Congress and the courts cannot seem to agree on how to curb child pornography on the Internet. The new Child Pornography Prevention Act (“CPPA”) of 2002 provides that child pornography would include “such visual depiction [as] a computer image or computer-generated image that is, or appears virtually indistinguishable from, that of a minor engaging in sexually explicit conduct.” In June, the U.S. House of Representatives voted 413 to 8 for a bill that would outlaw “morphed” or virtual child pornography. The Senate is considering a similar bill but has not voted on it. These steps come after a preceding 1996 congressional bill – also called the Child Pornography Prevention Act – was ruled unconstitutional by the U.S. Supreme Court in April 2002, namely for First Amendment arguments.
Congress has made other attempts at such a law. For example, Congress passed the Communications Decency Act (“CDA”) of 1996, which was Congress’ first attempt to censor speech online. The CDA prohibited posting indecent materials in a public forum on the Internet. In 1997, the Supreme Court unanimously ruled that the CDA would unconstitutionally restrict speech on the Internet. The CDA was followed by the Child Online Protection Act (“COPA”) of 1998. Both Acts were designed mainly to protect children from viewing explicit material on the Internet. While the 1998 version is narrower than its predecessor, it still contains much of the same unconstitutional restrictions. The case against COPA is currently on remand in the Third Circuit to consider possible restrictions on constitutionally protected speech.
Additional attempts at protecting children from exposure to pornography have also proven problematic. The most common effort – often imposed by organizations offering public access to computers and the Internet, such as libraries – is through filtering software. Under the Children’s Internet Protection Act (“CIPA”) of 2001, which was ultimately ruled unconstitutional, public libraries were forced to install filtering software or lose federal funding. Filtering software bars the user from viewing “restricted” Web sites through an automated text classification system. Thus, the blocked Web sites may contain pornography; however, they also may contain innocuous information on topics such as breast cancer. A public library in Ohio can attest to the inaccuracies of filtering after recently finding itself blocked on its own system after installing net filtering software. The Flesh Public Library had its own site blocked after the program blocked sites with the word “flesh.” However, rather than considering the implications of the software, the library simply changed the name of the site.
Already this year the Supreme Court has ruled that Congress' 1996 attempt at banning virtual porn – via the CPPA– violated the First Amendment. “[T]he speech ban is not narrowly drawn. The objective is to prohibit illegal conduct, but this restriction goes well beyond that interest by restricting the speech available to law-abiding adults,” Justice Kennedy said in the majority opinion. The Court also argued that even Hollywood movies could fall under the provisions of the statute, including popular films such as “American Beauty” and “Traffic.” According to the Court, both movies “explore themes within the wide sweep of the statute's prohibitions.”
In the Oscar-winning film “American Beauty,” a teenage girl engages in sexual relations with her teenage boyfriend, and another yields herself to the gratification of a middle-aged man. The film also contains a scene where, although the movie audience understands the act is not taking place, one character believes he is watching a teenage boy performing a sexual act on an older man. Likewise, in “Traffic,” a 16-year-old girl’s drug addiction leads her to a filthy room to trade sex for drugs.
The Court went on to say that anyone in possession of either film “would be subject to severe punishment without inquiry into the work's redeeming value. This is inconsistent with an essential First Amendment rule: The artistic merit of a work does not depend on the presence of a single explicit scene.” Ultimately, the Court held that the language of the 1996 Act – namely 18 U.S.C. §§2256(8)(B) and 2256(8)(D) – was overbroad and unconstitutional.
In response to the ruling, Congress has amended the 2002 Act by striking §2256(8)(D) and by changing the wording of §2256(8)(B). According to the 2002 Act, computer images of child pornography must be “virtually indistinguishable” from those of real images, whereas the 1996 act only required that the computer images “appear” to be those of real images.
Whether such changes – should they be passed into law – are narrow enough to satisfy free speech protected under the First Amendment remains to be seen. However, it is doubtful that the slight changes made by Congress for the 2002 bill are enough to satisfy the courts. As the use of the Internet continues to grow, the courts have no choice but to analyze issues of children, the Internet, and free speech. See United States v Am. Library Association (ruling the CIPA unconstitutional on First Amendment grounds). The courts are reluctant to prohibit speech that may be protected by the Constitution, and many of the recent rulings fall in favor of First Amendment rights. While Congress’ intention of protecting children is noble, it will have to work harder to express that intention without inhibiting constitutionally protected speech.
RELATED LINKS:
Bush and the 2002 CPPA news Coverage
More on Bush and the 2002 CPPA
The First Amendment and "Virtual" Child Pornography
Online Privacy Protection Act of 1998
http://www.cdt.org/speech/copa
United States v Am. Library Ass’n 2002 U.S. Lexis 8330.
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