As one of the unprotected areas of speech, the regulations pertaining to obscene material have long been subject to intense scrutiny. However, while obscenity has been unprotected and regulated in the form of the Miller Test, pornography has remained mostly unregulated. While regular pornography remains a protected form of expression under the First Amendment unless in violation with the Miller obscenity test, child pornography is an unprotected form of speech under the First Amendment[1]. The Supreme Court first created child pornography's unprotected status in the 1982 case of New York v. Ferber [2]. However, with the passage of the Child Pornography Prevention Act (CPPA) of 1996, Congress waded into a murky issue: that of virtual child pornography.
A definition given by the Ohio Supreme Court says virtual child pornography is "pornography that depicts children, but through images that are either computer-generated or that are created using only adults." CPPA attempted to expand the child pornography category to include both computer-generated depictions of children, and depictions of what appeared to be minors. Even from the description of the CPPA, we can already feel a sense of vagueness in the type of content that this would encompass. How should a computer image of a person be judged as a child or not? What does it mean to "look underage"?
Therefore, we have the first Supreme Court case dealing with virtual child pornography: Ashcroft v. Free Speech Coalition (2002). The FSC is a group representing the adult entertainment industry, and they filed the lawsuit against the CPPA. The Supreme Court ruled on behalf of the FSC, stating that the overbroad and vague language would seem to prohibit the adaptation of famous works such as "Romeo and Juliet", or of films such as "American Beauty" [3]. In addition, the Supreme Court states that virtual child porn does not directly relate to the abuse of children, which is the main purpose of categorizing child pornography as an unprotected form of speech. It does not seem to consider the Circuit Court's argument that, by making virtual child porn a protected form of expression, there will be indirect harm done to children through proliferating the market demand for child pornography.
However, the Supreme Court's stance on the issue of virtual child pornography seems to be extremely confusing. In 2003, Congress passed the PROTECT act, in which was the provision that, while the possession of virtual child pornography is not illegal, but any attempts to distribute material that "is intended to cause another to believe that the material contains depicted [child pornography]" is illegal [4]. In the 2008 case of United States v. Williams, where defendant Williams was trying to challenge the constitutionality of the PROTECT act provisions as being overbroad and vague, the Supreme Court ruled in favor of the legislation. The Supreme Court's argument was basically that, as technology becomes more advanced and the lines between virtual and real child pornography becomes blurred, repeated transmissions of picture files over the internet will make it nearly impossible to determine whether the image was real or virtual, so therefore any attempt to pass pictures as real must be treated as if the pictures were real [5].
Personally, I do not really see how these rulings are compatible with each other. The government obviously has a vested interest in preventing the abuse of children through child pornography, which is why they have labeled it an unprotected area of speech through the neoliberal ruling on Ferber. In my opinion, the Ashcroft ruling was libertarian because it ruled in favor of generally applicable and narrowly tailored regulations, while minimizing the role of government in categorizing virtual pornography into virtual adult and virtual child porn. However, what the government seems to have forgotten is precisely the issue that arose in the Williams case: how to determine between virtual and real pornography? This issue seems to have no answer, especially as picture and video editing software becomes more adept at creating virtualized versions of people. The Court's response to this seems to be a neoliberal ruling on what people perceive child pornography to be, which seems to defeat the purpose of the previous Ashcroft ruling. An additional point of irony seems to be what Justice Scalia says at the end of the Williams opinion, "whether someone held a belief or had an intent is a true-or-false determination, not a subjective judgment". If the Court had believed, in Ashcroft, that they should not be given the power to evaluate physical images of "virtual" children, they seemed to have backpedaled twice as fast in Williams, to make sure that they can evaluate the MENTAL beliefs of a distributor of pornography.
In my opinion, this ridiculous clash of opinions merely show the problems that will continue to face the court in the area of virtual child porn. As I see it, there are really no solutions for the issue of child pornography. The courts can choose to continue ruling on an ad-hoc basis upon the regulation upon the contents of virtual child pornography (both physical and mental contents, as Williams seems to have set a precedence for), in which case the question is "how to determine the intentions and beliefs of the distributor and receiver". The courts could also decide to ban all representations of children in pornography, in which case the question becomes "How to determine what constitutes a 'child' in computer-generated or adult-simulated child pornography?" The two extremes would be if the courts were to declare all pornographic material as protected or unprotected, but either would trigger severe backlashes from the public as to make it unfeasible. Ultimately, as the government has a vested interest in stopping child pornography for the public interest, it will have to maintain an active neoliberal role in this regard. Libertarian rulings such as Ashcroft would only seem to run contrary to the government's goals, and ultimately serve no purpose at all.
-David
Bibliography
[1] http://en.wikipedia.org/wiki/Child_pornography_laws_in_the_United_States
[2] http://en.wikipedia.org/wiki/New_York_v._Ferber
[3] http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=00-795
[4] http://www.firstamendmentcenter.org/speech/internet/topic.aspx?topic=virtual_childporn
[5] http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=06-694
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Your post reminded me of an article I read a few months back about a ban in Australia on small-chested women in pornography. The argument behind the ruling was that women depicted in pornography smaller than a B-cup were appealing to pedophilia and child pornography by appearing underage. Obviously this is not an effective way in stemming child pornography , and the mainly the law is simply insulting. It insinuates both that small-chested women look like children and that people who are attracted to women like this are pedophiles.
ReplyDeleteHow does that actually help in protecting children? By sending the message to young girls that a perfectly normal body type is only appealing to pedophiles? Sorry, little bit of a tangent, but that law is just ridiculous.
Anyways back to your past on virtual child pornography. I agree that it seems very difficult to define what it means to look underage. It seems like this is what the Australia law tried to do, although not successfully. And the Williams case that takes into account the intent of the distributor is pretty much guaranteed to fail. I think your last paragraph laid it out well. Either way, this problem is very hard to solve and any law will not be enough for someone.