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Posted
on 16-Apr-02 08:40 PM
April 16, 2002
Supreme Court Strikes Down Ban on Virtual Child Pornography
By DAVID STOUT
WASHINGTON, April 16 — In a case that addresses some of the most fundamental issues of technology and morality, the United States Supreme Court ruled today that Congress went too far in 1996, when it passed a law that treats "virtual" or computer-generated child pornography as the real thing.
The court held, 6 to 3, that the Child Pornography Prevention Act is overly broad and unconstitutional, despite its supporters' arguments that computer-generated smut depicting children could stimulate pedophiles to molest youngsters.
"The sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people," Justice Anthony M. Kennedy wrote in the majority decision. Nevertheless, he said, if the 1996 law were allowed to stand, the Constitution's First Amendment right to free speech would be "turned upside down."
"Congress may pass valid laws to protect children from abuse, and it has," Justice Kennedy wrote. "The prospect of crime, however, by itself does not justify laws suppressing protected speech."
Attorney General John D. Ashcroft expressed anger and disappointment late this afternoon over the ruling, saying that it had made it "immeasurably more difficult" to go after child pornographers but that he was "undeterred in my resolve" to pursue those who exploit children.
The High Court voided two sections of the law, but a third section was not challenged and is still in force. It bans some computer alterations of innocent pictures of children — grafting a child's school picture onto a naked body, for example.
The 1996 law allows for prison sentences of up to 5 years for the first offense of possession of banned material and up to 30 years for repeat offenders who produce it.
When the case was argued last Oct. 30, the justices expressed different viewpoints on what might be indecent, and under what circumstances, and how the government should address such considerations. With the dizzying advance in computer technology, it becomes more difficult to determine what is or is not "real," at least on the movie screen.
Rejecting the argument that virtual child pornography ought to be banned because it might whet the appetite of molesters, the Supreme Court's ruling declared, "The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it."
Justice Kennedy wrote: "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought. . . . The court's First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct."
Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined Justice Kennedy, while Justice Clarence Thomas wrote a separate concurring opinion.
Chief Justice William H. Rehnquist wrote the dissent. "Congress has a compelling interest in ensuring the ability to enforce prohibitions of actual child pornography, and we should defer to its findings that rapidly advancing technology soon will make it all but impossible to do so," he wrote.
Chief Justice Rehnquist said Congress saw a compelling need to extend the definition of child pornography to embrace computer 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," the chief justice wrote. Justice Antonin Scalia joined in his dissent. Justice Sandra Day O'Connor sided with the majority in some facets of the case and with the dissenters in others.
The Attorney General said the Justice Department would work with federal prosecutors across the country to see that as few cases as possible were affected by today's ruling. Some child-pornography cases may be refiled under existing obscenity statutes whose status is not in question, he said.
"Children may be only 25 percent of our population, but they are 100 percent of our future," Mr. Ashcroft said.
A former senator from Missouri, the Attorney General said he was committed to working with Congress to devise new computer-pornography legislation that would survive judicial scrutiny.
Other conservatives were furious over the majority decision. "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," Jan LaRue, legal studies director at the Family Research Council, told The Associated Press.
"The high court sided with pedophiles over children," Representative Mark Foley, a Florida Republican who is co-chairman of a Congressional caucus on missing and exploited children, told the A.P. "This decision has set back years of work on behalf of the most innocent of Americans."
The majority ruling upheld a December 1999 opinion by the United States Court of Appeals for the Ninth Circuit, in San Francisco, and overturned a federal district court decision. Other appeals courts have upheld the law, however. The Clinton and Bush administrations both defended the law in court.
The opinions in the case, Ashcroft v. Free Speech Coalition, No. 00-795, can be read on the Supreme Court's Web site: www.supremecourtus.gov.
The ruling today is a victory for producers of sexually explicit material — what some people call adult entertainment and others call filth. The Free Speech Coalition, a trade group for makers of sexually explicit films, has said that it opposes child pornography, but that the 1996 law could stifle legitimate artistic expression.
And there was agreement on both sides today that art depicting sexual activity by minors, even sexual abuse of children, does not automatically run against "community standards" of decency. Two recent, highly acclaimed films were cited to make that point, "American Beauty" and "Traffic."
Justice Kennedy also cited an earlier work of art. "Both themes — teenage sexual activity and the sexual abuse of children — have inspired countless literary works," he wrote. "See Romeo and Juliet."
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