Less than a month after the Supreme Court overturned Washington's attempt to ban virtual-child pornography," lawmakers are racing to pass new legislation that they hope will survive judicial review and move existing child-porn laws more deeply into the Internet Age.
The proposed legislation, written by the Department of Justice, is on a fast track, since lawmakers believe children may be harmed in the absence of a new law. And, redrafting the laws, a hot topic among conservative groups, is a priority of the Republican leadership.
The fact that Congress is still grappling with the issue shows how difficult it is to come up with the right language that balances censorship with the protection of children. Since 1977, Congress has attempted to write anti-child porn laws 13 times, but several have been declared either unconstitutional or partly unconstitutional including the most recent bill from 1996.
In its latest effort, Congress is trying to answer some of the Supreme Court's concerns that legitimate movies such as "Traffic" or plays such as "Romeo and Juliet" might be banned because they involve underage sex. The lawmakers' solution is to narrow the issue of virtual-child porn, or morphed images. Under proposed rules that have cleared the House subcommittee on crime, such computer-generated images, if they are "nearly indistinguishable" from images of actual children would be illegal.
But, lawmakers, worried that their effort might be declared unconstitutional yet again, are making possession of sexual materials involving pre-pubescent children a violation of the obscenity law.
"It assures prosecution, even if the child is not known, real or virtual," says Rep. Mark Foley (R.) of Florida, one of the original co-sponsors of the bill, known as the Child Obscenity and Pornography Prevention Act of 2002. "Congress does not believe pedophiles have First Amendment rights," says the Congressman.
However, the new rules are likely to be challenged in court. "It will be struck down as unconstitutional. No court can say that the Supreme Court did not mean what it said, and significant attorneys fees will be awarded," says Jeffrey Douglas, president of the First Amendment Lawyers Association, a national organization based in Chicago.
Even some supporters of the proposed legislation admit it may be open to challenge. Almost no hearings were held or constitutional experts called to suggest ways to write the new legislation. Instead, the new draft came directly from the Department of Justice. "The law was crafted very quickly, there was not a lot of input from many different sources," says Rep. Nick Lampson (D) of Texas, a supporter of the bill.
Instead of passing new flawed legislation, Mr. Douglas says officials should simply prosecute offenders under existing laws. For example, the possession photos of children engaged in sexual acts could be tried under current obscenity statutes.
"Juries would be fighting for the opportunity to convict," says Douglas.
The legal landscape changed in December of 1999, when the Ninth Circuit Court of Appeals ruled that Congress had gone too far when it banned "morphed" or "virtual" images of children. Then, last month, the Supreme Court, in an important First Amendment case, said that digital images of children involved in sex must be afforded a higher level of constitutional protection than images of real children.
Now, almost every prosecution is faced with the challenge of identifying the actual children. That difficulty has resulted in some prosecutions being dropped or plea-bargained to lesser charges.
In its only hearings on the legislation on May 2 and 3, Congress heard testimony about how easy it is to manipulate images on a computer. The National Center for Missing and Abused Children showed the lawmakers how easy it is to turn a Brazilian girl into a Scandinavian girl.
"It's only a matter of time until the adult-entertainment industry is producing for that market," says Reuben Rodriguez of the center. However, the legal adult-entertainment business maintains it opposes child pornography.