April 20, 2002
Column #1077

Supreme Court Approves Virtual Child Pornography

     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 so confused? 

     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 pornography?

     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 real photographs."

     That would exclude "Traffic" or "American Beauty," which depicted underage girls with briefly exposed breasts. 

     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 activity."

     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.