After nearly two years of consideration, the Ninth Circuit Court of Appeals delivered a landmark opinion today, declaring certain sections of the Child Pornography Prevention Act of 1996 [CPPA] to be unconstitutional. It was an impressive victory for the Free Speech Coalition [FSC], one of four plaintiffs that had sued the federal government in 1997, and lost at the District Court level.
The sections which the FSC challenged were those that allowed law enforcement officials to prosecute material where the person performing "appears to be" a minor, or where the work "convey[s] the impression" that the depiction portrays a minor.
"We were very specific in the portions of the statute that we were attacking," said plaintiffs' attorney H. Louis Sirkin. "We didn't attack it in its entirety... and unlike the two circuits that have already ruled [on the CPPA], in that those cases were clearly criminal cases where the material was clearly kids. You know, I'm surprised that the courts even held that the appellants in those cases could even raise the issue of the unconstitutionality [of the Act] because it clearly applied to them regardless of that language."
Originally, FSC v. Reno was argued through briefs as a summary judgment case before Judge Samuel Conti, a federal judge in the Northern District of California, who found that the plaintiffs' case was lacking in merit, and ruled for the government. The plaintiffs then appealed the decision to a three-judge panel of the U.S. Court of Appeals, consisting of Circuit Judges Warren J. Ferguson and Sidney R. Thomas, as well as Donald W. Molloy, a District Judge specially sitting.
"The district judge reasoned that the law was passed to prevent the secondary effects of the child pornography industry, specifically the exploitation and degradation of children," wrote Judge Molloy in the majority opinion. "The court also found that the Act addressed the need to control child pornography because virtual pornography led to the encouragement of pedophilia and the molestation of children. This reasoning was based on a finding that the CPPA is intended 'to counteract the effect that [real or virtual child pornography] has on its viewers, on children, and to society as a whole.' The lower court expressly found the legislation was not intended to regulate or outlaw the ideas themselves. We do not agree." [All citations omitted.]
In its opinion, the Court of Appeals analyzed the entire history of federal legislation regarding child pornography, noting that in all cases prior to the CPPA, legislators had focused specifically on harm to the child(ren) who participated in the making of the pornography; either actual harm reportedly caused by the sexual activity itself, or indirect harm stemming from the dissemination of the images through various media and in commercial transactions.
"[With the CPPA, the] regulation direction shifted from defining child pornography in terms of the harm inflicted upon real children to a determination that child pornography was evil in and of itself, whether it involved real children or not," the appeals court wrote. "This shift forms the basis of the constitutional challenge Free Speech makes here. The Child Pornography Prevention Act of 1996 expanded the law to combat the use of computer technology to produce pornography containing images that look like children. The new law sought to stifle the use of technology for evil purposes. This of course was a marked change in the criminal regulatory scheme. Congress had always acted to prevent harm to real children. In the new law, Congress shifted the paradigm from the illegality of child pornography that involved the use of real children in its creation to forbid a 'visual depiction' that 'is, or appears to be, of a minor engaging in sexually explicit conduct.'
In that regard, the court focused on the seminal Supreme Court case involving child porn, New York v. Ferber, noting that the decision specifically states, in relation to educating adults about the harms of child porn or expressing certain concepts about the sexual relationship between adults and children, "a person over the statutory age who perhaps looked younger could be utilized." Such statement stands in direct contradiction to the activity proscribed by the CPPA.
"Under the circumstances, if the CPPA is to survive the constitutional inquiry the government must establish a compelling interest that is served by the statute, and it must show that the CPPA is narrowly tailored to fulfill that interest," the opinion continued. "The district court found that even if no children are involved in the production of such materials the devastating secondary effect that sexually explicit materials involving the images of children have on society, and on the well being of children, merits the regulation of such images. This legislative finding supported the lower court's finding of a compelling state interest. We believe this legal determination is wrong....
"There are three compelling interests put forward when instituting efforts to curb child pornography using images of actual children. The first interest is that child pornography requires the participation of actual children in sexually explicit situations to create the images. The second interest stems from the belief that dissemination of such pornographic images may encourage more sexual abuse of children because it whets the appetite of pedophiles. The third interest is that such images are morally and aesthetically repugnant....
