Virtual Child Pornography and The Constitution

Historical Background

In Miller v. California, the Supreme Court held that obscene speech does not receive First Amendment protection because obscenity serves no crucial role in the exposition of ideas and has little social value. The Court developed a balancing test that asks: (a) whether community standards would find that the work appeals to the prurient interest; (b) whether the work depicts, in an offensive way, sexual conduct specifically defined by state law; and (c) whether the work lacks serious literary, artistic, political or scientific value. Material that ‘passes’ the Miller test is deemed obscene and not afforded First Amendment protection. In New York v. Ferber, the Court held that child pornography involving actual children is a category of speech not protected, and may be prohibited even if not obscene. The Court in Osborne v. Ohio held that the possession of child pornography is not afforded First Amendment Protection.

In 1996, Congress passed the Child Pornography Prevention Act criminalizing the creation of virtual child pornography ("VPA"). 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 included a “pandering” provision stating that any image being promoted in a manner that “conveys the impression” that a minor engaging in sexually explicit conduct is depicted, is illegal.

The Supreme Court found the CPPA unconstitutional. Congress then promulgated the PROTECT Act (Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today). Built on the same platform as the CPPA, it contains important distinctions that avoid the Constitutional pitfalls of the CPPA. The Court found the PROTECT Act to be Constitutional because First Amendment protection extends only to lawful speech; offers to engage in illegal transactions are excluded from First Amendment protection. Scalia stated that VCP marketed as VCP is not proscribed by the PROTECT Act because the Act proscribes only pandering where the intention is to cause belief that the material is contraband. Thus, one who creates VCP – even if it is indistinguishable from real child pornography - and markets it as VCP, is afforded First Amendment protection.

Should It Be Legal to Market VCP As VCP?

VCP does not damage children in its production because children were probably never involved in its production. Perhaps VCP is beneficial to children by allowing potential producers of real child pornography to instead turn to its legal cousin to avoid prosecution? Thus, VCP may decrease cases of sexual abuse by allowing pedophiles to sublimate their desires into a victimless alternative not intrinsically related to the sexual abuse of children. Can the Government restrict this harmless speech? Seemingly, as long as the VCP is not obscene, production is not proscribed under Ferber, nor is possession proscribed under Osborne. However, perhaps VCP is obscene and therefore not afforded First Amendment rights under Miller?

1. Does the work, applying community standards, appeal to the prurient interest?

The first question in applying this standard to VCP is: which community's standards applies? If one produces VCP and posts it online, is the internet community the community we must look to? Some courts held the Miller test not viable in the context of a global internet. The Supreme Court disagreed and held that refusal to permit national standards to apply online makes regulation of illegal expression online impossible.

Does VCP appeal to the prurient interest? Although some real images of children seem innocuous, often these images are found stimulating by pedophiles. Are those images child pornography? If they are, virtually all depictions of children – whom to pedophiles are highly eroticized sexual objects – are likely to be classified as child pornography. Obviously this cannot be true, and although the pedophile might have nefarious uses for the innocent picture, it is nevertheless an innocent picture. Conversely, VCP is specifically produced for pedophiles and people who are stimulated by these images. As a result, these images appeal to the prurient interests by community standards.

2. Does the work depict in an offensive way, sexual conduct specifically defined by state law?

Arguably, any material that aids or incites the pedophile would undoubtedly be repugnant and offensive. According to the Mayo Clinic, 30%-80% of individuals who viewed child pornography and 76% of individuals who were arrested for internet child pornography, had molested a child. Thus, any depiction of child pornography, even if it involved no children in its production, would arguably be found to be offensive.

The pedophile often uses child pornography as a way of tricking his victim into believing that sexual relations between adults and children are normal. VCP indistinguishable from real child pornography is as dangerous as the real thing. The pedophile can utilize the virtual depiction just as he would the real one. Even if the VCP were distinguishable from real child pornography, can the child victim recognize that difference? Thus, VCP is offensive simply because it is a tool utilized by the pedophile.

3. Does the work have value?

As far as the Miller Court was concerned, possessing some kind of value was not enough to save a work from being obscene. It is unlikely that VCP could have any serious value given that it is created and traded with pedophiles' interests in mind. In regard to real child pornography, the Ferber court stated: “We consider it unlikely that visual depictions of children performing sexual acts or lewdly exhibiting their genitals would often constitute an important and necessary part of a literary performance or scientific or educational work.” Logically, the same would hold true for VCP.

Conclusion

Real child pornography has been recognized by the courts as the repulsive tool of child molestation it is. Although Congress has attempted to equate VCP with real child pornography, the Supreme Court has thwarted Congress’ attempts. Although debatable whether or not VCP is as damaging as real child pornography, VCP is by its very nature obscene. Because VCP passes the Miller test, it ought not to be afforded First Amendment Protection.

-- DavidMehl - 15 Apr 2010