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U.S. Supreme Court upholds decision that finds the Child Pornography Protection Act of 1996 unconstitutional

U.S. Supreme Court upholds decision that finds the Child Pornography Protection Act of 1996 unconstitutional

"technology may evolve to the point where it becomes impossible to enforce actual child pornography laws because the Government cannot prove that certain pornographic images are real children. In the event this occurs," he said, "the Government should not be foreclosed from enacting a regulation of virtual child pornography that contains an appropriate affirmative defense or some other narrowly drawn restriction" that does not violate the First Amendment.

US Supreme Court to Decide Child Pornography Law

The DOJ appealed to the Supreme Court, saying the ruling was incorrect and should be overturned. It said the provisions were designed "to address serious dangers to children posed by computer-generated child pornography."

The Justice Department said Congress found that advancing technology makes it increasingly difficult, if not impossible, to distinguish computer-generated from photographic depictions of minors.

The Supreme Court said Monday the government can require public libraries to equip computers with anti-pornography filters, rejecting librarians' complaints that the law amounts to censorship.

More than 14 million people a year use public library computers, including many children, and the court said patrons of all ages were being exposed to unseemly sex sites on the Web.

 

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U.S. Supreme Court upholds decision that finds the Child Pornography Protection Act of 1996 unconstitutional

U.S. Supreme Court upholds decision that finds the Child Pornography Protection Act of 1996 unconstitutional

The Foundation for the Protection of Children on the Internet (fpci) is at the center of a movement in the United States to better protect children and adolescents from the corrosive and potentially harmful effects of internet pornography. According to a Congressional study performed by the U.S. Department of Health and Human Services there were 93,000 cases of sexual abuse of children in 1999, and was a substantial consideration in the dissenting opinions of Supreme Court justices in a case decided earlier this year, the analysis of which is the major focus of this article, but first, a little about fpci.

Fpci has no rock stars, celebrities or superstar athletes, to carry our message, just a few dedicated people who want to see pornographic websites classified on the world wide web by a designation that identifies their content so that parents, schools, libraries and other organizations responsible for children can more easily filter out the ability to view pornographic websites. Earlier this year we sent a proposal to the Internet Corporation of Assigned Names and Numbers advocating that all commercial pornographic websites carry the designation ".xxx." ICANN is the organization that creates the current designations, such as ".com., .gov., .edu," etc. The inclusion of ".xxx" for porn sites would permit filtering programs to filter for the designation instead of using names, words, phrases or complicated algorithms to achieve the same goal. Up to now they have not responded, but we believe we will have more success when the subject is again discussed at Congressional hearings later this year. For more information on the topic see the website at www.juvenilejustice.com and click on the Foundation banner.

The Case
John D. Ashcroft, Attorney General, et al, Petitioners v. The Free Speech Coalition et al. This case surfaced in the United States District Court for the Northern District of California when a group called the Free Speech Coalition and others sought to test the constitutionality of the Child Pornography Prevention Act (CPPA) of 1996 by asserting that the legislation abridges the freedom of speech. The CPPA expands the federal prohibition on child pornography to include not only pornographic images using actual children, 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," 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." Opponents charged that the legislation was overbroad and vague and could be construed to ban other material that was already protected under the constitution, such as a graphic rendition of Romeo and Juliet or a nudist magazine that contained photos of children. The District Court disagreed and granted summary judgement to the government. The decision was appealed to the Ninth Circuit Court of Appeals, which reversed the lower court reasoning that "the Government could not prohibit speech because of its tendency to persuade viewers to commit illegal acts." The court held the CPPA to be substantially overbroad because it bans materials that are neither obscene nor produced by the exploitation of real children. The U.S. Supreme Court heard the case on October 30, 2001 and Justice Kennedy wrote the opinion upholding the decision of the Ninth Circuit on April 16, 2002. Justices Kennedy, Ginsburg Stevens, Souter, Breyer and Thomas, who wrote his own opinion, voted with the majority. Justice O'Conner wrote an opinion concurring in part and dissenting in part, in which Chief Justice Rehnquist and Justice Scalia joined as to Part II. Justice Rehnquist wrote a dissenting opinion in which Justice Scalia joined except for the paragraph discussing legislative history. Overall, seven of the nine judges found some support for the Ninth Circuit and qualified support for the CPPA.

