Court upholds ban on electronically created 'kiddie porn'

FIRST CIRCUIT–A federal Court of Appeals in Boston (1st Cir.) held in late January that the Child Pornography Prevention Act (CPPA) passed by Congress in 1996 does not impinge on free speech rights by outlawing computer-generated, or “virtual,” child pornography and pornography depicting individuals who only “appear to be” minors.

Although the three-judge appellate panel recognized the act as one banning expression based on content, the panel found the CPPA properly advanced the compelling government interest of preventing child pornography because forms of virtual or apparent child pornography are as dangerous as actual images of children in sexually explicit situations.

The panel described the CPPA as an attempt to keep up with technological advancements and the evolution of “high-tech kiddie porn.” Because the act targets child pornography, which is a form of speech not protected by the First Amendment, it only had to “adequately define” prohibited conduct to avoid being unconstitutionally vague, the panel ruled.

In response to arguments that the CPPA’s provisions could render illegal otherwise legal adult pornography or even expressions generally accepted as artistic, the panel found the act clearly covers only images that are, as defined in the legislative record, “virtually indistinguishable to unsuspecting viewers from unretouched photographs of actual children engaging in identical sexual conduct.”

The panel found this definition of what the act outlaws to be neither overbroad nor vague and found the government’s interest in prohibiting computerized or apparent pornography to be “no less powerful than in instances where an actual child is actually used and abused during the production process.”

The panel did note, however, that if materials depicting a “youthful-looking adult” in a “non-obscene manner” were alleged to violate the CPPA, a First Amendment defense should be available. The panel did not define the parameters of such a defense though.

The panel’s decision overrules a March 1998 ruling from a federal District Court in Portland, Maine. The district court had found the test that the subject “appears to be” a minor was so subjective that it was unconstitutionally vague and overbroad. (United States v. Hilton)