by David L. Hudson Jr., First Amendment Scholar
Last updated: September 18, 2017
In 1996, Congress changed course in its efforts to combat child pornography when it passed a law that targeted so-called virtual child pornography — or computer-generated images of children engaging in explicit sexual conduct. In the past, laws had focused on the use of actual children in making, producing and distributing child pornography.
But Congress adopted the Child Pornography Prevention Act of 1996 — CPPA — to address concerns about advances in computer technology that make it more difficult for prosecutors to determine whether certain images are of an actual child or simply realistic images of fictional children. Congress heard testimony regarding “morphing” — where pornographers would download photographs of children from magazines and then transform them into sexual pictures.
CPPA defined child pornography as: “Any visual depiction, including any photography, film, video, picture or computer-generated image or picture … of sexually explicit conduct, where — (A) the production of such visual depiction is, or, appears to be, of a minor engaging in sexually explicit conduct; (B) such visual depiction is, or, appears to be, of a minor engaging in sexually explicit conduct; (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or (D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaged in sexually explicit conduct.” — 18 U.S.C. Section 2256(8)
The Free Speech Coalition and others challenged the law in federal court in 1997. They challenged only the two subsections containing the “appears to be” and “conveys the impression” clauses. The plaintiffs questioned those provisions because they allow people to be punished even if no actual children were involved in the creation, production or distribution of the material.
For instance, the law would theoretically punish producers of a movie that had a youthful-looking adult movie actor playing a child in a sex scene. Furthermore, the law would impose penalties on material that simply “conveyed the impression” through advertising that the material contained a minor engaged in sexually explicit conduct.
A federal district court upheld the law as a constitutional way to address the harms associated with virtual child pornography. A divided three-judge panel of the 9th U.S. Circuit Court of Appeals reversed that ruling, in Free Speech Coalition v. Reno, writing that “censorship through the enactment of criminal laws intended to control an evil idea cannot satisfy the constitutional requirements of the First Amendment.”
Meanwhile, several other federal appeals courts upheld the constitutionality of CPPA in criminal cases. The government appealed the case to the U.S. Supreme Court. The Court took the case presumably to resolve the split in the circuits over whether the law was constitutional.
Ashcroft v. Free Speech Coalition
On April 16, 2002, the Supreme Court struck down both provisions at issue in href=”http://www.firstamendmentcenter.org/faclibrary/case.aspx?id=808″>Ashcroft v. Free Speech Coalition. The high court wrote that the challenged CPPA provisions prohibited material that was not obscenity or traditional child pornography under the Court’s 1982 decision href=”http://www.firstamendmentcenter.org/faclibrary/case.aspx?id=1543″>New York v. Ferber. In Ferber, the high court defined child pornography as expression that involved the actual sexual abuse of children in its creation.
“In contrast to the speech in Ferber, speech that itself is the record of sexual abuse, the CPPA prohibits speech that records no crime and creates no victims by its production,” Justice Anthony Kennedy wrote for the majority. The high court noted that the language of the statute was simply too broad and would prohibit too much constitutionally protected expression, citing as possible examples the award-winning movies “Traffic” and “American Beauty.”
“There is no attempt, incitement, solicitation or conspiracy,” Kennedy wrote. “The Government has shown no more than a remote connection between speech that might encourage thoughts or impulses and any resulting child abuse. Without a significantly stronger, more direct connection, the Government may not prohibit speech on the ground that it may encourage pedophiles to engage in illegal conduct.”
A question that arose after Free Speech Coalition was whether the government had to prove by expert testimony that pornographic images involved actual children as opposed to virtual images.
Most circuits have not required the government to put forth such expert proof. For example, the 10th Circuit stated in U.S. v. Kimler (2003):
“We conclude that Free Speech Coalition, did not establish a broad, categorical requirement that, in every case on the subject, absent direct evidence of identity, an expert must testify that the unlawful image is of a real child. Juries are still capable of distinguishing between real and virtual images; and admissibility remains within the province of the sound discretion of the trial judge.”
However, in light of Free Speech Coalition, another federal appeals court disagreed and granted unspecified post-conviction “relief” to defendant David Hilton, who was convicted under the virtual child porn prohibition. In United States v. Hilton (2004), the 1st Circuit said that, in light of the Free Speech Coalition decision, the onus was on the government to prove that images used to convict a defendant were images of actual children, not virtual child pornography.
“That the children in the images are real amounts to an element of the crime which the government must prove, the burden of which should not be displaced to the defendant as an affirmative defense,” the appeals court panel wrote. (The panel withdrew its earlier opinion in Hilton that had required expert testimony to prove the children were real.)
Congress’ response: PROTECT Act
Congress responded to the Supreme Court’s Free Speech Coalition ruling by passing a new law called the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 — better known as the PROTECT Act.
One section of the PROTECT Act introduced a new provision designed to replace one of the CPPA sections invalidated in Free Speech Coalition. That section had prohibited “such visual depiction (that) is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaged in sexually explicit conduct.”
The act provides in part that anyone who knowingly “advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains (i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a visual depiction of an actual minor engaging in sexually explicit conduct … shall be punished.”
The U.S. Supreme Court upheld this new “pandering” provision in United States v. Williams (2008), which involved the prosecution of a man who told an undercover Secret Service agent that he had sexually explicit pictures of his own daughter.
It turned out that those pictures were not of his daughter but of other children. An ensuing search of the defendant Williams’ home and computer revealed much real child pornography. Prosecutors charged him with possession of child pornography and with pandering under the PROTECT Act. Williams pleaded guilty but reserved the right to challenge the constitutionality of the pandering provision.
A federal district court rejected his challenge, but the 11th U.S. Circuit Court of Appeals reversed that ruling in United States v. Williams (2006). The 11th Circuit found “particularly objectionable the criminalization of speech that ‘reflects the belief’ that materials constitute obscene synthetic or ‘real’ child pornography.”
In explaining its objection, the appeals court noted: “Because no regard is given to the actual nature or even the existence of the underlying material, liability can be established based purely on promotional speech reflecting the deluded belief that real children are depicted in legal child erotica, or on promotional or solicitous speech reflecting that an individual finds certain depictions of children lascivious.”
Further appeal led to the Supreme Court’s reversing the 11th Circuit and upholding the PROTECT Act provision in United States v. Williams. Writing for the majority, Justice Antonin Scalia said that “offers to provide or requests to obtain child pornography are categorically excluded from First Amendment protection.”
Scalia appeared unconcerned that the provision could apply to people who claimed they had child pornography when in reality they did not. “Offers to deal in illegal products or otherwise engage in illegal activity do not acquire First Amendment protection when the offeror is mistaken about the factual predicate of his offer. … There is no First Amendment exception from the general principle of criminal law that a person attempting to commit a crime need not be exonerated because he has a mistaken view of the facts,” Scalia wrote.
In his dissent, Justice David Souter identified a “tension” between the majority’s decision in Williams and the Court’s decision in Free Speech Coalition, which prohibited the criminalization of pure virtual child pornography that did not involve actual minors.
“If the Act can be enforced, it will function just as it was meant to do, by merging the whole subject of child pornography into the offense of proposing a transaction, dispensing with the real-child element in the underlying subject,” Souter wrote.
Another section of the PROTECT Act makes it clear that obscene child pornography in any form — including cartoons — is still unlawful and not entitled to any First Amendment protection.
The law says in part that anyone who “knowingly possesses a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that (1) (A) depicts a minor engaging in sexually explicit conduct; and (B) is obscene; or
(2) (A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and (B) lacks serious literary, artistic, political, or scientific value; or attempts or conspires to do so” shall be subject to penalties provided by law.