Five years ago Congress expanded the federal child-porn law to cover the virtual variety. The Child Pornography Prevention Act of 1996 bans any image that “appears to be” sexually explicit conduct by an actual child. Congress found not only that pedophiles use such images to whet their own appetites and lure children into sexual activities, but also that virtual child porn can “desensitize the viewer to the pathology of sexual abuse or exploitation of children.”
Rejecting these justifications as constitutionally insufficient, a panel of the U.S. Court of Appeals for the Ninth Circuit, sitting in San Francisco, voted 2-1 in December 1999 to strike down the 1996 statute. The decision came in a lawsuit brought by the Free Speech Coalition, an adult-entertainment trade association, along with a painter of nudes, the publisher of a book on nudism and a photographer. Only “the protection of the actual children used in the production of child pornography” can justify a ban on child porn, the Ninth Circuit panel held. In seeking Supreme Court review, the Justice Department countered that the ban on virtual child porn was necessary to protect “children who may be abused as a result of the dissemination of visual depictions of child pornography.” The Supreme Court agreed in January to hear the case.
Some constitutional-law experts and computer artists specializing in erotica have joined the plaintiffs, who say they “strongly oppose child pornography,” in assailing the 1996 law. “Its intent is contrary to every principle of the First Amendment,” says Prof. Eric M. Freedman of Hofstra University Law School. Adds Joan Bertin, executive director of the National Coalition Against Censorship: “Congress is saying that it is criminal even to think repulsive thoughts, and that’s a huge problem.”
To bolster the 1996 law against such attacks, the Justice Department and other supporters argue that the unquestionably valid ban on actual child porn will become unenforceable unless the court also upholds the ban on virtual child porn. As computer imaging technology advances, they say, prosecutors will be unable to prove that the children depicted in sexually explicit images are real even when they are.
But the big question is whether the justices will agree, in this unusually repugnant context, with Freedman’s view that government cannot “ban something because it may incite people to do bad things.” With Lynette Clemetson