"The language of the statute questioned here can criminalize the use of fictional images that involve no human being, whether that fictional person is over the statutory age and looks younger, or indeed, a fictional person under the prohibited age. Images that are, or can be, entirely the product of the mind are criminalized. The CPPA's definition of child pornography extends to drawings or images that 'appear' to be minors or visual depictions that 'convey' the impression that a minor is engaging in sexually explicit conduct, whether an actual minor is involved or not. The constitutionality of this definition is not supported by existing case law."
The intent throughout the Court of Appeals opinion is to distinguish between actual harm to persons and the attempt to outlaw putatively protected ideas by a back-door "secondary effects" method, whose basis is that any depiction of a minor engaging in sexual activity, whether an actual minor of a simulated one, harms children generally by inflaming pedophiles, who may also use the images to seduce real children.
"[A]ny victimization of children that may arise from pedophiles' sexual responses to pornography apparently depicting children engaging in explicit sexual activity is not a sufficiently compelling justification for CPPA's speech restrictions," the court stated. "This is so because to hold otherwise enables the criminalization of foul figments of creative technology that do not involve any human victim in their creation or in their presentation.
"The critical ingredient of our analysis is the relationship between the dissemination of fabricated images of child pornography and additional acts of sexual abuse. Factual studies that establish the link between computer-generated child pornography and the subsequent sexual abuse of children apparently do not yet exist...
"Thus, while such images are unquestionably morally repugnant, they do not involve real children nor is there a demonstrated basis to link computer-generated images with harm to real children. Absent this nexus, the law does not withstand constitutional scrutiny.
"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. Our determination is not to suggest that anyone condones the implicit or explicit harmful secondary effects of child pornography. Rather it is a determination to measure the statute by First Amendment standards articulated by the Supreme Court. To accept the secondary effects argument as the gauge against which the statute must be measured requires a remarkable shift in the First Amendment paradigm. Such a transformation, how speech impacts the listener or viewer, would turn First Amendment jurisprudence on its head."
However, the Court of Appeals went even further, considering the challenged language of the statute in terms of its practical application - and found that language legally wanting.
"It is impermissible to define a criminal offense so vaguely that an ordinary person is left guessing about what is prohibited and what is not," the court said. "Such is the case with the statutory language prohibiting material that 'appears to be' or that 'conveys the impression.'... It does not 'give the person of ordinary intelligence a reasonable opportunity to know what is prohibited,' and it fails to provide explicit standards for those who must apply it, 'with the attendant dangers of arbitrary and discriminatory application.'... The phrases provide no measure to guide an ordinarily intelligent person about prohibited conduct and any such person could not be reasonably certain about whose perspective defines the appearance of a minor, or whose impression that a minor is involved leads to criminal prosecution.
"In the same light, the absence of definitions for these key phrases in the CPPA allows law enforcement officials to exercise their discretion, subjectively, about what 'appears to be' or what 'conveys the impression' of prohibited material. Thus, the vagueness of the statute's key phrases regarding computer images permits enforcement in an arbitrary and discriminatory fashion."
"They [the Court] sort of reserved for another day, under another factual pattern, the question about the shifting of the burden on the affirmative defense; you know, who's got the burden about proving the minority [of the performers in the material]," Sirkin noted. "But the area that we were most concerned about, the 'appears to be' and the 'conveying the message' was clearly the principal reason for the lawsuit, and since they've severed that from the rest of the statute and upheld the rest of it or majors portions of it, our clients in the adult industry have no problem with that.
"I'm certain that the government will ask for an en banc [review by the entire Ninth Circuit Court of Appeals], and if they don't get it or they do get it, regardless of the outcome, I think ultimately the issue will get to the Supreme Court," Sirkin predicted. "I hope that our case is the one that gets there and that they take; not one of those criminal convictions, because if those are the cases that go, those deal with real hard [criminal] facts. Ours really deals with very specific language and a particular attack. We were very narrow with it, and presented it exactly the way we wanted to do it."
