Virtual Child Pornography And The Constitution

The digital age has brought with it a proliferation in the creation of child pornography. Today, child pornography is easily ‘created’ with a computer and some software. Virtual child pornography (“VCP”) can be produced in a number of ways. Forms of such pornography include: modified photographs of real children, non-minor teenagers made to look younger, fully computer-generated imagery or adults made to look like children.

Historical Background

In Miller v. California, the Supreme Court held that lewd and obscene speech does not receive First Amendment protection because obscenity serves no crucial role in the exposition of ideas and has little social value. The Court developed a balancing test that asks: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work taken as a whole, lacks serious literary, artistic, political or scientific value. Material that ‘passes’ the Miller test is thus deemed to be obscene and is not afforded First Amendment protection.

In 1982, in New York v. Ferber, the Court held that child pornography involving actual children is a category of speech not protected by the Constitution and that such depictions may be prohibited even if they are not obscene. Although Ferber focused on production and distribution of child pornography, in 1990, the Court in Osborne v. Ohio upheld an Ohio statute criminalizing mere possession of child pornography.

In 1996, Congress passed the Child Pornography Prevention Act. The CPPA expanded the definition of child pornography by criminalizing the creation of VCP. Under the CPPA, images that appeared to depict children but do not, including images of youthful-looking adults or images that are computer-generated, were illegal. The CPPA also included a “pandering” provision that stated that any visual image that has been promoted in a manner that “conveys the impression” that a minor engaging in sexually explicit conduct is depicted, is illegal. Seemingly, the pandering provision would have criminalized cases where there was no pornographic image at all, such as a case where the sender of an email claims in the subject line of the email that there is a pornographic image of a child attached to the email, when in fact all that is attached is an image of a blank wall.

In Ashcroft v. Free Speech Coalition, the Supreme Court found the CPPA unconstitutional on numerous grounds. The pandering provision was deemed overbroad because it criminalized downstream possession of material described, or pandered, as child pornography by someone earlier in the distribution chain even if no minors were actually involved in the production. The Court criticized the provision because it criminalized speech based solely “on how the speech is presented” rather than on “what is depicted.”

Congress then came up with The PROTECT Act (Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today). It is built on the same platform as the CPPA with some important distinctions: (1) The Protect Act includes any digital image “that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.” (2) The requirement of showing obscenity as defined by the Miller test, which was not an element of the 1996 law. (3) Congress removed the pandering provision from the definition of child pornography and drafted a separate section prohibiting only virtual images of minors engaged in sexually explicit conduct that are knowingly advertised, promoted, presented, distributed or solicited in a manner that reflects the belief, or are intended to cause another to believe, that they are obscene. (4) Finally, by adding a knowledge requirement, Congress protects individuals in possession of materials pandered as child pornography by someone earlier in the distribution chain so long as those individuals do not pander the materials as or believe that the materials are child pornography.

In United States v. Williams, the Eleventh Circuit held that the pandering provision of the PROTECT Act was overbroad and impermissibly vague because it criminalized the speech of someone who touts material as child pornography even when in fact it is either nonexistent or not pornographic. In addressing the vagueness challenge, the court also found it problematic that the statute lacked any intent requirement. In the court's view, the provision could apply to an e-mail entitled "Good pics of kids in bed" sent by a grandparent, with innocent pictures of grandchildren in pajamas attached. As a result, the Eleventh Circuit declared the PROTECT Act unconstitutional. The Supreme Court reversed and found the PROTECT Act to be Constitutional.

Scalia reasoned as follows: A statute is facially invalid if it prohibits a substantial amount of protected speech. However, because the Court in Miller and Ferber had already proscribed the material involved in the speech – the child pornography - the pandering provision is Constitutional because it targets the “collateral speech”- the pandering which introduces this contraband material into the child pornography distribution network. First Amendment protection only extends to lawful speech; offers to engage in illegal transactions are categorically excluded from First Amendment protection.

Scalia points out that VCP which is marketed as VCP will not be proscribed by the PROTECT Act. The Act proscribes only pandering where the intention is to cause another to believe that the material is contraband. Scalia claimed that Williams was not overruling Free Speech Coalition. Both decisions agreed that the CPPA’s prohibition on creation and distribution of VCP was a violation of First Amendment rights. As a result, one who creates VCP – even if it is indistinguishable from real child pornography - and markets it as VCP is afforded First Amendment rights.

