Throwing Out the Baby With the Bathwater: Is It Child Pornography If There Is No Child?

Question: "What if ten years from now, I want to create something, and I'm not a child pornographer, I'm not a Webmaster, I'm not even into porn, but I want to create some visual depiction of a [sexual] fantasy or some other scenario that I've imagined, and I completely create children. According to this law, I have no defense, because I can't prove that it's an adult, I can't prove that it's a child, I can't prove anything."

Answer: "Then I don't think there should be a defense. In my judgment, the statute prohibits that. It prohibits people from knowingly creating images that they know or hold out to others to be real pictures of children, and I don't think people have a First Amendment right to create synthetic or authentically realistic child porn, even if it's by a computer."


Finally, the fate of the Child Pornography Prevention Act of 1996 (CPPA) - which essentially outlaws childless child porn - will be decided this October. In hearing Ashcroft v. Free Speech Coalition (00-795), the Supreme Court will consider the merits of a case it was fated to hear long before the legislation was even hatched.

But in so many other ways, this law's creation anticipated its own destiny: Being hidden like an illegitimate child among the copious pages of an omnibus bill by the mother hen of the Senate, Orrin Hatch. Being voted into existence without so much as a minute's debate in either chamber floor. Then becoming law despite the "significant constitutional concerns" of several members of the Senate Judiciary Committee, a number of whom still voted to "favorably report" S. 1237, albeit out of the other side of their mouths. (They were right to be concerned, even as they were counting on substantive debate to do their work for them, and even after they had hedged their bets by attaching a severability clause that would protect the bill's integrity should any sections be held unconstitutional. Prescient indeed. The very title guaranteed passage.)

In the intervening years, as Clinton's cradle-robbing embezzled headlines, the CPPA toured the nation's circuit courts like a forensic rap group, with three Courts of Appeal affirming its validity and one partially invalidating it. It's that last ruling in 1999 by the Ninth Circuit that the Supreme Court will now evaluate, and that court's partial invalidation only that it will weigh; specifically, the constitutionality of two deceptively innocent phrases - "appears to be" and "conveys the impression," which, depending on your hyperbolic perspective, will imperil any future prosecutions of child pornographers by being removed, or will imperil the First Amendment if they are kept. Either way you look at it, it's a rather gloomy doomsday scenario.

On its face, though, there is something almost nebulous about the CPPA, something inherently confusing about its intentions, in that it proposes to fix a problem that doesn't exist yet even as it further addresses a horrible crime that does. Similarly, its supporters (hereafter Petitioners) have constructed their arguments on the experience of criminal justice professionals even as they attempt to get a prosecutorial head-start on technology that hasn't been developed yet, and that they can't guarantee ever will. That places the entire argument in a sort of time warp, where the justices will have to decide whether to allow a law that punishes people for assaults they haven't yet committed because of technologies that don't exist.

Based on that slant, one could easily understand if their opponents (heretofore Respondents) were feeling a tad confident. Unfortunately, their arguments are also partly hobbled, due mostly to a reliance on slippery slopes and worst case scenarios and a not-so-subtle appeal to the conspiracy theorist within. It's also a time-driven argument, in which, by accepting the new methods (childless child porn) even as they denounce the ancient crime (child porn), they are forced to depend on intricate legal distinctions in order to trounce their opponents' moral absolutes and apocalyptic terminology. Their conviction that the Court will not contradict previous rulings is also tempered by an awareness born of experience that all Supreme Court opinions - especially from this "activist" Court - are anything but predictable.

As far as competing rhetoric goes, the Petitioners probably have an advantage over the First Amendment guardians. People react faster to "child porn" than to "fire" in a crowded theater, recent months have seen several arrests and convictions of big-time child pornographers, and the Court has long since stripped real child porn, whether "obscene" or not, of any First Amendment protection. In asking the Court to further restrict protected speech, the Petitioners battle-cry has momentum; there is no difference (especially to a solicited child) between the real and the not real, or, as the senators called it, the "virtually indistinguishable." It speaks to our robotic fear of robots. The Respondents' warnings elicit a yawn in comparison. Free speech? Free speech is killing the Internet.

The Crime

The crime on the table, of course, is child pornography, which used to have the clear definition of pornography made using actual children. No longer. The CPPA, usually referred to as the "morphing" or "virtual" child porn law, has expanded the definition of child pornography to include "appears to be" and "conveys the impression," and so criminalizes materials that previously were not illegal to either produce or possess, including wholly computer-generated images. (There is virulent disagreement between the parties about exactly what material is, or could be, included in the updated definitions. Petitioners claim a very narrow breadth of material; Respondents a far broader one.) It is this category of creation, generated from the imagination and using no actual person, which leads people to call these prohibitions "thought crimes."

