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[Steve]

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(Carl S. Kaplan, NY Times)---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 
pornography law.   

In the meantime, the prospect of Supreme Court review has 
enlivened a sharp legal debate over the government's ability to 
restrict "virtual" images.   

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 or 
presentation."   

Critics of the appellate court's ruling insist that the government may 
ban computer-generated fictional images for any number of 
legitimate reasons.   

"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," he said.   

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."   

Copyright 2001 The New York Times Company   






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