Justices to decide legality of `synthetic child porn'

Computers generate explicit images without real children

January 23, 2001|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON - The Supreme Court agreed yesterday to rule on the constitutionality of a 1996 law that bans computer-generated images of "virtual" children in sexually explicit poses, the latest law passed by Congress in its 24-year war against child pornography.

Since 1977, Congress has passed seven laws criminalizing the manufacturing and distribution of "visual depictions" of children engaging in sex acts. All but the latest of those was designed to protect real children from being used by pornographers.

The 1996 law was passed to deal with "synthetic child pornography." It was enacted after Congress decided that computer-generated images of imaginary children would be just as harmful, to children and to society in general, as images involving real children.

Even if no child was used to create a computer-drawn image of a child engaged in sexual conduct, Congress reasoned, pedophiles would be stimulated by virtual images to engage in sexual abuse of real children.

The law bans child pornography involving images that "appear to be" or that "convey the impression" that a child is engaging in sexually explicit conduct.

In 1999, the law was struck down by the 9th U.S. Circuit Court of Appeals, based in San Francisco, as a violation of the First Amendment right of free expression. The appeals court said the law "criminalizes the use of fictional images that involve no human being," images that are "entirely the product of the mind."

The appeals court said that though the creation of "virtual pornography" is the work of "foul figments of creative technology," it is still a form of expression that is protected by the First Amendment.

The ruling resulted from a challenge by the Free Speech Coalition, a trade group of businesses involved in producing adult-oriented materials, along with a publisher of nudist materials, a painter of nudes and a photographer whose work includes erotic images.

The Justice Department, in an appeal filed by the Clinton administration, asked the Supreme Court to uphold the 1996 law. The justices agreed to consider the plea and will hold a hearing in October and issue a decision next year.

Pension rights case

In a separate action yesterday, the justices turned aside a plea that they protect the pension rights of tens of thousands of older women.

Nine-hundred thirty telephone workers from Midwestern states argued in an appeal that they and thousands of others lost job benefits, such as early retirement, because their seniority status had been discounted for maternity leaves they took in years past.

The women took leaves for pregnancy or childbirth during a time when their employers discriminated against those taking time off for such reasons. The women were forced to take months off but received credit toward seniority for 30 days. Workers who took other forms of disability leave received full credit.

In 1979, Congress outlawed discrimination on the job based on pregnancy. But some companies, including the Bell System, did not alter their seniority credit system to make up for past discrimination against women who had taken pregnancy and maternity leaves.

The 7th U.S. Circuit Court of Appeals based in Chicago ruled in July that companies that base seniority on credits calculated in the past, even if the credits reflected differing treatment of pregnancy status, do not violate any of three federal laws. That is not a form of illegal sex discrimination, the appeals court decided.

The Supreme Court gave no reason for refusing to hear the workers' appeal, thus leaving the lower-court ruling intact.

Indian gambling

In another order yesterday, the justices agreed to decide an issue of importance to Indian tribes as they expand their lotteries and other forms of betting. A case involving two Oklahoma tribes tests whether Indian-run gambling revenue is subject to federal wagering taxes. A lower court ruled that the tribes must pay taxes on lottery winnings.

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