Justice explains ruling on `virtual' child porn

April 19, 2002

The following are excerpts from an opinion by Supreme Court Justice Anthony M. Kennedy ruling Tuesday in Ashcroft vs. Free Speech Coalition, which overturned provisions of the Child Pornography Prevention Act of 1996:

We consider in this case whether the Child Pornography Prevention Act of 1996 (CPPA) abridges the freedom of speech. The CPPA extends the federal prohibition against child pornography to sexually explicit images that appear to depict minors but were produced without using any real children. The statute prohibits, in specific circumstances, possessing or distributing these images, which may be created by using adults who look like minors or by using computer imaging. The new technology, according to Congress, makes it possible to create realistic images of children who do not exist. ...

By prohibiting child pornography that does not depict an actual child, the statute goes beyond New York vs. Ferber (1982), which distinguished child pornography from other sexually explicit speech because of the state's interest in protecting the children exploited by the production process. ...

The principal question to be resolved, then, is whether the CPPA is constitutional where it proscribes a significant universe of speech that is neither obscene under Miller [vs. California] nor child pornography under Ferber. ...

These images do not involve, let alone harm, any children in the production process; but Congress decided the materials threaten children in other, less direct, ways. ... While even minor punishments can chill protected speech, this case provides a textbook example of why we permit facial challenges to statutes that burden expression. With these severe penalties in force, few legitimate movie producers or book publishers, or few other speakers in any capacity, would risk distributing images in or near the uncertain reach of this law.

The sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people. In its legislative findings, Congress recognized that there are subcultures of persons who harbor illicit desires for children and commit criminal acts to gratify the impulses. ...

Congress may pass valid laws to protect children from abuse, and it has. The prospect of crime, however, by itself does not justify laws suppressing protected speech. ...

The CPPA prohibits speech despite its serious literary, artistic, political or scientific value. 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. Under the CPPA, images are prohibited so long as the persons appear to be under 18 years of age. This is higher than the legal age for marriage in many states, as well as the age at which persons may consent to sexual relations. ...

It is, of course, undeniable that some youths engage in sexual activity before the legal age, either on their own inclination or because they are victims of sexual abuse.

Both themes - teenage 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 years of age. In the drama [Romeo and Juliet], Shakespeare portrays the relationship as something splendid and innocent, but not juvenile. The work has inspired no less than 40 motion pictures, some of which suggest that the teen-agers consummated their relationship. ... Shakespeare may not have written sexually explicit scenes for the Elizabethan audience, but were modern directors to adopt a less conventional approach, that fact alone would not compel the conclusion that the work was obscene.

Contemporary movies pursue similar themes. Last year's Academy Awards featured the movie Traffic, which was nominated for Best Picture. The film portrays a teen-ager, identified as a 16-year-old, who becomes addicted to drugs. The viewer sees the degradation of her addiction, which in the end leads her to a filthy room to trade sex for drugs. The year before, American Beauty won the Academy Award for Best Picture. In the course of the movie, a teen-age girl engages in sexual relations with her teen-age boyfriend, and another yields herself to the gratification of a middle-aged man.

Our society, like other cultures, has empathy and enduring fascination with the lives and destinies of the young. Art and literature express the vital interest we all have in the formative years we ourselves once knew, when wounds can be so grievous, disappointment so profound, and mistaken choices so tragic, but when moral acts and self-fulfillment are still in reach.

Baltimore Sun Articles
|
|
|
Please note the green-lined linked article text has been applied commercially without any involvement from our newsroom editors, reporters or any other editorial staff.