WASHINGTON (KRT) — The U.S. Supreme Court this week will hear arguments on an amendment to the federal child pornography law that critics say is so broad it would make such mainstream films as “Risky Business” and “Romeo and Juliet” criminal.
The government has asked the top court to uphold the Child Pornography Protection Act of 1996, which it contends is a legitimate and essential tool to keep pedophiles from preying on children. In oral arguments set for Tuesday, a group of civil libertarians will try to convince the justices that the law violates the First Amendment’s guarantee of free speech.
The challengers claim the statute targets numerous mainstream films that depict sexually active teenagers, as well as video games, cartoons, photographs and paintings. They maintain it is so vaguely worded that individuals have no way of knowing what is over the line until police knock on their doors and confiscate it.
That’s because the law bans not only real child pornography — that is, pictures of individuals under the age of 18 in sexual situations — but also images that “appear to” or “convey the impression” that they depict minors engaged in sexually explicit conduct.
Mere possession of what some are calling “virtual” child porn carries a prison term of up to 10 years; the penalty for creating or distributing such images is up to 30 years.
The legislators who amended an earlier child pornography statute said the change was a necessary accommodation to the computer age, in which anyone with a computer can alter photographs and video clips or create fictional images to look exactly like actual images. That way, a film purporting to show children engaged in sexual activity might be based on no real people at all.
“Since there are no real children involved,” said Eric Freedman, a professor of First Amendment law at Hofstra University, “what the statute targets is the concept of sex with children. Down that road lies thought control.”
Supporters deny the law was meant to target mainstream films or artwork.
“This law merely regulates sexually explicit images which are virtually indistinguishable to unsuspecting viewers from un-retouched photographs of actual children engaging in the act,” said Jay Sekulow, chief counsel for the American Center for Law and Justice, which represents members of the House and Senate who drafted the 1996 amendment.
But challengers of the law say its language is so broad that it criminalizes far more than child pornography, and it makes no exception for legitimate users of what might appear pornographic, such as sex therapists, researchers and the authors of textbooks and safe-sex manuals.
Within weeks of passage of the amended child pornography law in 1996, a legal challenge was mounted by the Free Speech Coalition, an adult-entertainment trade association, along with a publisher, an artist and a photographer who feared the law would infringe on their constitutionally protected right to artistic expression.
A federal district court judge found the law constitutional, but the U.S. court of appeals in San Francisco struck it down, saying “censorship through the enactment of criminal laws intended to control an evil idea cannot satisfy the constitutional requirements of the First Amendment.”
Other appellate courts have disagreed, which likely helped persuade the Supreme Court to take the case.
The government says computer-generated images of minors engaged in sexually explicit conduct “whet the appetite” of pedophiles and allow them to seduce real children. It also argues that the statute is unenforceable without the “virtual” provisions, since the government would have the burden of proving that the image depicts a real child, and modern computer technology makes that distinction extremely difficult.
Supporters of the legislation argue that even though no real child was exploited in the manufacture of a virtual image, such images can lead to the molestation or exploitation of real children.
But Ann Beeson of the American Civil Liberties Union, which filed a friend-of the-court brief siding with the challengers, says that can never be a sufficient reason to ban otherwise-protected speech: “All the government would have to say to justify any censorship law is, ‘This speech might cause a crime.’”