The Decision
This decision to find the CPPA unconstitutional protects the right of producers to create child pornography using computer-generated images if those images are not "obscene" under Miller v. California, or produced using real children (New York v. Ferber). The Miller standard "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." In New York v. Ferber the courts upheld the prohibition on the use of children to create pornographic images. Justice Kennedy said "As a general rule, pornography can be banned only if obscene, but under Ferber, pornography showing minors can be proscribed whether or not the images are obscene under the definition set forth in Miller v. California. Ferber recognized that the Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State's particular and more compelling interest in prosecuting those who promote the sexual exploitation of children." In upholding the decision of the Ninth Circuit , Kennedy said "by prohibiting child pornography that does not depict an actual child, the statute goes beyond New York v. Ferber. Like the law in Ferber, the CPPA seeks to reach beyond obscenity, and makes no attempt to conform to the Miller standard. The principal question to be resolved, then, is whether the CPPA is constitutional where it proscribes a significant universe of speech that is neither obscene under Miller nor child pornography under Ferber," Kennedy said.

Before 1996, Congress defined child pornography as the type of depictions at issue in Ferber, images made using actual children. The CPPA retains that prohibition and adds three other categories of speech, the which the first, 18 U.S.C. ¤2256 (8)(B), and the third. ¤2256(8)(D) are at issue in this case.

18 U.S.C. ¤2256(8)(B)
Subsection (8)(B) prohibits "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." To ensure that defendants possessing child pornography using real minors cannot evade prosecution, Congress extended the ban to virtual child pornography. "In sum," the court said, " ¤2256(8)(B) covers material 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 our precedents or in the law of the First Amendment. The provision abridges the freedom to engage in a substantial amount of lawful speech. For this reason, it is overbroad and unconstitutional.

18 U.S.C. ¤2256(8)(D)
Subsection (8)(D) defines child pornography to include any sexually explicit image that was "advertised, promoted, presented, described or distributed in such a manner that conveys the impression" it depicts "a minor engaging in sexually explicit conduct." This second provision prevents child pornographers and pedophiles from exploiting prurient interests in child sexuality and sexual activity through the production or distribution of pornographic material which is intentionally pandered as child pornography. "The determination turns on how the speech is presented, not on what is depicted. The provision prohibits a sexually explicit film containing no youthful actors, just because it is placed in a box suggesting a prohibited movie. Possession is a crime even when the possessor knows the movie was mislabeled. The First Amendment requires a more precise restriction. For the reasons we have set forth, the prohibitions of ¤2256(8)(B) and ¤2256(8)(D) are overbroad and unconstitutional. The judgement of the Court of Appeals is affirmed."

Justice O'Connor's written opinion, with whom the Chief Justice and Justice Scalia join in part II, concurs to the judgement in part and dissents in part. Justice O'Connor concurs with Kennedy in the judgement to the extent that all provisions except those related to virtual child pornography are overbroad. In Part I, she notes that "because the Government may already prohibit obscenity without violating the First Amendment, what the Government asks this court to rule is that it may also prohibit youthful-adult and virtual-adult pornography that is merely indecent without violating the First Amendment." In Part II of her opinion, in which she is joined by Chief Justice Rehnquist and Judge Scalia, she rejects the Court's view that the CPPA's prohibition of virtual-child pornography is overbroad, citing the Government's compelling interest in protecting children. "These efforts, in turn, are supported by the CPPA's ban on virtual-child pornography. Such images whet the appetites of child molesters who may use the images to seduce young children. Of even more serious concern is the prospect that defendants indicted for the production, distribution or possession of actual-child pornography may evade liability by claiming that the images attributed to them are in fact computer-generated. In sum, I would strike down the CPPA's ban on material that 'conveys the impression' that it contains the actual-child pornography, but uphold the ban on pornographic depictions that 'appears to be' of minors as long as it is not applied to youthful-adult pornography," she wrote.

Justice Thomas also concurred with the decision but raised two potential points of contention. The first, also noted by O'Connor, is that "persons who possess and disseminate pornographic images of real children may escape conviction by claiming that the images are computer-generated, thereby raising a reasonable doubt as to their guilt." Noting that the Government points to no case in which a defendant has been acquitted based on a computer-generated images defense, the mere speculation that it could occur "cannot support the broad reach of the CPPA." The second point he raised is that "technology may evolve to the point where it becomes impossible to enforce actual child pornography laws because the Government cannot prove that certain pornographic images are real children. In the event this occurs," he said, "the Government should not be foreclosed from enacting a regulation of virtual child pornography that contains an appropriate affirmative defense or some other narrowly drawn restriction" that does not violate the First Amendment.

