Politech archive: http://www.politechbot.com/cgi-bin/politech.cgi?name=morphed --- From: Georgeat_private To: "Declan McCullagh" <declanat_private> Subject: FYI: Virtual child porn SCOTUS ruling Date: Tue, 16 Apr 2002 10:40:37 -0400 http://www.nytimes.com/aponline/national/AP-Scotus-Child-Porn.html April 16, 2002 Court Strikes Down Child Porn Ban By THE ASSOCIATED PRESS Filed at 10:19 a.m. ET WASHINGTON (AP) -- The Supreme Court struck down a congressional ban on virtual child pornography Tuesday, ruling that the First Amendment protects pornography or other sexual images that only appear to depict real children engaged in sex. The 6-3 ruling is a victory for both pornographers and legitimate artists such as moviemakers, who argued that a broad ban on simulated child sex could make it a crime to depict a sex scene like those in the recent movies ``Traffic'' or ``Lolita.'' The court said language in a 1996 child pornography law was unconstitutionally vague and far-reaching. [...] --- > --------------------------------------------------------------- > AN E-BULLETIN > LEGAL INFORMATION INSTITUTE -- CORNELL LAW SCHOOL > liiat_private > --------------------------------------------------------------- > The following decisions have just arrived via the LII's > direct Project HERMES feed from the Supreme Court. > > These are not the decisions themselves nor excerpts from them, > but summaries (syllabi) prepared by the Court's Reporter of > Decisions. Instructions for accessing the full text of any of > these decisions are provided at the end of this bulletin, as are > instructions for subscribing in the event that this bulletin > has been given you by a colleague and you'd like a > subscription of your own. > > =============================================================== > ASHCROFT V. FREE SPEECH COALITION (00-795) > Web-accessible at: > http://supct.law.cornell.edu/supct/html/00-795.ZS.html > > Argued October 30, 2001 -- Decided April 16, 2002 > Opinion author: Kennedy > > =============================================================== > > The Child Pornography Prevention Act of 1996 (CPPA) expands the > federal prohibition on child pornography to include not only > pornographic images made using actual children, 18 U.S.C. sect. > 2256(8)(A), but also "any visual depiction, including any > photograph, film, video, picture, or computer or > computer-generated image or picture" that "is, or appears to > be, of a minor engaging in sexually explicit conduct," > sect.2256(8)(B), and any sexually explicit image that is > "advertised, promoted, presented, described, or distributed in > such a manner that conveys the impression" it depicts "a minor > engaging in sexually explicit conduct," sect. 2256(8)(D). Thus, > sect. 2256(8)(B) bans a range of sexually explicit images, > sometimes called "virtual child pornography," that appear to > depict minors but were produced by means other than using real > children, such as through the use of youthful-looking adults > or computer-imaging technology. Section 2256(8)(D) is aimed at > preventing the production or distribution of pornographic > material pandered as child pornography. Fearing that the CPPA > threatened their activities, respondents, an > adult-entertainment trade association and others, filed this > suit alleging that the "appears to be" and "conveys the > impression" provisions are overbroad and vague, chilling > production of works protected by the First Amendment. The > District Court disagreed and granted the Government summary > judgment, but the Ninth Circuit reversed. Generally, > pornography can be banned only if it is obscene under Miller v. > California, 413 U.S. 15, but pornography depicting actual > children can be proscribed whether or not the images are > obscene because of the State's interest in protecting the > children exploited by the production process, New York v. > Ferber, 458 U.S. 747, 758, and in prosecuting those who promote > such sexual exploitation, id., at 761. The Ninth Circuit held > the CPPA invalid on its face, finding it to be substantially > overbroad because it bans materials that are neither obscene > under Miller nor produced by the exploitation of real children > as in Ferber. > > Held: The prohibitions of sects. 2256(8)(B) and 2256(8)(D) are > overbroad and unconstitutional. Pp. 6-21. > (a) Section 2256(8)(B) covers materials beyond the > categories recognized in Ferber and Miller, and the reasons the > Government offers in support of limiting the freedom of speech > have no justification in this Court's precedents or First > Amendment law. Pp. 6-19. > (1) The CPPA is inconsistent with Miller. It extends > to images that are not obscene under the Miller standard, which > requires the Government to prove that the work in question, > taken as a whole, appeals to the prurient interest, is patently > offensive in light of community standards, and lacks serious > literary, artistic, political, or scientific value, 413 U.S., > at 24. Materials need not appeal to the prurient interest > under the CPPA, which proscribes any depiction of sexually > explicit activity, no matter how it is presented. It is not > necessary, moreover, that the image be patently