FC: Annoy.com attorney replies to new "morphed" child porn bill

[Declan McCullagh <declan () well com>]

See also:

"Ashcroft & friends: We'll try again to ban 'morphed' child porn"
http://www.politechbot.com/p-03470.html

Politech archive:
http://www.politechbot.com/cgi-bin/politech.cgi?name=morphed

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Date: Mon, 6 May 2002 17:26:55 -0700
From: "Clinton D. Fein" <clinton.fein () apollomedia com>
To: <declan () well com>, <politech () politechbot com>

Hi Declan:

FYI. I have attached, with the permission of William Turner, (one of my
attorneys in both ApolloMedia v. Reno and United States v. ApolloMedia),
a response to a request from Senator Leahy's staff for his comments on
the proposed bill that the Administration says "responds to the Supreme
Court's decision in Ashcroft v. Free Speech Coalition, No. 00-795 (April
16, 2002)."=20

In addition to teaching The First Amendment and the Press at the
University of California, Berkeley, Bill also submitted a brief amici
curiae in Free Speech Coalition on behalf of the American Civil
Liberties Union and other organizations.

I've also included a link to the appropriately formatted-and-footnoted
letter on annoy.com, as well as a WPD of the Amicus brief (and a
not-so-brilliantly-formatted-but-adequate HTML version, as well).=20

The Letter:
http://www.annoy.com/sectionless/doc.html?DocumentID=3D100344

The Amicus Brief
http://www.annoy.com/sectionless/Brief_of_ACLU_et_al_Ashcroft_v_Free_Speech_Coalition.htm

or

http://www.annoy.com/sectionless/AmicusBrief.wpd

Clinton


Bill says he did not have a chance to do any extensive research on the
new bill, but offered the following overview:

[excerpt]

The bill is unsupported by evidence that it addresses a real problem,
and there is a need for hearings.=20

The bill seems to be a statute in search of a problem. It attempts to
establish entire new categories of prohibited speech, without any
evidence that there is an actual need for legislation. Specifically: (a)
there is no evidence that currently available technology can in fact
create images that are "virtually indistinguishable" from pictures of
real children engaging in sexually explicit conduct; (b) there is no
evidence that anyone has ever used a computer-generated image for the
purpose of actual child abuse; [2] and (c) there is no evidence that any
prosecution for actual child pornography or abuse has failed, or not
been brought, because the government has been unable to meet its burden
of proving that real children were involved.[3]=20

Thus, the new bill seems unnecessary to serve any valid legislative
purpose. At a minimum, hearings must be held so that the Senate can
consider the strength and quality of evidence said to require new
restrictions on speech.=20

The bill shares most of the constitution defects condemned in Free
Speech Coalition=20

As explained in the Court's decision, the CPPA violated the First
Amendment because it made criminal speech that was neither "obscene"
under the Court's long-established Miller test nor "child pornography"
involving the abuse of real children under the Court's Ferber decision.
The new bill attempts to do the same. Thus, for example, it makes
criminal speech that does not appeal to the prurient interest and that
does have redeeming artistic, political or other social value. In
addition to the examples referred to in the Court's opinion, the bill
would make criminal the use by therapists and academic researchers of
computer-generated images, the making of explicit anti-child abuse
documentary videos, etc. Under the bill, there can be no legitimate
reason for possessing a prohibited image; it is a strict liability
criminal statute. Without any "legitimate use" exception, the bill makes
impossible the scholarly research that might evaluate whatever empirical
assumptions are said to support its enactment.=20

Further, the Administration analysis fails to identify any compelling
(or other) government interest to be served by the bill. Assuming that
the interests are the same as the government advanced in Free Speech
Coalition, they are no more valid here. That is, to the extent that the
government claims that computer-generated images may "whet the appetite"
of pedophiles or be used to seduce minors, the bill punishes speech
because of its "tendency to encourage unlawful acts;" and the Court
squarely reaffirmed that this is a constitutionally inadequate basis for
outlawing speech. See Free Speech Coalition, slip op. at 15. Government
can and should outlaw abuse of children, but it cannot outlaw speech
unless the speech is shown to incite actual illegal conduct. Id.; see
Brandenburg v. Ohio, 395 U.S. 444 (1969).=20

