-oriented materials, plus a host of others including artists, photographers and even mainstream publishers. The group argued that certain provisions of the law were overbroad and vague and that the banned product was protected by the First Amendment. Five of the nine justices agreed; in the majority were Justices Anthony Kennedy, John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Justices Clarence Thomas and Sandra Day O'Connor concurred with Chief Justice William Rehnquist and Justice Antonin Scalia in the dissent.

In a nutshell, the majority rejected the arguments of the government in support of the law, writing that, "The contention that the CPPA is necessary because pedophiles may use virtual child pornography to seduce children runs afoul of the principle that speech with the rights of adults to hear may not be silenced in an attempt to shield children from it."

The opinion further states: "The argument that virtual child pornography whets pedophiles' appetites and encourages them to engage in illegal conduct is unavailing because the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it ... absent some showing of a direct connection between the speech and imminent illegal conduct."

It continues, "Finally, the First Amendment is turned upside down by the [government's] argument that, because it is difficult to distinguish between images made using real children and those produced by computer imaging, both kinds of images must be prohibited." Nonsense, said the majority, which opined authentic child pornography still is criminal and still can be prosecuted, while "virtual" or computer-generated images, are protected by the First Amendment. At least for now.

An interesting twist to the debate is that the Internet, the forum in which most real and virtual images of children engaging in erotic acts now are being displayed, is not a uniquely American domain. Whatever direction the high court may have gone would have had little if any effect on anyone operating legally outside the United States and, given the immensity of child-pornography distribution, little effect at home.

Anyone who can access the World Wide Web has the technical capability to post and/or download child pornography, both real and virtual. In fact, say high-tech marketeers, nearly 750 million people now are plugged into the Web, with nearly 58 percent speaking English, nearly half of those residing in the United States, and a 60-40 split among men and women. Currently 60 percent of the Websites on the Internet are pornographic, according to the U.S. Customs Service, and 100,000 Websites offer child pornography. If there's any doubt about the appeal of this stuff consider that the No. 1 search topic on the Internet, according to those operating the major search engines, is "sex."

The industry statistics on "techsex" and "cybersex" confirm that Internet sex is a billion-dollar business that is growing. So as a practical matter the question isn't whether child pornography should be tolerated or even whether it is offensive, say dot-com specialists, but how a free and open society can prevent it on the World Wide Web, both as a matter of practical enforcement and without putting one foot on the slippery slope of censorship.

Recent public outcries of indignation and anger against Catholic clergy for sexual assaults and abuse of children have made it clear where most Americans stand on the issue of sexual abuse of children, and passage of the CPPA reflected a similar public outrage about child pornography. But as the high court suggested in its opinion, there remains the question of whether one nation can or should legislate such matters for the rest of the world.