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/ _____________________________________ ------------------------------------------------------------------------- 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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