Further, the law would solidify the government's compelling interest for outlawing such material, however it is finally explicitly defined, which they claim is often used by child molesters to induce and seduce their young prey into sexual acquiescence. Unfortunately, there are very few studies or comprehensive statistics that support that claim, even though no one disputes the fact that it does occur. The Respondents position is that one cannot proscribe an entire category of protected speech because of what might happen. Petitioners claim the speech is not protected. The arguments tend to chase one another around like a cat chasing its tail.

There are other problems with the statute that were elaborated in the Judiciary Committee's Senate Report. Senators Edward M. Kennedy (D-Mass.), Paul Simon (D-Ill.), and Russ Feingold (D-Wis.) had strong reservations about the mandatory minimum sentencing provisions it contained, and Senator Joseph Biden (D-Del.) expressed concern that the bill's affirmative defense provision unfairly shifted the burden of proof from the prosecution to the defense, effectively depriving a defendant of due process as granted under the Fourth Amendment. But those perceived flaws were not addressed by the Fourth Circuit, and so will not be in this case either. Needless to say, the two sides differ on those issues as well.

But, as in virtually all aspects of this ugly subject, the supporters of the CPPA and its opponents almost unanimously agree to not so respectfully disagree. The subtext (not always subtextual) is often palpable disdain mixed with grudging respect. In many ways, this case is just one more running gun battle in an ongoing war between opponents who know one another's arguments and tactics intimately. Very few, if any, surprises are in store for either the Court or the participants, for all compromises have long since been proffered and rejected, and each side is now standing firm in the conviction that their side is not only right, but righteously right.

The Act

According to an amicus brief filed by the National Law Center in support of the Petitioners, "The Child Pornography Prevention Act of 1996 (CPPA), prohibits... the shipment, distribution, receipt, reproduction, sale, or possession of any visual depiction that 'appears to be... of a minor engaging in sexually explicit conduct.' 18 U.S.C. 2252A, 2256 (8)(B)(Supp. V 1999). It also contains a similar prohibition concerning any visual depiction that is 'advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.' 18 U.S.C. 2252A, 2256(8)(D)(Suppl. V 1999). The question presented is whether those prohibitions violate the First Amendment to the Constitution." (bold italics added)

The following salient definitions and procedures are found in the federal government's criminal code, at Title 18 - Crimes and Criminal Procedure:

Sec. 2256. Definitions for chapter

For the purposes of this chapter, the term -

(1) "minor" means any person under the age of eighteen years;

(2) "sexually explicit conduct" means actual or simulated -

(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(B) bestiality;

(C) masturbation;

(D) sadistic or masochistic abuse; or

(E) lascivious exhibition of the genitals or pubic area of any person;

(3) "producing" means producing, directing, manufacturing, issuing, publishing, or advertising;

(4) "organization" means a person other than an individual;

(5) "visual depiction" includes undeveloped film and videotape, and data stored on computer disk or by electronic means which is capable of conversion into a visual image;

(6) "computer" has the meaning given that term in section 1030 of this title;

(7) "custody or control" includes temporary supervision over or responsibility for a minor whether legally or illegally obtained;

(8) "child pornography" means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where -

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

(B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct;

(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or

(D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct; and

(9) "identifiable minor" -

(A) means a person -

(I) who was a minor at the time the visual depiction was created, adapted, or modified; or

(II) whose image as a minor was used in creating, adapting, or modifying the visual depiction; and

(III) who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and

(B) shall not be construed to require proof of the actual identity of the identifiable minor. (bold italics added)

The History

The Supreme Court would not be hearing this case in the first place were it not for the lineal precedents that lay the groundwork for what George Will calls "the cumulative logic of past rulings." Despite the unequivocal appearance that many of these opinions have, however, the judicial plates move very slowly, and while each ruling represents a legal footfall in the soft earth, the cautiously deliberative nature of the Court makes it tiptoe more often than stomp.

Federal statutes as well are often enacted in lockstep with these Court rulings - before or after, either correcting or reacting - bouncing limitations, definitions, and clarifications off one another in an escalating game of federal dodge ball.

Before 1977, the only laws pertaining to child pornography were local or state laws, which the Supreme Court would rule on from time to time. That year, however, Congress passed the Protection of Children Against Sexual Exploitation Act of 1977, which prohibited the use of a minor, at that time 16 years of age or younger, to engage in sexually explicit conduct for the purpose of producing any visual or print material. A limitation was that it had to satisfy the definition of obscenity as set forth in Miller v. California.

