FC: Surprise! Supreme Court nixes "morphed" kiddie porn ban 6-3

[Declan McCullagh <declan () well com>]

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---
        
From: George () Orwellian Org
To: "Declan McCullagh" <declan () well com>
Subject: FYI: Virtual child porn SCOTUS ruling
Date: Tue, 16 Apr 2002 10:40:37 -0400

http://www.nytimes.com/aponline/national/AP-Scotus-Child-Porn.html
April 16, 2002
        Court Strikes Down Child Porn Ban
        By THE ASSOCIATED PRESS
        Filed at 10:19 a.m. ET
        WASHINGTON (AP) -- The Supreme Court struck down
        a congressional ban on virtual child pornography Tuesday,
        ruling that the First Amendment protects pornography or
        other sexual images that only appear to depict real children
        engaged in sex.
        The 6-3 ruling is a victory for both pornographers and
        legitimate artists such as moviemakers, who argued that a
        broad ban on simulated child sex could make it a crime to
        depict a sex scene like those in the recent movies ``Traffic''
        or ``Lolita.''
        The court said language in a 1996 child pornography law
        was unconstitutionally vague and far-reaching.
        [...]

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> ---------------------------------------------------------------
>                          AN E-BULLETIN
>        LEGAL INFORMATION INSTITUTE -- CORNELL LAW SCHOOL
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> The following decisions have just arrived via the LII's
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>
> These are not the decisions themselves nor excerpts from them,
> but summaries (syllabi) prepared by the Court's Reporter of
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> ===============================================================
> ASHCROFT V. FREE SPEECH COALITION (00-795)
> Web-accessible at:
>     http://supct.law.cornell.edu/supct/html/00-795.ZS.html
>
> Argued October 30, 2001  -- Decided April 16, 2002
> Opinion author: Kennedy
>
> ===============================================================
>
> The Child Pornography Prevention Act of 1996 (CPPA) expands the
> federal prohibition on child pornography to include not only
> pornographic images made using actual children, 18 U.S.C. sect.
> 2256(8)(A), but also "any visual depiction, including 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,"
> sect.2256(8)(B), and any sexually explicit image that is
> "advertised, promoted, presented, described, or distributed in
> such a manner that conveys the impression" it depicts "a minor
> engaging in sexually explicit conduct," sect. 2256(8)(D).  Thus,
> sect. 2256(8)(B) bans a range of sexually explicit images,
> sometimes called "virtual child pornography," that appear to
> depict minors but were produced by means other than using real
> children,  such as through the use of youthful-looking adults
> or computer-imaging technology.  Section 2256(8)(D) is aimed at
> preventing the production or distribution of pornographic
> material pandered as child pornography.  Fearing that the CPPA
> threatened their activities, respondents, an
> adult-entertainment trade association and others, filed this
> suit alleging that the "appears to be" and "conveys the
> impression" provisions are overbroad and vague, chilling
> production of works protected by the First Amendment.  The
> District Court disagreed and granted the Government summary
> judgment, but the Ninth Circuit reversed.  Generally,
> pornography can be banned only if it is obscene under Miller v.
> California, 413 U.S. 15, but pornography depicting actual
> children can be proscribed whether or not the images are
> obscene because of the State's interest in protecting the
> children exploited by the production process, New York v.
> Ferber, 458 U.S. 747, 758, and in prosecuting those who promote
> such sexual exploitation, id., at 761. The Ninth Circuit held
> the CPPA invalid on its face, finding it to be substantially
> overbroad because it bans materials that are neither obscene
> under Miller nor produced by the exploitation of real children
> as in Ferber.
>
> Held: The prohibitions of sects. 2256(8)(B) and 2256(8)(D) are
> overbroad and unconstitutional.  Pp. 6-21.
>     (a) Section 2256(8)(B) covers materials beyond the
> categories recognized in Ferber and Miller, and the reasons the
> Government offers in support of limiting the freedom of speech
> have no justification in this Court's precedents or First
> Amendment law. Pp. 6-19.
> (1) The CPPA is inconsistent with Miller.  It extends
> to images that are not obscene under the Miller standard, which
> requires the Government to prove that the work in question,
> taken as a whole, appeals to the prurient interest, is patently
> offensive in light of community standards, and lacks serious
> literary, artistic, political, or scientific value, 413 U.S.,
> at 24. Materials need not appeal to the prurient interest
> under the CPPA, which proscribes any depiction of sexually
