Archive for Wednesday, April 17, 2002

High court strikes down ‘virtual’ child porn ban

Justices, in 6-3 ruling, find prohibition too broad; decision blasted by outraged conservative groups

April 17, 2002

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— The government went too far in trying to ban computer simulations and other fool-the-eye depictions of teen-agers or children having sex, the Supreme Court ruled Tuesday.

Youthful sexuality is an old theme in art, from Shakespeare to Academy Award-winning movies, the court found in striking down key provisions of a 1996 child pornography law on free speech grounds.

The law would call into question legitimate educational, scientific or artistic depictions of youthful sex, Justice Anthony M. Kennedy wrote for a 6-3 majority.

"The statute proscribes the visual depiction of an idea that of teen-agers engaging in sexual activity that is a fact of modern society and has been a theme in art and literature throughout the ages," Kennedy wrote in a decision joined by four other justices.

For example, the recent, Academy Award-winning dramas "Traffic," and "American Beauty" also would be suspect, Kennedy said.

Clarence Thomas, one of the court's most conservative justices, wrote a separate opinion agreeing with the outcome.

The court invalidated two provisions of the Child Pornography Prevention Act as overly broad and unconstitutional. Free speech advocates and pornographers had challenged the law's ban on material that "appears to be" a child in a sexually explicit situation or that is advertised to convey the impression that someone under 18 is involved.

Atty. Gen. John Ashcroft said the ruling makes prosecution of child pornographers "immeasurably more difficult." He offered to work with Congress on new legislation that could withstand the court's scrutiny.

It is not clear how many people have been prosecuted under the stricken provisions, nor what might become of convictions. Ashcroft said prosecutors will retool some indictments to rely on obscenity law that was unaffected by Tuesday's ruling.

Another section of the 1996 law was not challenged, and remains in force. It bans prurient computer alteration of innocent images of children, such as the grafting of a child's school picture onto a naked body.

Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer signed Kennedy's opinion. Thomas, in a separate concurring opinion, said the court's ruling appropriately strikes down a ban that was too sweeping but leaves a window for future regulation of some kinds of virtual child pornography.

Justice Sandra Day O'Connor partially agreed with the majority and partially disagreed. The law is indeed too broad, but a portion of it could be salvaged, O'Connor wrote.

Chief Justice William Rehnquist and Justice Antonin Scalia dissented, arguing that the law need not be read to ban the kind of artistic material that concerned Kennedy.

"The aim of ensuring the enforceability of our nation's child pornography laws is a compelling one," Rehnquist wrote for the pair. "The (law) is targeted to this aim by extending the definition of child pornography to reach computer-generated images that are virtually indistinguishable from real children engaged in sexually explicit conduct."

Conservatives outside the court were outraged.

"That the Supreme Court of the United States can entertain the notion that virtual images of children being sexually violated has 'value' that needs protection is an abomination," said Jan LaRue, legal studies director at the Family Research Council.

The case is Ashcroft v. Free Speech Coalition, 00-795.

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