Supreme Court to Consider Digital Images

January 26, 2001

CYBER LAW JOURNAL

By CARL S. KAPLAN

At the heart of a hotly debated federal child pornography law that

the United States Supreme Court accepted for review this week is a

simple question with implications for the digital world: May the

government criminalize computer-generated images of fictitious

people engaged in imaginary acts?

The question is an important one, some legal thinkers say,

especially because it comes at the dawn of an era of

computer-created virtual environments. If Congress can lawfully

stamp out certain computerized pictures of "virtual" children

engaging in explicit sex, on the theory that those synthetic

pictures are dangerous to society, then perhaps down the road the

government will seek to ban other digital illusions that it

believes may lead to acts of real violence -- such as virtual

murder or virtual rape in a multi-user computer game.

That Twilight Zone question and others more down to earth will be

hashed out at oral argument in October, when the Supreme Court

hears an appeal by the Justice Department from a 1999 ruling by the

United States Court of Appeals for the Ninth Circuit, which struck

down two parts of the most recent amendments to the child

pornography law.

In the meantime, the prospect of Supreme Court review has enlivened

a sharp legal debate over the government's ability to restrict

"virtual" images.

Concerned about the effect of advances in computer technology on

the sex industry, Congress in 1996 crafted the Child Pornography

Protection Act, which greatly expanded the scope of outlawed child

pornography. Under the new definitions, for example, sexually

explicit material depicting a person who "appears to be" a minor is

deemed child pornography. The same is true for material that

"conveys the impression" that a minor is engaged in sexual acts.

The new definitions are broad ones. Significantly, under them

synthetic child pornography that looks real -- such as a

computer-generated sexual image of a fictional cyber-child -- is

illegal. Prior to the 1996 amendment, the federal ban against the

production, distribution and possession of child pornography

applied only to visual depictions of real children engaged in

sexually explicit activities.

Three federal appeals courts have upheld the new child porn law.

But in a challenge brought by the Free Speech Coalition, a trade

group of businesses engaged in the production and distribution of

sexual materials, the Ninth Circuit Court of Appeals, sitting in

San Francisco, concluded in December 1999 that the act was

unconstitutional because the phrases "appears to be" and "conveys

the impression" were vague and overbroad.

Writing for a two-to-one majority, Judge Donald W. Molloy said that

Congress and the courts have traditionally defined the problem of

child pornography in terms of the harm inflicted on the "real

children" who served as models for the pictures. Relying on a

landmark child pornography decided by the Supreme Court in 1982,

New York v. Ferber, Judge Molloy reasoned that protecting the

actual children used in the creation of the repugnant sexual

material is a "compelling state interest," referring to the high

standard that a law must meet to survive strict First Amendment

scrutiny. But Congress has no compelling interest in regulating

sexually explicit materials that do not contain visual images of

actual children, he said.

In reaching his conclusions, Judge Molloy rejected the government's

main justification for a ban on virtual child porn: that it whets

the appetite of pedophiles and causes them to victimize real

children. That argument is hazardous, the court said, because it

"enables the criminalization of foul figments of creative

technology that do not involve any human victim in their creation

or presentation."

Critics of the appellate court's ruling insist that the government

may ban computer-generated fictional images for any number of

legitimate reasons.

"The Ninth Circuit restricted the state's justifications for

banning child pornography to the protection of those children whose

pictures were taken," said Adam J. Wasserman, a New York lawyer

whose law review article supporting the constitutionality of the

child porn law was cited by the dissenting justice in the appeals

case. "This completely ignores the Supreme Court's decision in

Osborne v. Ohio, which justified the ban on possessing child

pornography partly because of the role that it plays in the cycle

of child abuse."

In the Osborne case, said Wasserman, the court recognized that

pedophiles routinely use child pornography as a tool to seduce

innocent victims. "Virtual child pornography can be used just as

effectively for this insidious purpose," he said.

Wasserman later added: "If a 30-year-old can't tell the difference

between 'real' and 'virtual' child porn, how can we expect a

six-year-old to do so?"

Robert Flores, a former federal prosecutor who is currently vice

president and senior counsel of the National Law Center for

Children and Families, said that he believed the expanded child

pornography law is a prosecutorial necessity -- a fact that Judge

Molloy did not fully take into account.

According to Flores, under the old law a prosecutor had the burden

of proving to a jury in a child pornography prosecution that the

pictures at issue depicted real children under 18 years old.

"Normally, that was not a problem," Flores said. But today,

publically-available software allows pedophiles to create a

synthetic child by scanning in somebody's nose, another person's

ears, and so on, then tweaking the resulting image.

The upshot, Flores said, is that now few people can tell the

difference between a "real" picture of an actual child and a

computer image of a cyber-child. That places the government at risk

of losing its child pornography cases.

"If we didn't have the new law, every time you had a child

pornography case the defendant could argue that the pictures were

not of real kids but computer-generated fictional images," said

Flores. "The government might not be able to prove beyond a

reasonable doubt that the minor in the picture is a real minor.

You'd have reasonable doubt built into every case."

Flores added, however, that he was not aware of any federal

prosecution for child pornography that was dismissed on that

ground. He said that in a 1993 case that he prosecuted, United

States v. Kimbrough, the defendant did raise the argument with the

jury that the pictures at issue were virtual and did not depict

actual children. But the jury rejected the point and convicted the

defendant, he said.

Eric M. Freedman, a professor of constitutional law at Hofstra Law

School who is a fierce critic of the new law, said that Flores's

argument was deeply flawed.

It used to be "an element of the crime that a real child be used in

the production" of child pornography, Freedman said. It is a

requirement of due process that the government prove every element

of the crime beyond a reasonable doubt, he added. "To pass a new

law that essentially relieves the government of its burden of proof

on the theory that they are unable to meet it is unconstitutional,"

he said.

Freedman was also quick to throw darts at the other government

justifications for the expanded definition of child porn. He said

that if computer-generated virtual images can be outlawed because

they might "entice" real children to engage in illicit sexual

activities, then why not outlaw lollipops?

He said, too, that the "whetting the appetite of pedophiles"

argument is a variation of an old and discounted theme in law

reflected in ancient statutes that criminalized imagining or

discussing the death of a king.

"The theory in all these cases is that the objected-to speech

creates a bad tendency" that can lead to actual crime, Freedman

said. He explained that after many years of struggle and

oversuppression of political speech, the Supreme Court ruled in an

important 1969 case that so-called bad tendency speech can be

suppressed only if it is calculated to incite a reasonable person

to imminent unlawful violence.

"That's the rule," Freedman said. "There's no reason why the

protections of the United States Constitution have to be repealed

because digitization has been invented."

http://www.nytimes.com/2001/01/26/technology/26CYBERLAW.html?pagewanted=all?ex=983450493&ei=1&en=c09cec60d50f9c97