Three years ago, Free Speech Coalition sued and won to get portions of the 1996 Child Pornography Prevention Act struck down on grounds that the government should have to prove real children were used in child porn images. Now, some prosecutors in New Hampshire say that ruling is already costing money and manpower.
And Hillsborough County Attorney Marguerite Wageling told reporters that some child porn cases would be dropped in the Granite State because of that ruling. But FSC executive director Michelle Freridge said that kind of remark has only one problem: the FSC decision had examined and removed overbroad language.
"The overbroad language had to be taken out and new legislation had to be created," she told AVNOnline.com. "Our case made the overbroad language inapplicable, but it is the responsibility of the government to make new legislation that isn't overbroad.
"What's really going on is that good legislation hasn't been passed and put in place yet, or their case isn't strong enough to be met under current law, and so they're using us as a scapegoat or excuse for why they have failed to prosecute particular cases," Freridge continued. "Or, it may be possible that what they're trying to prosecute isn't child porn now but would be if the overbroad language was still in place."
Brandon Shalton, former ASACP chief technology officer who now provides technological support, said that could be "an issue . . . but not a showstopper" for law enforcement. He also said you could find 10,000 alleged child porn images on a computer hard disk but it only takes "one to a small handful" of verifiable child porn images out of the lot to obtain a conviction "show[ing] an identifiable child with a mountain of unknown but clearly child-porn-related images."
"Pictures of children like 15-to-17-years old are the ones they don't always go after because of a 'gray area,'" he continued, referring to images showing very youthful-looking adults, "but looking 13-to-14-years old and under is pretty distinct."
Free Speech Coalition argued successfully in the 2002 U.S. Supreme Court case that digitally created depictions of children engaging in sexual activity – a technique also known as "digital morphing" – was unconstitutional.
"Because of that decision," Shalton said, "law enforcement at the state and federal level are very displeased with FSC. I believe FSC's issue was the ‘thought crime’ kind of thing; that how could law enforcement put someone in jail who created or possessed digitally created artwork of children in bad depictions? The other side sees it as digital imaging has gotten so sophisticated, with [three-dimensional] models and so forth, that realistic-looking depictions could be created, but since a child was not harmed in the making of such a creation, FSC argued that a person couldn't or shouldn't be put in jail, just because they were looking at or seeing the digital image."