Should It Be Legal to Market VCP As VCP?

Instinctually, the vast majority of society is repulsed by child pornography. Children are usually the most innocent and defenseless of people. Child pornography harms and debases these innocents. The most damage to children occurs in the production of real child pornography. VCP obviously does not damage children in its production because children were quite possibly never involved in its production. Perhaps VCP is even beneficial to children. Perhaps potential producers of real child pornography might instead turn to its legal cousin so as to avoid prosecution. Perhaps VCP use may decrease cases of sexual abuse by allowing pedophiles to sublimate their desires. It is a victimless alternative that is not intrinsically related to the sexual abuse of children. As a result, goes the argument, the Government cannot restrict this harmless speech. As long as the VCP is not obscene, production is not proscribed under Ferber, nor is possession proscribed under Osborne. Let us examine whether VCP would at least be classified as obscene using the Miller test.

1. Does the work, applying community standards, appeal to the purient interest?

The first question we are faced with in applying this standard to VCP is: who is the community whose standards we are applying? If one produces VCP and posts it on the internet, is the internet community the community we must look to? Perhaps applying the Miller test is not viable in the context of a global internet? This was actually the holding of the Circuit Court in ACLU v. Reno. The Supreme Court, however, disagreed with the Circuit Court’s ruling that the community standards test was overbroad. The Court held that refusal to permit national standards to apply online would make regulation of illegal expression online impossible.

Does VCP appeal to the prurient interest? Although some real images of children may seem innocuous to many people, often these images are found stimulating by pedophiles. Would those images be labeled child pornography by the ‘community’? If they are, then virtually all depictions of children – whom to pedophiles are highly eroticized sexual objects – are likely to be classified as child pornography. Obviously this line of reasoning is faulty, and although the pedophile might have nefarious uses for the innocent picture, it is nevertheless an innocent picture. Conversely, VCP is produced specifically for pedophiles and people who are stimulated by these images. As a result these images ought to be labeled as images that appeal to the prurient interests by community standards.

2. Does the work depict or in a patently offensive way, sexual conduct specifically defined by the applicable state law?

Arguably, there is no criminal more reviled by society than the child molester/pedophile. Any material that aids or incites the pedophile would undoubtedly be repugnant and offensive. According to the Mayo Clinic, studies and case reports indicate that 30% to 80% of individuals who viewed child pornography and 76% of individuals who were arrested for Internet child pornography had molested a child. As a result, any depiction of child pornography, even it involved no children in its production such as VCP, would arguably be found to be offensive.

Often the pedophile uses child pornography as a way of tricking his victim into believing that sexual relations between adults and children are normal. VCP that is indistinguishable from real child pornography is probably just as dangerous as the real thing. The pedophile would be able to utilize the virtual depiction the same way he would utilize the real one. Even if the VCP were distinguishable from real child pornography, what is to say that the child victim of the pedophile is able to distinguish between the virtual depiction and the real one? VCP would be offensive simply because it is a tool utilized by the pedophile in his perverse sexual desires.

3. Does the work, lacks serious literary, artistic, political or scientific value?

The Court in Miller stated that “we do not adopt as a constitutional standard the ‘utterly without redeeming social value’ test.” As far as the Court was concerned, possessing some kind of value was not enough to save a work from being classified as obscene. It is unlikely that computer-generated VCP could ever have any serious literary, artistic, political or scientific value given that it is created and traded with pedophiles' interests in mind. In regard to real child pornography, the Court in Ferber stated: “We consider it unlikely that visual depictions of children performing sexual acts or lewdly exhibiting their genitals would often constitute an important and necessary part of a literary performance or scientific or educational work.” It is logical to assume that the same would hold true for VCP. However, even if such images did contain some value, it is unlikely that that value would be enough to afford them First Amendment protection.

Conclusion

Real child pornography has been recognized by the Courts as the repulsive tool of child molestation that it is. Those violating child pornography laws are subject to stiff penalties. Somehow, VCP has flown under the radar. Although Congress has attempted to equate VCP with real child pornography, the Supreme Court has thwarted Congress’ attempts on two occasions. Although debatable whether or not VCP is as damaging as real child pornography, it would seem to me that VCP is by its very nature obscene. Because VCP seemingly passes the Miller test it ought to be prosecuted as obscenity.

-- DavidMehl - 15 Apr 2010