New York State, however, was more aggressive in its stance and enacted a statute prohibiting the production and distribution of nonobscene child pornography. That led to New York v. Ferber, where the Supreme Court held that nonobscene visual depictions of children engaging in sexual conduct had no First Amendment protection because the state had a compelling interest in protecting children from harm caused by the use of children in the creation of pornography.

Ferber gave birth to The Child Protection Act of 1984, which disposed of the requirement that child porn be obscene to be illegal to produce, disseminate, or receive; raised the age of consent to 18; and discarded the requirement that material produced or distributed be for commercial sale only. It also changed "visual print medium" to "visual depiction" and substituted the word "lascivious" for "lewd" in the definition of sexually explicit conduct. One end result of these changes, especially after further clarification in United States v. Dost and United States v. Knox, was that the statute did not require full or partial nudity but rather required only that the material depict some sexually explicit conduct by the minor that appealed to the lascivious interest of the intended audience.

In 1986, the Child Abuse and Pornography Act banned the production and use of advertisements for child pornography, and in 1988, the Child Protection and Obscenity Enforcement Act made it unlawful to use a computer to transport, distribute, or receive child pornography. The latter act also imposed requirements on the producers of certain sexually explicit material to ascertain and record each performer's name and date of birth, what we now refer to as the 2257 requirement.

Up until this time, possession of child pornography was not illegal under federal law, pursuant to a decision in Stanley v. Georgia (1969), which said that the government could prohibit the sale and distribution of obscene material, but could not prohibit its possession because it violated the First Amendment's guarantee of "free thought and expression" and the Fourth Amendment's guarantee of privacy rights.

That changed in 1990, in the wake of new state laws banning possession of child porn, during challenges to the Court brought under Stanley, when, in Osborne v. Ohio, the Court held that the state's compelling interest in preventing the sexual abuse of children justified a limitation on the right to possess and view obscene materials in the privacy of one's own home under the First Amendment as set forth in Stanley. The rationale there was that the state could prohibit the mere possession of child pornography as long as its goal was to protect children and not regulate people's thoughts and expressions. ("Ohio does not rely on a paternalistic interest in regulating Osborne's mind..!") The Child Protection Restoration and Penalties Act of 1990 followed in the wake of that decision, criminalizing the possession of three or more pieces of child pornography.

Which brings us to the statute in question, the CPPA, and its ideological kissing cousin, the Communications Decency Act of 1996, whose "indecent-transmission" and "patently-offensive-display" provisions were late found to violate the First Amendment's right to free speech.

There have been three more federal acts passed since then that relate to child pornography - the Child Online Protection Act of 1998 (COPA), the Protection of Children from Sexual Predators Act of 1998, and the Children's Internet Protection Act of 2000 - none of the provisions of which have ameliorated the need for the current review. CPPA has in fact been challenged, with a preliminary injunction in effect against enforcement until the case can be decided on its merits.

But, as mentioned above, several cases have challenged the CPPA on constitutional grounds since its enactment, United States v. Hilton (1st Circuit Court of Appeals, 1999), United States v. Acheson (11th Circuit, 1999), Free Speech Coalition v. Reno (9th Circuit, 1999), United States v. Mento (4th Circuit, 2000), and United States v. Pearl (U.S. District Court for the District of Utah, 2000). All but the Ninth Circuit upheld the constitutionality of its provisions.

The Arguments

The Respondents brief reads, "The Ninth Circuit Court of Appeals found two provisions of the Child Pornography Prevention Act of 1996 unconstitutional because they impose an unjustifiable restriction on free speech and are unduly vague and overbroad... The question presented in this case is whether, under the First Amendment, sexually explicit, non-obscene material containing no children can be banned by Congress as "child pornography" simply because the material is perceived by someone as depicting a person who 'appears to be' a minor or because the material is promoted in a manner that someone believes 'conveys the impression' that minors are depicted."

Why would anyone be against outlawing any child pornography, even if no actual children are in it? Who in their right mind would want a future in which there are hundreds or thousands of Websites where you can pay to see cyber-kids engaging in sex with one another or with cyber-adults, or real adults? Which one of us is going to stand up and say that they see nothing wrong with that?

On the other hand, how could anybody outlaw any depiction of anything that doesn't actually harm a person in the making? It may be vile, but isn't the only activity going on occurring in the brain? Isn't it literally policing and criminalizing the contents of one's thoughts? And if you can put a person in prison for making visual rendering of squalid thoughts, where might that lead?

