FC: Annoy.com attorney replies to new "morphed" child porn bill

From: Declan McCullagh (declanat_private)
Date: Mon May 06 2002 - 18:59:03 PDT

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    See also:
    
    "Ashcroft & friends: We'll try again to ban 'morphed' child porn"
    http://www.politechbot.com/p-03470.html
    
    Politech archive:
    http://www.politechbot.com/cgi-bin/politech.cgi?name=morphed
    
    ---
    
    Date: Mon, 6 May 2002 17:26:55 -0700
    From: "Clinton D. Fein" <clinton.feinat_private>
    To: <declanat_private>, <politechat_private>
    
    Hi Declan:
    
    FYI. I have attached, with the permission of William Turner, (one of my
    attorneys in both ApolloMedia v. Reno and United States v. ApolloMedia),
    a response to a request from Senator Leahy's staff for his comments on
    the proposed bill that the Administration says "responds to the Supreme
    Court's decision in Ashcroft v. Free Speech Coalition, No. 00-795 (April
    16, 2002)."=20
    
    In addition to teaching The First Amendment and the Press at the
    University of California, Berkeley, Bill also submitted a brief amici
    curiae in Free Speech Coalition on behalf of the American Civil
    Liberties Union and other organizations.
    
    I've also included a link to the appropriately formatted-and-footnoted
    letter on annoy.com, as well as a WPD of the Amicus brief (and a
    not-so-brilliantly-formatted-but-adequate HTML version, as well).=20
    
    The Letter:
    http://www.annoy.com/sectionless/doc.html?DocumentID=3D100344
    
    The Amicus Brief
    http://www.annoy.com/sectionless/Brief_of_ACLU_et_al_Ashcroft_v_Free_Speech_Coalition.htm
    
    or
    
    http://www.annoy.com/sectionless/AmicusBrief.wpd
    
    Clinton
    
    
    Bill says he did not have a chance to do any extensive research on the
    new bill, but offered the following overview:
    
    [excerpt]
    
    The bill is unsupported by evidence that it addresses a real problem,
    and there is a need for hearings.=20
    
    The bill seems to be a statute in search of a problem. It attempts to
    establish entire new categories of prohibited speech, without any
    evidence that there is an actual need for legislation. Specifically: (a)
    there is no evidence that currently available technology can in fact
    create images that are "virtually indistinguishable" from pictures of
    real children engaging in sexually explicit conduct; (b) there is no
    evidence that anyone has ever used a computer-generated image for the
    purpose of actual child abuse; [2] and (c) there is no evidence that any
    prosecution for actual child pornography or abuse has failed, or not
    been brought, because the government has been unable to meet its burden
    of proving that real children were involved.[3]=20
    
    Thus, the new bill seems unnecessary to serve any valid legislative
    purpose. At a minimum, hearings must be held so that the Senate can
    consider the strength and quality of evidence said to require new
    restrictions on speech.=20
    
    The bill shares most of the constitution defects condemned in Free
    Speech Coalition=20
    
    As explained in the Court's decision, the CPPA violated the First
    Amendment because it made criminal speech that was neither "obscene"
    under the Court's long-established Miller test nor "child pornography"
    involving the abuse of real children under the Court's Ferber decision.
    The new bill attempts to do the same. Thus, for example, it makes
    criminal speech that does not appeal to the prurient interest and that
    does have redeeming artistic, political or other social value. In
    addition to the examples referred to in the Court's opinion, the bill
    would make criminal the use by therapists and academic researchers of
    computer-generated images, the making of explicit anti-child abuse
    documentary videos, etc. Under the bill, there can be no legitimate
    reason for possessing a prohibited image; it is a strict liability
    criminal statute. Without any "legitimate use" exception, the bill makes
    impossible the scholarly research that might evaluate whatever empirical
    assumptions are said to support its enactment.=20
    
