April 20, 2002
Supreme Court Approves Virtual Child
WASHINGTON - The Supreme Court
struck down a law banning computer simulations of child pornography for
the most tortured and disingenuous of reasons.
"William Shakespeare created the
most famous pair of teenage lovers, one of whom is just 13 years of
age," wrote Justice Anthony Kennedy for the majority. He concedes, "In
the drama, Shakespeare portrays the relationship as something splendid
and innocent, but not juvenile."
Excuse me, what has "Romeo and
Juliet" to do with child pornography? Absolutely nothing. Kennedy says
that 40 films have been made on the classic play, "some of which suggest
that the teenagers consummated their relationship."
Even a film with such a
suggestion has nothing to do with the material targeted by the Child
Pornography Prevention Act (CPPA) passed by Congress in 1996. Its aim is
to prohibit "any photograph, film, video, picture or computer or
computer-generated image or picture that is or appears to be of a minor
engaging in sexually explicit conduct."
Kennedy argues that the statute
is written so broadly that it would prohibit material with "serious
literary, artistic, political or scientific value," such as "Traffic," a
film nominated last year for an Academy Award for best picture. It
depicts a teenager who becomes so addicted to drugs that she ends up
trading sex for drugs. "American Beauty," was a similar film he cited.
However, Chief Justice William
Rehnquist correctly noted in his dissenting opinion that the law should
be construed to cover only "hard core" sexually explicit conduct. When
the case came before the First Circuit Court of Appeals, the Fourth,
Fifth, and Eleventh Circuit, they all understood the CPPA's purpose was
"intended to target only a narrow class of images - visual depictions
'which are virtually indistinguishable to unsuspecting viewers from
unretouched photographs of actual children engaging in identical sexual
conduct,'" as the First Circuit put it.
How did the Supreme Court become
Sadly, the blame must be pinned
on the position taken by Bush Administration whose lawyer incompetently
argued the case before the Court, Deputy Solicitor General Paul Clement.
When asked by one Justice, if
"Traffic" fits under the definition of the statute to be banned, Clement
lamely replied, "I believe that's true."
Wrong. It does not include hard
core pornography or a computerized version of it.
Clement was asked if someone who
rents the movie, would be committing a crime. He replied, "There's no
affirmative defense for possession." What? The millions of Americans who
rented "Traffic" have broken a federal law prohibiting child
No. What Clement should have said
was, "The legislative history of this law makes it clear that Congress
was merely extending existing prohibitions on real child pornography to
a narrow class of computer-generated pictures that could be mistaken for
That would exclude "Traffic" or
"American Beauty," which depicted underage girls with briefly exposed
The real problem could be seen
when the FBI obtained a search warrant for the home of Joseph Mento who
acknowledged possessing child pornography, and advised the agents how to
access the material on his computer. What was disgorged were more than
100 images of naked prepubescent children in sexually explicit
situations. A number depicted the children being molested sexually by
adults. One little boy was only five years old.
Mere possession of this material
has long been a crime. Why? As the Supreme Court acknowledged in
"Osborne v. Ohio," the material "permanently recorded the victim's
abuse" causing "continuing harm by haunting the children in years to
come." Moreover the state's ban of such materials encourages their
destruction, which "is also desirable because evidence suggests that
pedophiles use child pornography to seduce other children into sexual
But what if computer-generated
porn "records no crime and creates no victims in its production," as
Justice Kennedy put it? He said the First Amendment draws "vital
distinctions between words and deeds." However, if the material is
virtually identical to actual pictures of children, it will be equally
effective in seducing young children.
And worse, future pedophiles can
claim they thought they possessed computer-generated porn, not the real
thing. That's a powerful defense. No wonder Attorney General John
Ashcroft charged the court's decision will make prosecuting pornography
"immeasurably more difficult."
However, I have some tough
questions of Ashcroft. Why was the Deputy Solicitor General so
ill-informed about the law's legislative history? Why have you promoted
Drew Oosterbaan, a Clinton appointee, to direct the prosecution of
obscenity and child pornography, when obscenity was not prosecuted
during Clinton years? Why didn't you hire prosecutors from the
Reagan-Bush era who put pornographers in jail?
Why is AT&T marketing hard core
porn on cable TV? Is that acceptable?
Copyright 2002 Michael J. McManus.