Defining Terms

One area of contention, where the Respondents will focus their main energies, is the definition of child porn, to which every other argument inexorably returns. The reason it's so important is that if virtual child porn isn't real child porn, then it is speech protected by the First Amendment. And if it is real child porn, then it's not protected. The issue speaks directly to whether the questionable provisions make the statute unconstitutionally overbroad.

The Respondents insist that child porn must contain an actual child, that both Ferber and Osborne explicitly support that definition, and because they do, it is protected speech. Ferber does say that "...if it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized. Simulation outside of the prohibition could provide another alternative."

"If it's not real, it's not child porn," says H. Louis Sirkin, who will be arguing on behalf of the Free Speech Coalition. We wondered if Osborne didn't threaten that argument by permitting the state to "penaliz[e] those who view and possess the offending materials" based on the affect the material would have on them. In other words, if the Court had already conceded that there were compelling reasons other than the use of actual children to criminalize, couldn't they just tack on material that they believed would have the same effect?

"No," says Sirkin. "Osborne really in my opinion was a Fourth Amendment case, which just held that possession of kiddie porn shouldn't fall under Stanley, and that you don't have the privacy expectation. Stanley really was about that your home is your castle, including your thoughts and your fantasies. But Osborne really doesn't disagree with Ferber, because what it really says is that kiddie porn is not protected and it's not protected even if you possess it in your home, and in Osborne it's real kiddie porn. We go back to the definition of child porn. If it ain't real, it ain't child porn. The state also has a compelling interest that children not learn about murder, so that they not participate in murder, but you can't call somebody a murderer when nobody's dead."

The Petitioners, needless to say, couldn't agree less. They say the CPPA's definition, which includes childless child porn, should be upheld by this Court, as it was in the Appeals courts, because the compelling interest of the state is the same whether there is a child present or not.

"Child porn isn't just a crime scene photo of some kid's molestation," says Bruce Taylor of the National Law Center for Children and Families. "It is now a crime tool of tomorrow's abuse. To me, that's why you can criminalize the creation and possession of child porn."

In response to the Respondents' claim that Ferber only recognizes child porn that includes real children, Taylor asserts that, in fact, "the Court reemphasized that governments are entitled to protect public order and safety and noted the test for determining that materials fall outside First Amendment protection when 'the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake.' With the advent of new technologies that did not exist when the Court decided Ferber, the Government was and is faced with an overwhelming evil that threatens the safety of children."

The Threat

So what exactly is the dire threat to children, beyond being used to make the stuff? Basically, that child porn, whether real or virtual, presents the same real threats to real children because it is used by pedophiles to whet their sexual appetites and to seduce minors.

The Respondents do not believe that there are any studies to support that conclusion, saying, "Factual studies linking computer-generated materials depicting no identifiable children to the sexual abuse of children do not exist." But even if they did exist, they assert, the two provisions "would still be unconstitutional because they are narrowly tailored to confront these types of harm... Both provisions ban constitutionally protected speech based on the theory that the message conveyed in such an expression may affect the thoughts and feelings of child molesters and children. Such a basis for suppressing speech has been soundly and repeatedly rejected by this Court."

They add that "there are no findings that sexually explicit material of actual or identifiable children has ever been used to trade for child pornography depicting children." That addition is there because of the government's assertion that another compelling reason to ban computer-generated images is that pedophiles will flood the market with virtual images and thus fuel the making of more real child porn, putting children at risk.

Simply Unconvictable

Also, but to a lesser degree, the Petitioners' claim that if the two provisions are struck, it will make it harder, if not impossible, for the government to convict any child pornographers at all, because it filled "gaps" in the old statute that child pornographers had already tried to exploit.

"The answer to that," responds Sirkin, "is that the government has gotten convictions in every case where that defense was raised. Besides, the whole system of government isn't to make prosecutions easy. If you wanted to do that, then we should get rid of the Bill of Rights, then you'll get convictions with every case.

"Plainly, defendants in child pornography cases cannot be required to prove the government's case. If the government makes the allegation that a child was depicted in sexually explicit conduct, it is the government that must prove that the 'child' was in fact a 'child'."