Chief Justice Rehnquist wrote the dissenting opinion, with which Justice Scalia concurred except for the paragraphs relating to legislative history. In his view, Òthe CPPA does not need to be construed to reach "pornographic material that is already legal under Miller or illegal under Ferber," but that "Congress has a compelling interest in insuring the ability to enforce prohibitions of actual child pornography, and we should defer to its findings that the rapidly advancing technology soon will make it all but impossible to do so." He also noted that we (the Court) normally do not strike down a statute on First Amendment grounds "when a limiting instruction has been or could be placed on the challenged statute. Other than computer generated images that are virtually indistinguishable from real children engaged in sexually explicit conduct, the CPPA can be limited so as not to reach any material that was not already unprotected before the CPPA.

In sum, while potentially impermissible applications of the CPPA may exist, I doubt that they would be substantial in relation to the statute's plainly legitimate sweep. The aim of ensuring the enforceability of our Nation's child pornography laws is a compelling one. The CPPA 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. The statute need not be read to do any more than precisely this, which is not offensive to the First Amendment. For these reasons, I would construe the CPPA in a manner consistent with the First Amend-ment, reverse the Court of Appeals judgement, and uphold the statute in its entirety."

published dec/jan 2003

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U.S. Supreme Court Approves Of Library Filters June 23, 2003

A divided Surpreme Court ruled that people should not be able to view pornography when using a public library's Internet access.
By Gina Holland, Associated Press  

WASHINGTON (AP) -- The Supreme Court said Monday the government can require public libraries to equip computers with anti-pornography filters, rejecting librarians' complaints that the law amounts to censorship.

More than 14 million people a year use public library computers, including many children, and the court said patrons of all ages were being exposed to unseemly sex sites on the Web.

Justices ruled that the government can withhold money from libraries that won't install blocking devices, even though the technology shuts off more than pornography.

"To the extent that libraries wish to offer unfiltered access, they are free to do so without federal assistance," the main ruling said.

The 6-3 ruling, although fractured, was the federal government's most significant legal victory in a seven-year effort to shield children from Internet smut.

Four justices said the law didn't violate First Amendment free speech, and two others said it was allowable as long as libraries disable the filters for adult patrons who ask. The law doesn't specifically require the disabling.

"This is electronic book burning. The Supreme Court has ruled the secret censors may prevent you from reading what you want," said Seth Finkelstein, a Cambridge, Mass., computer programmer who is a leading expert on Internet filters.

Judith Krug, with the American Library Association, predicted that many libraries would consider rejecting federal money rather than installing filters. "A substantial number of libraries will say it's not worth it," she said. "The fact that the librarian can flick a switch isn't going to change the stigma that's attached to it."

Chief Justice William H. Rehnquist said, "The Constitution doesn't guarantee the right to acquire information at a public library without any risk of embarrassment."

At a public library Monday, great-grandmother Susannah Clarke said she was glad the court upheld the Children's Internet Protection Act.

"Sex is something that's like a gun: dangerous if you don't know how to use it. I'm all for them putting regulations in a public place," said Clarke, who visits her library branch in Washington, D.C., twice a week.

Rita Thompson-Joyner, a 30-year librarian in Washington, said when it comes to keeping youngsters away from porn, "We don't believe it's the library that has that responsibility. We believe it rests with the parents and only the parents."

Congress has passed three anti-pornography laws since 1996. The Supreme Court struck down the first one, and the second was blocked by justices from taking effect. The first two laws were criminal statutes involving Web-site operators.

Rep. Ernest Istook, R-Okla., a main drafter of the law, said the ruling "will mean libraries can continue to fulfill their mission because parents won't need to be reluctant about dropping off their kids for an afternoon at the library."

Adult library users will be inconvenienced but will still be able to use filterless computers as long as they ask, said Chris Hansen, senior attorney for the American Civil Liberties Union. He said libraries in poor communities will be more likely to install filters because they can't afford to lose the money.

A three-judge federal panel in Pennsylvania ruled last year that the law was unconstitutional because it caused libraries to violate the First Amendment. The Supreme Court disagreed. Rehnquist's opinion was joined by Justices Sandra Day O'Connor, Antonin Scalia and Clarence Thomas.

Justices Anthony M. Kennedy and Stephen Breyer, in separate opinions, said the government's interest in protecting young library users from inappropriate material outweighs the burden on library users having to ask staff to disconnect filters.

"A statutory blunderbuss that mandates this vast amount of overblocking abridges the freedom of speech protected by the First Amendment," Stevens wrote.

Souter compared the filters to a library "buying an encyclopedia and then cutting out pages with anything thought to be unsuitable for all adults."

Opponents of the law said the court's ruling left open other possible constitutional challenges, including lawsuits over the way filters affect library patrons.

The case is United States v. American Library Association, 02-361.