Kudos to the Free Speech Coalition for winning - against staggering odds - a battle pitting the First Amendment against the federal government and public opinion. But fasten your seat belts; this is a long way from over.
Readers of our sister publication, AVN, will recall that the Free Speech Coalition challenged the Child Pornography Prevention Act of 1996 shortly after Utah Senator Orrin Hatch slipped it through as an eleventh-hour amendment to the 1996 Federal Budget [AVN, December, 1996, "Special Report" by Clyde DeWitt]. In a nutshell, the challenged 1996 law prohibits possession or distribution of visual depictions that appear to be or leave the impression that they are visual depictions of minors engaged in sexually explicit conduct.
Put in perspective, this is a thorny problem. To most, "child pornography" means photographs of prepubescent children engaged in sexual activities, usually with adults. In the adult video world, it brings about nightmarish memories of Traci Lords and a few other isolated instances where adult motion pictures featured a barely-underage performer that hoodwinked an unsuspecting producer and, as a result, cost tons of money and headache to everyone up and down the chain of distribution.
Fundamentally, this all starts with New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), where the Supreme Court in essence held that a visual depiction of a minor engaged in sexual activities was not protected by the First Amendment, regardless of obscenity. Two years later, Congress enacted a law against trafficking in such depictions. The Supreme Court shored up the Ferber decision in Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990); and Congress fine-tuned and the courts interpreted the federal anti-child-pornography law in the ensuing 12 years such that, as of 1996, the rules were these: Possession or distribution of a visual depiction of a person less than 18 years of age engaged in sexual activity was a serious federal felony, guaranteeing anyone convicted several years in the hoosegow. Sexual activity was defined to include erotic depictions of the genital or pubic area to the extent that there was talk of an investigation of the Calvin Klein company for some of its underwear advertisements (thwarted when it turned out that the models were over 18).
Armed with this powerful set of federal laws, what once was the National Obscenity Enforcement Unit during the heyday of the Reagan/Meese anti-adult-erotica campaign became an anti-pedophile dynamo, nabbing hundreds of pedophiles. That effort has continued to expand to this day, particularly using the Internet.
The modus operandi of the DOJ's anti-child-pornography unit often involves FBI agents posing as pedophiles themselves, engaging in a common pedophile practice of exchanging child pornography of interest over the Internet. A subpoena of the target's provider (e.g., AOL) garners the target's home address, resulting in a search of the target's computer. The child pornography on the computer is the basis of the prosecution under the federal law.
Rarely in these cases is there a doubt about the age of the relevant person depicted in the photograph. Generally, they are clearly prepubescent; no expert witness is necessary to establish that the person is under 18 at the time of the photography. After all, the target is a pedophile whose interest is prepubescent sexual activity. These types of prosecutions always have the full support of the adult video industry, which views "child pornography" (as that term is traditionally understood) as its enemy. It prides itself in being an adult industry, carefully screening performers and customers where age is in doubt. This is consistent with the prevailing sentiment that, insofar as sexual matters are concerned, adults should be free to do what they want, so long as only consenting adults are involved.
The perceived problem in 1996 was that, given computers, it was becoming increasingly difficult to determine what was a real photo and what was the product of a computer trick. Remember Forrest Gump's face-to-face meetings with two, long-dead presidents, Kennedy and Johnson? But in one of these pedophile prosecutions, it is up to the Government to establish beyond a reasonable doubt that the charged photograph was a visual depiction of a minor engaged in sexual activity. What if it isn't? Maybe it's a morph, like in Forrest Gump. Reasonable doubt?
For the DOJ, the answer to that problem was found in the 1996 CPPA, supplementing existing federal law to prohibit visual depictions which "appear to be" or "leave the impression" that they are of a minor engaged in enumerated sexual conduct. By the CPPA standard, if it looks like child pornography, then, by law, it is child pornography, and the defendant is guilty. On the other side of the coin, if it is a motion picture that includes a scene that appears to be a historically accurate 17-year-old engaging in any of the listed activities, then it is equally subject to the law, even if the actor was 19 at the time of the filming. Congress obviously made a snap judgment that the former is more important than the latter.
The 1996 CPPA law includes an affirmative defense that the depiction is of actual adults engaged in the conduct in question and that the defendant "did not advertise, promote, present, describe or distribute the material in such a manner as to convey the impression that it is or contains a visual depiction of a minor engaging in sexually explicit conduct." On the one hand, properly documented adult product offers this defense: There is a prominent disclosure that all performers were adults at the time that the images were made; and records kept in compliance with 18 U.S.C. � 2257 will establish the identity and age of each of the performers, and the disclosure statement required by �2257 will establish the location of those records. Supposedly.
The problems are several. First, this is an affirmative defense. That means you get indicted, go to trial and, if you can prove that these were real adult performers, and the jury believes you, then you can be acquitted. Otherwise, you get dozens of months in a Level II Bureau of Prisons facility. Also, the disclosure required by �2257 only says where the records were when the image was produced, and then only if it was after July of 1995, the effective date of �2257. What about old pictures and ones made by long-gone adult producers?
The real problem here, of course, is what "appears to be" or "leaves the impression" of a minor engaged in sexual activity. If the subject looks like he or she was 12 when the depiction was made, this provides little real problem to anyone. But when does an 18-year-old "appear to be" only 17? Or a 19-year-old "appear to be" 16? Or a 20-year-old "appear to be" 15? Several porn stars currently get "carded" at liquor-serving establishments, and at least one retired from the business because she looked like a minor and make-up couldn't do much to change that. Given the difficulty of establishing the defense that is allowed, all of a sudden this law looms big over the adult media industry. Thus, the Free Speech Coalition's assault on the law.
