High court overturns ban on 'virtual' child porn

Wednesday, April 17, 2002

WASHINGTON -- 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 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. 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.

Attorney General John Ashcroft said the ruling makes prosecution of child pornographers "immeasurably more difficult."

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

'An abomination'

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 high court sided with pedophiles over children," said Rep. Mark Foley, R-Fla., co-chair of a congressional caucus on missing and exploited children. "This decision has set back years of work on behalf of the most innocent of Americans."

Congress passed the law as a bulwark against then-emerging computer technology that allowed pornographers to simulate child sex without using actual children.

The law was intended primarily to stop pornography produced through computer wizardry not available when the court placed child pornography outside First Amendment protection in 1982.

Romeo and Juliet

But moviemakers and other artists complained that the law also swept up scenes such as those in works Kennedy named, where youthful sex is pantomimed or is filmed using adults disguised as children.

"Teen-age sexual activity and the sexual abuse of children have inspired countless literary works. William Shakespeare created the most famous pair of teen-age lovers, one of whom is just 13," Kennedy wrote, referring to "Romeo and Juliet."

"In the drama, Shakespeare portrays the relationship as something splendid and innocent," yet modern staging of the play could run afoul of the anti-child pornography law, Kennedy suggested.

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

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