    Further, the Administration analysis fails to identify any compelling
    (or other) government interest to be served by the bill. Assuming that
    the interests are the same as the government advanced in Free Speech
    Coalition, they are no more valid here. That is, to the extent that the
    government claims that computer-generated images may "whet the appetite"
    of pedophiles or be used to seduce minors, the bill punishes speech
    because of its "tendency to encourage unlawful acts;" and the Court
    squarely reaffirmed that this is a constitutionally inadequate basis for
    outlawing speech. See Free Speech Coalition, slip op. at 15. Government
    can and should outlaw abuse of children, but it cannot outlaw speech
    unless the speech is shown to incite actual illegal conduct. Id.; see
    Brandenburg v. Ohio, 395 U.S. 444 (1969).=20
    
    Prohibiting "pandering" of protected speech is unconstitutional=20
    
    Section 3 of the bill attempts to make it a crime to "describe" an image
    as containing a "visual depiction of a minor engaging in sexually
    explicit conduct." It would be a crime even if the image itself was
    neither obscene nor prohibitable child pornography. In other words, the
    bill attempts to criminalize the speech that describes the image even if
    the image itself is protected. This, too, violates the First
    Amendment.[4]=20
    
    As the Court ruled in Free Speech Coalition, in invalidating the
    "conveys the impression" provision of the CPPA, speech cannot be
    prohibited based on "how it is presented" as opposed to "what is
    depicted." Slip op. at 19. Evidence of "pandering" may be relevant in an
    obscenity prosecution on the issue of whether particular materials are
    in fact obscene (id. at 20), but it cannot be treated as criminal in
    itself.=20
    
    New prohibition on "obscenity depicting young children"=20
    
    Section 4 of the bill, a new concept, is a constitutional mess. Although
    titled "obscenity depicting young children," it does not in fact deal
    with obscenity but establishes a broad new category of prohibited
    speech. "Obscenity" of course is already a crime, whether it depicts
    children or adults. If this provision dealt with obscenity, it would
    simply be redundant of existing federal obscenity laws. But Section 4
    makes it a crime to create or possess a "visual depiction that is, or is
    virtually indistinguishable from, that of a pre-pubescent child engaging
    in sexually explicit conduct." This goes far beyond obscenity. "Sexually
    explicit conduct" is defined in the statute. It does not require that
    the depiction predominantly appeal to the prurient interest; it does not
    require that the depiction be patently offensive to community standards;
    and it does not require that the depiction be without redeeming
    artistic, scientific, political or other social value. In short, Section
    4 prohibits a depiction that is not obscene, does not depict or involve
    a real child, does not appeal to the prurient interest, is not offensive
    to community standards, and does have artistic or other social value.
    This blatantly violates the First Amendment.=20
    
    Void for Vagueness=20
    
    The Court in Free Speech Coalition, having invalidated the CPPA on
    overbreadth grounds, found it unnecessary to decide whether the statute
    was also void for vagueness. Slip op. at 21. The bill shares the same
    vagueness issues as the CPPA. As a criminal statute that restricts and
    punishes pure speech, the bill is too vague. It makes it a crime to have
    an image "that is, or appears virtually indistinguishable from" a
    picture of a real minor engaging in sexual conduct, and it is a crime if
    it "appears" to show a "lascivious" exhibition of the genitals "or pubic
    area of any person." These inherently subjective prohibitions are
    invalid under well established Fifth Amendment principles. The vagueness
    test is at its strictest when a statute restricts speech. See Hoffman
    Estates v. Flipside, 455 U.S. 489 (1982); Smith v. Goguen, 415 U.S. 566
    (1974). Such a statute must provide more notice and allow less
    discretion, to ensure against arbitrary or discriminatory enforcement.
    See Reno v. ACLU, 526 U.S. 844, 871-72 (1997) (vagueness of criminal law
    "raises special First Amendment concerns because of its obvious chilling
    effect on free speech"). The provisions here are inherently subjective -
    among other things, they turn on how something "appears" to someone
    (prosecutor or juror) - and therefore cannot serve as the basis for a
    criminal conviction. See City of Chicago v. Morales, 119 S.Ct. 1849,
    1861-62 (1999), and cases cited.=20
    
    [/exerpt]
    _____________________________________
    =20
    Clinton Fein
    President
    ApolloMedia Corporation
    370 7th Street, Suite 6
    San Francisco, CA  94103
    Phone: 415-552-7655
    Fax: 415-552-7656
    http://apollomedia.com/
    _____________________________________
    
    
    
    
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