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Ready for comments.
Virtual Child Pornography And The Constitution | |
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< | In the pre-online days, pedophiles trolled playgrounds for children, using various pretexts for luring them to where they could be abducted and molested. The internet has provided something of a bounty to the predators as pornographic images and videos can be easily transmitted via the web. Besides using the images to gratify themselves sexually and collecting them as trophies, pedophiles sometimes provide them to children to desensitize them and to suggest that sexual relations between adults and children are normal. | | | | |
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< | The digital age has also brought with it a proliferation in the creation of child pornography. Twenty years ago, the only way to produce child pornography was to take photos of the children and develop them. Today, child pornography is easily ‘created’ with a computer and some software. This virtual child pornography (“VCP”) can be produced in a number of ways. Forms of such pornography include: modified photographs of real children, non-minor teenagers made to look younger, fully computer-generated imagery or adults made to look like children. | >
> | The digital age has brought with it a proliferation in the creation of child pornography. Today, child pornography is easily ‘created’ with a computer and some software. Virtual child pornography (“VCP”) can be produced in a number of ways. Forms of such pornography include: modified photographs of real children, non-minor teenagers made to look younger, fully computer-generated imagery or adults made to look like children. | | |
Historical Background | | | In 1982, in New York v. Ferber, the Court held that child pornography involving actual children is a category of speech not protected by the Constitution and that such depictions may be prohibited even if they are not obscene. Although Ferber focused on production and distribution of child pornography, in 1990, the Court in Osborne v. Ohio upheld an Ohio statute criminalizing mere possession of child pornography. | |
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< | In 1996, Congress passed the Child Pornography Prevention Act. The CPPA expanded the definition of child pornography by criminalizing the creation of VCP. Under the CPPA, images that appear to depict children but do not, including images of youthful-looking adults or images that are computer-generated, would be illegal. The CPPA also included a “pandering” provision. This provision stated that any visual image that has been promoted in a manner that “conveys the impression” that a minor engaging in sexually explicit conduct is depicted is illegal. Seemingly, the pandering provision would have criminalized cases where there was no pornographic image at all, such as a case where the sender of an email claims in the subject line of the email that there is a pornographic image of a child attached to the email, when in fact all that is attached is an image of a blank wall. | >
> | In 1996, Congress passed the Child Pornography Prevention Act. The CPPA expanded the definition of child pornography by criminalizing the creation of VCP. Under the CPPA, images that appeared to depict children but do not, including images of youthful-looking adults or images that are computer-generated, were illegal. The CPPA also included a “pandering” provision that stated that any visual image that has been promoted in a manner that “conveys the impression” that a minor engaging in sexually explicit conduct is depicted, is illegal. Seemingly, the pandering provision would have criminalized cases where there was no pornographic image at all, such as a case where the sender of an email claims in the subject line of the email that there is a pornographic image of a child attached to the email, when in fact all that is attached is an image of a blank wall. | | | In Ashcroft v. Free Speech Coalition, the Supreme Court found the CPPA unconstitutional on numerous grounds. The pandering provision was deemed overbroad because it criminalized downstream possession of material described, or pandered, as child pornography by someone earlier in the distribution chain even if no minors were actually involved in the production. The Court criticized the provision because it criminalized speech based solely “on how the speech is presented” rather than on “what is depicted.” | |
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< | Congress then came up with The PROTECT Act (Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today). It is built on the same platform as the CPPA with some important distinctions: (1) The Protect Act includes any digital image “that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.” (2) The Protect Act establishes the requirement of showing obscenity as defined by the Miller test, which was not an element of the 1996 law. (3) Congress removed the pandering provision from the definition of child pornography and drafted a separate section prohibiting only virtual images of minors engaged in sexually explicit conduct that are knowingly advertised, promoted, presented, distributed or solicited in a manner that reflects the belief, or are intended to cause another to believe, that they are obscene. (4) Finally, by adding a knowledge requirement, Congress protects individuals in possession of materials pandered as child pornography by someone earlier in the distribution chain so long as those individuals do not pander the materials as or believe that the materials are child pornography. | >
