High court allows virtual-child pornography

Citing the distinctions between idea and deed, the court says free speech covers computer-generated imagery.

The US Supreme Court has taken its first bold steps into the world of virtual reality, overturning an attempt by Congress to ban computer-generated images of child pornography.

In an important First Amendment decision, the nation's highest court ruled yesterday that digital images of "virtual" children engaged in sexual activity must be afforded a higher level of constitutional protection than pornography involving real children.

The 6-to-3 ruling marks a major victory for free-speech advocates, who worried that the law represented the thin edge of a wedge that could be used to justify ever-broader censorship. It is a setback to those who had argued that there is no way for viewers to differentiate between real-child pornography and virtual-child pornography and that they should be attacked legally as the same evil.

Supreme Court precedent permits the government to enact an outright ban on all pornography involving real children, in large part because it victimizes the children who are its subjects. In their action today, the justices stood by that precedent and refused to expand it to include virtual depictions on a computer screen.

"The Court's First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct," Justice Anthony Kennedy writes for the majority.

In a dissent, Chief Justice William Rehnquist says that court's decision will make it harder for law-enforcement officials to protect children from child pornographers and pedophiles.

"The aim of ensuring the enforceability of our nation's child-pornography law is a compelling one," he says. "The [Child Pornography Protection Act] is targeted to this aim by extending the definition of child pornography to reach computer-generated images that are virtually indistinguishable from real children engaged in sexually explicit conduct."

In striking down two provisions of the Child Pornography Protection Act of 1996, the court found that the law was unconstitutionally overbroad, saying it sought to censor a wide universe of speech that was neither obscene nor child-pornographic.

Bill Lyon, executive director of the Free Speech Coalition, a trade association of adult businesses, supported that determination. "Our whole argument was that the law is overly broad and it was unnecessary to criminalize a visualization in which no child was sexually abused," he says. "Adults have the right to view and discuss what they want, and every time we try to make a dent and say, 'All except this,' we start to harm the Constitution."

On the other hand, pornography opponents argued that pedophiles use virtual-child pornography to lure children into illicit sexual relationships and that such potential criminal use of computerized images should strip them of any protection under the First Amendment.

The high court disagreed, declining to adopt an analysis of the case that turns primarily on either the content or the effects of virtual-child pornography. Instead, the court made clear that the ban on child pornography is justified in large part by the abuse suffered by real children.

When that abuse is not present, other legal avenues must be used to attack pornography, such as obscenity laws. "Congress may pass valid laws to protect children from abuse, and it has," writes Justice Kennedy. "The prospect of crime, however, by itself does not justify laws suppressing protected speech."

He adds that the law is so broad that it prohibits speech despite its serious literary, artistic, political, or scientific value. "The statute proscribes the visual depiction of an idea – that of teenagers engaging in sexual activity – that is a fact of modern society and has been a theme in art and literature throughout the ages," he says.

Kennedy warns the law might have a chilling effect on literary and artistic works that in some minor way involve images of teens engaged in sexual activity. He cited the motion pictures "Traffic," and "American Beauty."

In the end, the decision is likely to overturn some cases and will change the way future ones are prosecuted say anti-child porn advocates. "This case adds an additional burden on the prosecutor," says Dan Armagh, former state prosecutor who is now at the National Center for Missing and Exploited Children in Alexandria, Va. "Now, the government must prove the identity of that child."

• Ron Scherer contributed to this report from New York.

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