Prohibiting "pandering" of protected speech is unconstitutional=20

Section 3 of the bill attempts to make it a crime to "describe" an image
as containing a "visual depiction of a minor engaging in sexually
explicit conduct." It would be a crime even if the image itself was
neither obscene nor prohibitable child pornography. In other words, the
bill attempts to criminalize the speech that describes the image even if
the image itself is protected. This, too, violates the First
Amendment.[4]=20

As the Court ruled in Free Speech Coalition, in invalidating the
"conveys the impression" provision of the CPPA, speech cannot be
prohibited based on "how it is presented" as opposed to "what is
depicted." Slip op. at 19. Evidence of "pandering" may be relevant in an
obscenity prosecution on the issue of whether particular materials are
in fact obscene (id. at 20), but it cannot be treated as criminal in
itself.=20

New prohibition on "obscenity depicting young children"=20

Section 4 of the bill, a new concept, is a constitutional mess. Although
titled "obscenity depicting young children," it does not in fact deal
with obscenity but establishes a broad new category of prohibited
speech. "Obscenity" of course is already a crime, whether it depicts
children or adults. If this provision dealt with obscenity, it would
simply be redundant of existing federal obscenity laws. But Section 4
makes it a crime to create or possess a "visual depiction that is, or is
virtually indistinguishable from, that of a pre-pubescent child engaging
in sexually explicit conduct." This goes far beyond obscenity. "Sexually
explicit conduct" is defined in the statute. It does not require that
the depiction predominantly appeal to the prurient interest; it does not
require that the depiction be patently offensive to community standards;
and it does not require that the depiction be without redeeming
artistic, scientific, political or other social value. In short, Section
4 prohibits a depiction that is not obscene, does not depict or involve
a real child, does not appeal to the prurient interest, is not offensive
to community standards, and does have artistic or other social value.
This blatantly violates the First Amendment.=20

Void for Vagueness=20

The Court in Free Speech Coalition, having invalidated the CPPA on
overbreadth grounds, found it unnecessary to decide whether the statute
was also void for vagueness. Slip op. at 21. The bill shares the same
vagueness issues as the CPPA. As a criminal statute that restricts and
punishes pure speech, the bill is too vague. It makes it a crime to have
an image "that is, or appears virtually indistinguishable from" a
picture of a real minor engaging in sexual conduct, and it is a crime if
it "appears" to show a "lascivious" exhibition of the genitals "or pubic
area of any person." These inherently subjective prohibitions are
invalid under well established Fifth Amendment principles. The vagueness
test is at its strictest when a statute restricts speech. See Hoffman
Estates v. Flipside, 455 U.S. 489 (1982); Smith v. Goguen, 415 U.S. 566
(1974). Such a statute must provide more notice and allow less
discretion, to ensure against arbitrary or discriminatory enforcement.
See Reno v. ACLU, 526 U.S. 844, 871-72 (1997) (vagueness of criminal law
"raises special First Amendment concerns because of its obvious chilling
effect on free speech"). The provisions here are inherently subjective -
among other things, they turn on how something "appears" to someone
(prosecutor or juror) - and therefore cannot serve as the basis for a
criminal conviction. See City of Chicago v. Morales, 119 S.Ct. 1849,
1861-62 (1999), and cases cited.=20

[/exerpt]
_____________________________________
=20
Clinton Fein
President
ApolloMedia Corporation
370 7th Street, Suite 6
San Francisco, CA  94103
Phone: 415-552-7655
Fax: 415-552-7656
http://apollomedia.com/
_____________________________________




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