> | Congress then came up with The PROTECT Act (Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today). It is built on the same platform as the CPPA with some important distinctions: (1) The Protect Act includes any digital image “that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.” (2) The requirement of showing obscenity as defined by the Miller test, which was not an element of the 1996 law. (3) Congress removed the pandering provision from the definition of child pornography and drafted a separate section prohibiting only virtual images of minors engaged in sexually explicit conduct that are knowingly advertised, promoted, presented, distributed or solicited in a manner that reflects the belief, or are intended to cause another to believe, that they are obscene. (4) Finally, by adding a knowledge requirement, Congress protects individuals in possession of materials pandered as child pornography by someone earlier in the distribution chain so long as those individuals do not pander the materials as or believe that the materials are child pornography. | | | | |
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< | In United States v. Williams, the Eleventh Circuit held that the pandering provision of the PROTECT Act was overbroad and impermissibly vague because it criminalized the speech of someone who touts material as child pornography even when in fact it is either nonexistent or not pornographic. In addressing the vagueness challenge, the court also found it problematic that the statute lacked any intent requirement. In the court's view, the provision could apply to an e-mail entitled "Good pics of kids in bed" sent by a grandparent, with innocent pictures of grandchildren in pajamas attached. As a result, the Eleventh Circuit declared the PROTECT Act unconstitutional. The Supreme Court reversed the judgement of the Eleventh Circuit by finding the PROTECT Act to be Constitutional. | >
> | In United States v. Williams, the Eleventh Circuit held that the pandering provision of the PROTECT Act was overbroad and impermissibly vague because it criminalized the speech of someone who touts material as child pornography even when in fact it is either nonexistent or not pornographic. In addressing the vagueness challenge, the court also found it problematic that the statute lacked any intent requirement. In the court's view, the provision could apply to an e-mail entitled "Good pics of kids in bed" sent by a grandparent, with innocent pictures of grandchildren in pajamas attached. As a result, the Eleventh Circuit declared the PROTECT Act unconstitutional. The Supreme Court reversed and found the PROTECT Act to be Constitutional. | | | Scalia reasoned as follows: A statute is facially invalid if it prohibits a substantial amount of protected speech. However, because the Court in Miller and Ferber had already proscribed the material involved in the speech – the child pornography - the pandering provision is Constitutional because it targets the “collateral speech”- the pandering which introduces this contraband material into the child pornography distribution network. First Amendment protection only extends to lawful speech; offers to engage in illegal transactions are categorically excluded from First Amendment protection.
Scalia points out that VCP which is marketed as VCP will not be proscribed by the PROTECT Act. The Act proscribes only pandering where the intention is to cause another to believe that the material is contraband. Scalia claimed that Williams was not overruling Free Speech Coalition. Both decisions agreed that the CPPA’s prohibition on creation and distribution of VCP was a violation of First Amendment rights. As a result, one who creates VCP – even if it is indistinguishable from real child pornography - and markets it as VCP is afforded First Amendment rights. | |
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< | Should VCP Marketed As VCP be Legal? | >
> | Should It Be Legal to Market VCP As VCP? | | |
Instinctually, the vast majority of society is repulsed by child pornography. Children are usually the most innocent and defenseless of people. Child pornography harms and debases these innocents. The most damage to children occurs in the production of real child pornography. VCP obviously does not damage children in its production because children were quite possibly never involved in its production. Perhaps VCP is even beneficial to children. Perhaps potential producers of real child pornography might instead turn to its legal cousin so as to avoid prosecution. Perhaps VCP use may decrease cases of sexual abuse by allowing pedophiles to sublimate their desires. It is a victimless alternative that is not intrinsically related to the sexual abuse of children. As a result, goes the argument, the Government cannot restrict this harmless speech. As long as the VCP is not obscene, production is not proscribed under Ferber, nor is possession proscribed under Osborne. Let us examine whether VCP would at least be classified as obscene using the Miller test. |
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