Congress responds to Supreme Court's child porn decision

Daily Record (Rochester, NY), Jun 28, 2002 by Nora Jones

In response to the April 16, 2002 U.S. Supreme Court opinion in Ashcroft v. Free Speech Coalition, which struck down the Child Pornography Prevention Act of 1996 (CPPA) as overly broad, the U.S. House of Representatives voted this week, 413 to 8, to pass a new version of the Act. In the 1996 version of CPPA, federal prohibition on child pornography was expanded to encompass new technologies.

The definition of child pornography was codified at 18 U.S.C. 2256 to include: "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct where (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct; (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or (D) 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 problem with this statutory definition, explained Justice Anthony Kennedy in the April 2002 decision, was that it extended the federal prohibition to images that appear to depict minors but were produced without using any real children. This, he said, was substantially overbroad and in violation of the First Amendment. Because the Supreme Court's ruling essentially tied the hands of prosecutors -- how do you prove that a photograph is not computer generated? -- Congress moved forward with a revised bill (HR 4623) to shift the burden of proof to the defendant, to prove that the questioned image was produced without involvement of a minor. Supporters of the bill have relied on the concurring opinion of Justice Clarence Thomas in Ashcroft v. FSC, where he wrote, "technology may evolve to the point where it becomes impossible to enforce actual child pornography laws because the government cannot prove that certain pornographic images are of real children. In the event this occurs, the government should not be foreclosed from enacting a regulation of virtual child pornography that contains an appropriate affirmative defense or some other narrowly drawn restriction. *** The court does leave open the possibility that a more complete affirmative defense could save a statute's constitutionality...." And so, the Child Obscenity and Pornography Prevention Act of 2002 is ready for Senate action. Attorney General Ashcroft stated, "I urge the Senate to bring this important legislation to the floor as soon as possible."