> explicit activity, no matter how it is presented.  It is not
> necessary, moreover, that the image be patently offensive.
> Pictures of what appear to be 17-year-olds engaging in sexually
> explicit activity do not in every case contravene community
> standards.  The CPPA also prohibits speech having serious
> redeeming value, proscribing 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 for centuries.  A number of acclaimed movies, filmed
> without any child actors, explore themes within the wide sweep
> of the statute's prohibitions. If those movies contain a
> single graphic depiction of sexual activity within the
> statutory definition, their possessor would be subject to
> severe punishment without inquiry into the literary value of
> the work.  This is inconsistent with an essential First
> Amendment rule: A work's artistic merit does not depend on the
> presence of a single explicit scene.  See, e.g., Book Named
> "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney
> General of Mass., 383 U.S. 413, 419.  Under Miller, redeeming
> value is judged by considering the work as a whole.  Where the
> scene is part of the narrative, the work itself does not for
> this reason become obscene, even though the scene in isolation
> might be offensive.  See Kois v. Wisconsin, 408 U.S. 229, 231
> (per curiam).  The CPPA cannot be read to prohibit obscenity,
> because it lacks the required link between its prohibitions and
> the affront to community standards prohibited by the obscenity
> definition.  Pp. 6-11.
> (2) The CPPA finds no support in Ferber.  The Court
> rejects the Government's argument that speech prohibited by the
> CPPA is virtually indistinguishable from material that may be
> banned under Ferber.  That case upheld a prohibition on the
> distribution and sale of child pornography, as well as its
> production, because these acts were "intrinsically related" to
> the sexual abuse of children in two ways.  458 U.S., at 759.
> First, as a permanent record of a child's abuse, the continued
> circulation itself would harm the child who had participated.
> See id., at 759, and n. 10.  Second, because the traffic in
> child pornography was an economic motive for its production,
> the State had an interest in closing the distribution network.
> Id., at 760.  Under either rationale, the speech had what the
> Court in effect held was a proximate link to the crime from
> which it came. In contrast to the speech in Ferber, speech
> that is itself the record of sexual abuse, the CPPA prohibits
> speech that records no crime and creates no victims by its
> production.  Virtual child pornography is not "intrinsically
> related" to the sexual abuse of children.  While the Government
> asserts that the images can lead to actual instances of child
> abuse, the causal link is contingent and indirect.  The harm
> does not necessarily follow from the speech, but depends upon
> some unquantified potential for subsequent criminal acts.  The
> Government's argument that these indirect harms are sufficient
> because, as Ferber acknowledged, child pornography rarely can
> be valuable speech, see id., at 762, suffers from two flaws.
> First, Ferber's judgment about child pornography was based upon
> how it was made, not on what it communicated.  The case
> reaffirmed that where the speech is neither obscene nor the
> product of sexual abuse, it does not fall outside the First
> Amendment's protection.  See id., at 764-765.  Second, Ferber
> did not hold that child pornography is by definition without
> value. It recognized some works in this category might have
> significant value, see id., at 761, but relied on virtual
> images--the very images prohibited by the CPPA--as an
> alternative and permissible means of expression, id., at 763.
> Because Ferber relied on the distinction between actual and
> virtual child pornography as supporting its holding, it
> provides no support for a statute that eliminates the
> distinction and makes the alternative mode criminal as well.
> Pp. 11-13.
> (3) The Court rejects other arguments offered by the
> Government to justify the CPPA's prohibitions. The contention
> that the CPPA is necessary because pedophiles may use virtual
> child pornography to seduce children runs afoul of the
> principle that speech within the rights of adults to hear may
> not be silenced completely in an attempt to shield children
> from it.  See, e.g., Sable Communications of Cal., Inc. v. FCC,
> 492 U.S. 115, 130-131. That the evil in question depends upon
> the actor's unlawful conduct, defined as criminal quite apart
> from any link to the speech in question, establishes that the
> speech ban is not narrowly drawn.  The argument that virtual
> child pornography whets pedophiles' appetites and encourages
> them to engage in illegal conduct is unavailing because the
> mere tendency of speech to encourage unlawful acts is not a
> sufficient reason for banning it, Stanley v. Georgia, 394 U.S.
> 557, 566, absent some showing of a direct connection between
> the speech and imminent illegal conduct, see, e.g., Brandenburg
