Technology and the First Amendment

The major free speech case of the Term involved the Child Pornography Prevention Act of 1996, which banned (1) "virtual child pornography" produced without real children, and (2) images presented as child pornography, a response to modern computer technology that could create seemingly real images of children engaged in sexual behavior without any real children being involved. The definitions of "virtual child pornography" were quite broad, and could have been interpreted to include scenes in mainline films that had no pornographic quality. A coalition of various plaintiffs—including a trade association for the adult-entertainment industry, the publisher of a book advocating the nudist lifestyle, a painter of nudes, and a photographer specializing in erotic images—brought suit, claiming the overly broad definitions violated the First Amendment. The district court upheld the law, but the Court of Appeals for the Ninth Circuit reversed on the grounds that the law's provisions were insufficiently related to the state's legitimate interest in prohibiting pornography that actually involved minors.

The Supreme Court agreed in Ashcroft v. Free Speech Coalition (2002). The 6-3 majority opinion by Justice Kennedy held that virtual child pornography, unlike real child pornography, was not clearly related to the sexual abuse of children, as the causal link between such virtual images and actual instances of child abuse was indirect. In addition, some works in the category of child pornography might possibly have significant literary or artistic value. Perhaps most important, the government had failed to prove that the ban on virtual child pornography was justified on the various grounds the government had put forward, such as the possibility that pedophiles might use such pornography to seduce children or that such pornography might whet the appetites of pedophiles and encourage them to engage in illegal conduct.

In addition, the definitions of what constituted virtual child pornography were overbroad, and thus violated the First Amendment. The law relied on how the speech was presented, and not on what was depicted. It therefore did not meet the standards established in New York v. Ferber (1982), that allowed prosecution of those who promoted the sexual exploitation of children. Kennedy also pointed to movies such as Traffic, in which child prostitution was a legitimate part of the drama involving drug abuse and distribution.

Justice Thomas concurred in the judgment, but noted that if technology advanced to the point where it became impossible to enforce actual child pornography laws because the government could not prove that certain pornographic images were of real children, then the government might be able to enact a regulation of virtual child pornography that contained an appropriate affirmative defense or some other narrowly drawn restriction. The three dissenters all believed the law valid, and that the governmental interest in eliminating the sexual abuse of children in pornographic materials, met the Ferber test.

The case is another example of the Court, and the Congress, wrestling with how the mandate of the First Amendment can be applied in a modern technological age. The technology is rapidly approaching the point that concerned Justice Thomas, in which it would be impossible to tell a live person from a computer-generated image. One can be fairly confident that over the next decade or so, the Court's docket will have an increasing number of cases in which the justices are asked to apply partsnever even dreamed of by the Framers.


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