offensive. > Pictures of what appear to be 17-year-olds engaging in sexually > explicit activity do not in every case contravene community > standards. The CPPA also prohibits speech having serious > redeeming value, proscribing the visual depiction of an > idea--that of teenagers engaging in sexual activity--that is a > fact of modern society and has been a theme in art and > literature for centuries. A number of acclaimed movies, filmed > without any child actors, explore themes within the wide sweep > of the statute's prohibitions. If those movies contain a > single graphic depiction of sexual activity within the > statutory definition, their possessor would be subject to > severe punishment without inquiry into the literary value of > the work. This is inconsistent with an essential First > Amendment rule: A work's artistic merit does not depend on the > presence of a single explicit scene. See, e.g., Book Named > "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney > General of Mass., 383 U.S. 413, 419. Under Miller, redeeming > value is judged by considering the work as a whole. Where the > scene is part of the narrative, the work itself does not for > this reason become obscene, even though the scene in isolation > might be offensive. See Kois v. Wisconsin, 408 U.S. 229, 231 > (per curiam). The CPPA cannot be read to prohibit obscenity, > because it lacks the required link between its prohibitions and > the affront to community standards prohibited by the obscenity > definition. Pp. 6-11. > (2) The CPPA finds no support in Ferber. The Court > rejects the Government's argument that speech prohibited by the > CPPA is virtually indistinguishable from material that may be > banned under Ferber. That case upheld a prohibition on the > distribution and sale of child pornography, as well as its > production, because these acts were "intrinsically related" to > the sexual abuse of children in two ways. 458 U.S., at 759. > First, as a permanent record of a child's abuse, the continued > circulation itself would harm the child who had participated. > See id., at 759, and n. 10. Second, because the traffic in > child pornography was an economic motive for its production, > the State had an interest in closing the distribution network. > Id., at 760. Under either rationale, the speech had what the > Court in effect held was a proximate link to the crime from > which it came. In contrast to the speech in Ferber, speech > that is itself the record of sexual abuse, the CPPA prohibits > speech that records no crime and creates no victims by its > production. Virtual child pornography is not "intrinsically > related" to the sexual abuse of children. While the Government > asserts that the images can lead to actual instances of child > abuse, the causal link is contingent and indirect. The harm > does not necessarily follow from the speech, but depends upon > some unquantified potential for subsequent criminal acts. The > Government's argument that these indirect harms are sufficient > because, as Ferber acknowledged, child pornography rarely can > be valuable speech, see id., at 762, suffers from two flaws. > First, Ferber's judgment about child pornography was based upon > how it was made, not on what it communicated. The case > reaffirmed that where the speech is neither obscene nor the > product of sexual abuse, it does not fall outside the First > Amendment's protection. See id., at 764-765. Second, Ferber > did not hold that child pornography is by definition without > value. It recognized some works in this category might have > significant value, see id., at 761, but relied on virtual > images--the very images prohibited by the CPPA--as an > alternative and permissible means of expression, id., at 763. > Because Ferber relied on the distinction between actual and > virtual child pornography as supporting its holding, it > provides no support for a statute that eliminates the > distinction and makes the alternative mode criminal as well. > Pp. 11-13. > (3) The Court rejects other arguments offered by the > Government to justify the CPPA's prohibitions. The contention > that the CPPA is necessary because pedophiles may use virtual > child pornography to seduce children runs afoul of the > principle that speech within the rights of adults to hear may > not be silenced completely in an attempt to shield children > from it. See, e.g., Sable Communications of Cal., Inc. v. FCC, > 492 U.S. 115, 130-131. That the evil in question depends upon > the actor's unlawful conduct, defined as criminal quite apart > from any link to the speech in question, establishes that the > speech ban is not narrowly drawn. The argument that virtual > child pornography whets pedophiles' appetites and encourages > them to engage in illegal conduct is unavailing because the > mere tendency of speech to encourage unlawful acts is not a > sufficient reason for banning it, Stanley v. Georgia, 394 U.S. > 557, 566, absent some showing of a direct connection between > the speech and imminent illegal conduct, see, e.g., Brandenburg > v. Ohio, 395 U.S. 444, 447 (per curiam). The argument that > eliminating the market for pornography produced using real > children necessitates