Affirmative Defense

As a "cure" to the overbreadth charge, Petitioners point to the affirmative defense that is included, like batteries, in the law. It reads:

"It shall be an affirmative defense to a charge of violating paragraphs (1), (2), (3), or (4) of subsection (a) that-

"(1) the alleged child pornography was produced using an actual person or persons engaging in sexually explicit conduct;

"(2) each such person was an adult at the time the material was produced; and

"(3) 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..."(bold italics added)

As mentioned above, Senator Biden had Fourth Amendment doubts about it, something Sirkin was well aware of. "We raised that in appeal. The Ninth Circuit specifically said, we're not answering that question because we don't have to. We have found these words to be no good. I do agree with Senator Biden and we do raise that in our briefs when we talk about the overbreath, that it could ban that which is really protected."

But, he adds, it is has other failings as well. "The defense here is that you can defend yourself by proving that it was someone over the age of 18, as long as it's not advertised or marketed with the impression that a minor's involved. If it's not a real child, you have no defense. You can't prove the existence of something that doesn't exist."


Another huge bone of contention is the belief by the Respondents that "the CPPA does much more than simply ban 'virtual child pornography' that is indistinguishable from depictions of actual children." Instead, they claim, "Congress chose to ban all materials, however produced, which depict persons or nonpersons who appear to be minors or which convey the impression that a minor is depicted engaging in sexual conduct. As a result... drawings, cartoons, sculptures, and paintings involving depictions of minors, adults, and nonpersons who appear to be minors or who are promoted in such a way as to convey the impression that minors are depicted engaging in sexual conduct are all criminalized by the CPPA."

Nonsense, says the other side. They say that the intent of the drafters of the legislation was that only visual images that are "'virtually indistinguishable' to the unsuspecting viewer from unretouched photographic images of actual children engaging in sexually explicit conduct" would be proscribed. That phrase, virtually indistinguishable, though not in the Act itself, can be found in the Senate Committee's statutory notes. They are there as a guide, says Taylor.

"A lot of things aren't in the Act that you have to explain," he said. "You use plain words in a bill, and if they are not as clear as some people think they should be, that's one of the reasons that you look to a Committee for legislative intent, to clarify the meaning of statutory language."

But does it help their argument that the CPPA is not vaguely worded if you have to go back to the Senate Report to clarify such an important point? "It's true," says Taylor, "it would be nice if everything you need to solve everybody's problems is in the bill, but that's just not the way the legislative process works. And there is a rule of law that says that the court should look at the legislative history to clear up ambiguities or arguments about the differences in meaning."

Senate Report

But if that's so, what about other parts of the Senate Report that illuminate Congress' underlying intent regarding the CPPA? For instance, their finding that, while sexually explicit portrayals of fictional characters might "deeply offend modern sensibilities regarding the rearing and protection of children," they are not "child pornography" in the specific legal and clinical sense that the term has acquired over the past 15 years.

Or this. "... the Supreme Court has repeatedly held, in a number of different areas, that expression may not be regulated solely for its effect upon others."

But square those comments with this one from the very same report. "The sexualization and eroticization of minors through any form of pornographic images has a deleterious effect on all children by encouraging a societal perception of children as sexual objects... This sexualization of minors creates an unwholesome environment which affects the psychological, mental, and emotional development of children and undermines the efforts of parents and families to encourage the sound mental, moral, and emotional development of children."

From these excerpts, then, could anyone clearly divine a singular intent from this Congressional Report? But beyond that, could anyone honestly believe that intent was limited to just the harm done to minors by being utilized in the making of child pornography or by being seduced through exposure to child pornography? How could anyone say that the above italicized phrase does not extend Congress' intent, such as it was, far beyond the Petitioners' narrow claim of "virtually indistinguishable" material.

Virtually Indistinguishable

Another topic that elicited conflicting opinion is the actual capability of computer-generated technology to create lifelike nonpersons. Just two examples should illustrate just how technically clueless the government is, how easy it is to scare them, and how urgently they want to convey the impression that the future is now. In fact, each amicus brief submitted in support of the Petitioners claimed a different level of computer-generated imaging achievement.

From the CPPA Senate Report: "Congress finds that... new photographic and computer imaging technology make it possible to produce by electronic, mechanical, or other means, visual depictions of what appear to be children engaging in sexually explicit conduct that are virtually indistinguishable to the unsuspecting viewer..." (1996)

From a report written by the American Bar Association for the National Center for Missing and Exploited Children entitled, Child Pornography: The Criminal Justice System Response: "The [computer-generated] technology has become sophisticated enough that in the future "virtual" child pornography could conceivably become indistinguishable from 'real' child pornography." (2001) (italics added)

The span of time between the two quotes illustrates anything but technical advancement.

The Slope

Bruce Taylor know