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
In the meantime, the prospect of Supreme Court review has enlivened
a sharp legal debate over the government's ability to restrict
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
Critics of the appellate court's ruling insist that the government
may ban computer-generated fictional images for any number of
"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,"
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."