a prohibition on virtual images as well > is somewhat implausible because few pornographers would risk > prosecution for abusing real children if fictional, > computerized images would suffice. Moreover, even if the > market deterrence theory were persuasive, the argument cannot > justify the CPPA because, here, there is no underlying crime at > all. Finally, the First Amendment is turned upside down by the > argument that, because it is difficult to distinguish between > images made using real children and those produced by computer > imaging, both kinds of images must be prohibited. The > overbreadth doctrine prohibits the Government from banning > unprotected speech if a substantial amount of protected speech > is prohibited or chilled in the process. See Broadrick v. > Oklahoma, 413 U.S. 601, 612. The Government's rejoinder that > the CPPA should be read not as a prohibition on speech but as a > measure shifting the burden to the accused to prove the speech > is lawful raises serious constitutional difficulties. The > Government misplaces its reliance on sect. 2252A(c), which > creates an affirmative defense allowing a defendant to avoid > conviction for nonpossession offenses by showing that the > materials were produced using only adults and were not > otherwise distributed in a manner conveying the impression that > they depicted real children. Even if an affirmative defense > can save a statute from First Amendment challenge, here the > defense is insufficient because it does not apply to possession > or to images created by computer imaging, even where the > defendant could demonstrate no children were harmed in > producing the images. Thus, the defense leaves unprotected a > substantial amount of speech not tied to the Government's > interest in distinguishing images produced using real children > from virtual ones. Pp. 13-19. > (b) Section 2256(8)(D) is also substantially overbroad. > The Court disagrees with the Government's view that the only > difference between that provision and sect. 2256(8)(B)'s > "appears to be" provision is that sect. 2256(8)(D) requires the > jury to assess the material at issue in light of the manner in > which it is promoted, but that the determination would still > depend principally upon the prohibited work's content. The > "conveys the impression" provision requires little judgment > about the image's content; the work must be sexually explicit, > but otherwise the content is irrelevant. Even if a film > contains no sexually explicit scenes involving minors, it could > be treated as child pornography if the title and trailers > convey the impression that such scenes will be found in the > movie. The determination turns on how the speech is presented, > not on what is depicted. The Government's other arguments in > support of the CPPA do not bear on sect. 2256(8)(D). The > materials, for instance, are not likely to be confused for > child pornography in a criminal trial. Pandering may be > relevant, as an evidentiary matter, to the question whether > particular materials are obscene. See Ginzburg v. United > States, 383 U.S. 463, 474. Where a defendant engages in the > "commercial exploitation" of erotica solely for the sake of > prurient appeal, id., at 466, the context created may be > relevant to evaluating whether the materials are obscene. > Section 2256(8)(D), however, prohibits a substantial amount of > speech that falls outside Ginzburg's rationale. Proscribed > material is tainted and unlawful in the hands of all who > receive it, though they bear no responsibility for how it was > marketed, sold, or described. The statute, furthermore, does > not require that the context be part of an effort at > "commercial exploitation." Thus, the CPPA does more than > prohibit pandering. It bans possession of material pandered as > child pornography by someone earlier in the distribution chain, > as well as a sexually explicit film that contains no youthful > actors but has been packaged to suggest a prohibited movie. > Possession is a crime even when the possessor knows the movie > was mislabeled. The First Amendment requires a more precise > restriction. Pp. 19-20. > (c) In light of the foregoing, respondents' contention > that sects. 2256(8)(B) and 2256(8)(D) are void for vagueness > need not be addressed. P. 21. > > 198 F.3d 1083, affirmed. > > Kennedy, J., delivered the opinion of the Court, in which > Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, > J., filed an opinion concurring in the judgment. O'Connor, J., > filed an opinion concurring in the judgment in part and > dissenting in part, in which Rehnquist, C. J., and Scalia, J., > joined as to Part II. Rehnquist, C. J., filed a dissenting > opinion, in which Scalia, J., joined except for the paragraph > discussing legislative history. > ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ Declan McCullagh's photographs are at http://www.mccullagh.org/ ------------------------------------------------------------------------- Sign this pro-therapeutic cloning petition: http://www.franklinsociety.org -------------------------------------------------------------------------
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