High Court Rejects Rule On 'Virtual' Child Porn

by David G. Savage, Los Angeles Times

WASHINGTON - In a strong defense of the right to free speech, the Supreme Court yesterday struck down part of the federal child-pornography law that makes it a crime to sell or own images of computer-created children engaged in sex.
The justices also said the First Amendment shields films and photographs that show adult actors who "appear to be minors" involved in sex.

In both instances, the court said Congress had gone too far in a laudable effort to stamp out the scourge of child pornography.

"The sexual abuse of a child is a most serious crime, and an act repugnant to the moral instincts of a decent people," said Justice Anthony Kennedy.

But no real children are portrayed in the photographs and films at issue in yesterday's decision, he said. The government cannot make it a crime to show sexual images that only "appear to be" children without threatening legitimate film makers, photographers and advertisers, he said.

Award-winning Hollywood films such as "Traffic" or "American Beauty" could be subject to prosecution, Kennedy said, if the law were applied literally.

Yesterday's ruling creates an immunity for a new generation of "virtual" pornographers who rely entirely on computer images. The image, film or photograph cannot be prosecuted as child pornography as long as no real children are portrayed or their images morphed into a sex scene, such as the grafting of a child's school picture onto a naked body.

There is one exception. A truly obscene work can be prosecuted as a crime, the court noted, since obscenity is outside the protections of the First Amendment.

But it is hard to win an obscenity case, and prosecutions are rare. To win such a case, the government must convince a jury that a work is sexually graphic, "patently offensive" and lacks redeeming value.

Attorney General John Ashcroft condemned the court's ruling, saying it would make the prosecution of child pornography "immeasurably more difficult."

Where possible, the attorney general said, prosecutors will "pursue general obscenity charges" against virtual child pornographers.

Ashcroft, then a senator from Missouri, was among the lawmakers who pressed for the passage of the Child Pornography Prevention Act in 1996. It broadened the definition of child pornography to include any "visual depiction that is, or appears to be, a minor engaging in sexually explicit conduct." Moreover, visual depiction was redefined to include a "computer-generated image or picture."

The Free Speech Coalition, a California trade association for the adult-entertainment industry, went to federal court in San Francisco to challenge the law on the grounds that no real children were being exploited. Photographers, filmmakers and bookstore owners joined the challenge and claimed they feared possible prosecution over depictions that might be seen as involving minors.

A federal judge rejected their claim as far-fetched, but the 9th U.S. Circuit Court of Appeals agreed with it on a 2-1 vote. The law cannot make it a crime to show "images of fictitious children engaged in imaginary" sex acts, the panel said.

The Supreme Court took up the government's appeal in the case and affirmed the ruling of the 9th Circuit.

Kennedy said that at least since the days of William Shakespeare and his "Romeo and Juliet," the romances of the young have been a recurring theme in literature, drama and movies.

"The visual depiction of an idea - that of teenagers engaging in sexual activity - is a fact of modern society," he wrote. If prosecutors were free to bring criminal charges in all such cases, it would certainly chill filmmakers and photographers, he said.

Kennedy also rejected the government's argument that virtual child pornography can be banned because it is used by pedophiles to lure children into sexual activity. "There are many things innocent in themselves, such as cartoons, video games and candy, that might be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused," he wrote.

He stressed, however, the government remains free to prosecute those who make, sell or own sexually explicit images of real children that are morphed into sex scenes.

But federal prosecutors fear they will have a hard time proving that children portrayed on an Internet sex site, for example, are real children and not computer-created images.

Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer joined Kennedy's opinion. Justice Clarence Thomas concurred in the result and said the government can still bring successful prosecutions when it can show real children were involved.

Justice Sandra Day O'Connor agreed the law went too far by covering young-looking actors in films. But she said she would have upheld the ban on computer-generated child pornography.

Chief Justice William Rehnquist and Justice Antonin Scalia dissented, saying the law should been read narrowly and upheld.

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