> v. Ohio, 395 U.S. 444, 447 (per curiam).  The argument that
> eliminating the market for pornography produced using real
> children necessitates a prohibition on virtual images as well
> is somewhat implausible because few pornographers would risk
> prosecution for abusing real children if fictional,
> computerized images would suffice.  Moreover, even if the
> market deterrence theory were persuasive, the argument cannot
> justify the CPPA because, here, there is no underlying crime at
> all.  Finally, the First Amendment is turned upside down by the
> argument that, because it is difficult to distinguish between
> images made using real children and those produced by computer
> imaging, both kinds of images must be prohibited.  The
> overbreadth doctrine prohibits the Government from banning
> unprotected speech if a substantial amount of protected speech
> is prohibited or chilled in the process.  See Broadrick v.
> Oklahoma, 413 U.S. 601, 612.  The Government's rejoinder that
> the CPPA should be read not as a prohibition on speech but as a
> measure shifting the burden to the accused to prove the speech
> is lawful raises serious constitutional difficulties.  The
> Government misplaces its reliance on sect. 2252A(c), which
> creates an affirmative defense allowing a defendant to avoid
> conviction for nonpossession offenses by showing that the
> materials were produced using only adults and were not
> otherwise distributed in a manner conveying the impression that
> they depicted real children.  Even if an affirmative defense
> can save a statute from First Amendment challenge, here the
> defense is insufficient because it does not apply to possession
> or to images created by computer imaging, even where the
> defendant could demonstrate no children were harmed in
> producing the images.  Thus, the defense leaves unprotected a
> substantial amount of speech not tied to the Government's
> interest in distinguishing images produced using real children
> from virtual ones.  Pp. 13-19.
>     (b) Section 2256(8)(D) is also substantially overbroad.
> The Court disagrees with the Government's view that the only
> difference between that provision and sect. 2256(8)(B)'s
> "appears to be" provision is that sect. 2256(8)(D) requires the
> jury to assess the material at issue in light of the manner in
> which it is promoted, but that the determination would still
> depend principally upon the prohibited work's content. The
> "conveys the impression" provision requires little judgment
> about the image's content; the work must be sexually explicit,
> but otherwise the content is irrelevant.  Even if a film
> contains no sexually explicit scenes involving minors, it could
> be treated as child pornography if the title and trailers
> convey the impression that such scenes will be found in the
> movie. The determination turns on how the speech is presented,
> not on what is depicted.  The Government's other arguments in
> support of the CPPA do not bear on sect. 2256(8)(D).  The
> materials, for instance, are not likely to be confused for
> child pornography in a criminal trial. Pandering may be
> relevant, as an evidentiary matter, to the question whether
> particular materials are obscene.  See Ginzburg v. United
> States, 383 U.S. 463, 474.  Where a defendant engages in the
> "commercial exploitation" of erotica solely for the sake of
> prurient appeal, id., at 466, the context created may be
> relevant to evaluating whether the materials are obscene.
> Section 2256(8)(D), however, prohibits a substantial amount of
> speech that falls outside Ginzburg's rationale.  Proscribed
> material is tainted and unlawful in the hands of all who
> receive it, though they bear no responsibility for how it was
> marketed, sold, or described.  The statute, furthermore, does
> not require that the context be part of an effort at
> "commercial exploitation."  Thus, the CPPA does more than
> prohibit pandering.  It bans possession of material pandered as
> child pornography by someone earlier in the distribution chain,
> as well as a sexually explicit film that contains no youthful
> actors but has been packaged to suggest a prohibited movie.
> Possession is a crime even when the possessor knows the movie
> was mislabeled.  The First Amendment requires a more precise
> restriction.  Pp. 19-20.
>     (c) In light of the foregoing, respondents' contention
> that sects. 2256(8)(B) and 2256(8)(D) are void for vagueness
> need not be addressed. P. 21.
>
> 198 F.3d 1083, affirmed.
>
> Kennedy, J., delivered the opinion of the Court, in which
> Stevens, Souter, Ginsburg, and Breyer, JJ., joined.  Thomas,
> J., filed an opinion concurring in the judgment.  O'Connor, J.,
> filed an opinion concurring in the judgment in part and
> dissenting in part, in which Rehnquist, C. J., and Scalia, J.,
> joined as to Part II.  Rehnquist, C. J., filed a dissenting
> opinion, in which Scalia, J., joined except for the paragraph
> discussing legislative history.
>




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