FSC filed a challenge to the CPPA in federal court in San Francisco, resulting in an unpublished opinion rejecting the challenge. FSC appealed to the United States Court of Appeals for the Ninth Circuit (covering the Western United States) - a process that consumed nearly two-and-a-half years. In the interim, two other circuits, the First (covering the Northeast) and Eleventh (covering the Southeast) had rejected comparable challenges. United States v. Hilton, 167 F.3d 61 (1st Cir. 1999), cert. denied sub nom Hilton v. United States, ___ U.S. ___, 120 S.Ct. 115, ___ L.Ed.2d ___ (Oct. 4, 1999); United States v. Acheson, 195 F.3d 645 (11th Cir. 1999). But when the opinion finally arrived, Free Speech won! The Free Speech Coalition, et al. v. Reno, ___ F.3d ___, 1999 WL 1206649 (9th Cir., December 17, 1999). However, the issue is long from closed.
First, the decision was 2-1. The majority opinion was written by a "visiting" district (as opposed to a circuit) judge. Circuit Judge Warren Ferguson - generally regarded as a stalwart liberal - wrote a strong dissent, urging that result should match those of Hilton and Acheson.
What happens next? Presumably the government will seek rehearing in the Ninth Circuit. That is a two-pronged procedure, one asking the three-judge panel to reconsider what it did and the other asking the court "en banc" to reconsider the opinion. It is unlikely that this panel will reconsider its opinion because three-judge panels rarely change their minds. "En banc" rehearing usually means the whole court, in most circuits meaning 15-20 judges. However, the Ninth Circuit covers a section of the country that has experienced such explosive population growth since the country was divided into circuits that it has twenty-something judges and, therefore, en banc review involves only eleven of them. Whether a decision is considered en banc in the Ninth Circuit is a function of whether a majority of the active judges think it should. If so, a panel of eleven is appointed to hear the case; it is re-argued and the decision of the en banc panel is the final word.
If the decision stands after whatever rehearing or en banc review has completed, then there will exist what is known in appellate-lawyer jargon as a "split in the circuits" - the most compelling reason for the United States Supreme Court to exercise its discretion to consider an issue. Obviously one good reason for Article III of the Constitution calling for "one Supreme Court" is that the issue of whether a federal law is constitutional should not be resolved according to the circuit in which the law is being enforced.
You can bet that the Government will not give this up without a fight. Apparently, since the CPPA became law, it has become common practice to charge all of the pedophile cases alternatively under the "appears to be" language. So this opinion, if it stands, could wreak havoc with many federal pedophile convictions.
The substance of the majority of the FSC opinion would seem to make complete sense. The threshold issue is whether this law constitutes a "content-based" regulation of speech. The government contends that it falls within the content-neutral fiction, which supports the likes of adult zoning ordinances, designed to address secondary effects of speech. Here, the government claimed that the purpose of the CPPA was to address the secondary effects of simulated child pornography. Rejecting that argument, as did the other two circuits in the Hilton and Acheson cases, the Free Speech court held that, regardless of any secondary-effects-based motivation on the part of Congress, the simple fact of the matter is that the statute regulates expression wholly based upon content. Thus, it is invalid unless the government can show that it is narrowly tailored to serve a compelling governmental interest. In finding that it was not, the court found:
"By criminalizing all visual depictions that 'appear to be' or 'convey the impression' of child pornography, even where no child is ever used or harmed in its production, Congress has outlawed the type of depictions explicitly protected by the Supreme Court's interpretation of the First Amendment. Because the 1996 Act attempts to criminalize disavowed impulses of the mind, manifested in illicit creative acts, we determine that censorship through the enactment of criminal laws intended to control an evil idea cannot satisfy the constitutional requirements of the First Amendment."
In rejecting the government's contention that, in essence, child pornography using actual minors was constitutionally indistinguishable from that which only appeared so, the court reasoned: "The danger with this analysis is that it suggests that the more realistic an imaginary creation is, the less protection it is entitled to under the First Amendment. This is not because of any harm caused in its creation, rather it is because of the consequences of its purported reality. Yet, the Supreme Court has restricted the regulation of pornographic material involving minors because of the harm caused by its creation, not necessarily because of the consequences of its creation. The government's interest in prohibiting computer-generated child pornographic depictions is not the same as its interest in prohibiting child pornography produced by using actual children. In the latter instance there may be direct and indirect harm to a child. In the former instance there is no harm, and there can be none, to an actual child, if no real human is used in the production of the images. What is left then is an inconsistent effort to regulate the evil consequences of abusing children to make such images, even though no children are used in its production."
Of equal significance - and perhaps of more significance in the long run, given the Supreme Court's recent expression on the subject in City of Chicago v. Morales, ___ U.S. ___, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) - is that the court found the "appears to be" and "leaves the impression" language to be unconstitutionally vague. That analysis was not at all complicated. What objective standard can be used to determine that an image "appears to be" or "leaves the impression" that it is of a minor engaged in the enumerated conduct?
Obviously, this is not the last you will be reading about this topic! In the mean time, at the very least, there should be a conspicuous disclaimer in connection with any adult materials, announcing that the people photographed were all over 18 at the time the depictions were made.
(Clyde DeWitt is a partner in the Los Angeles, California law firm of Weston, Garrou & DeWitt. He can be reached through AVN Online's offices, at his office at 12121 Wilshire Boulevard, Suite 900 Los Angeles, CA 90025 or over the Internet at "[email protected]". Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.)
