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Act’s prohibition on simulated child porn is unconstitutional

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From the Winter 2000 issue of The News Media & The Law, page 23.

From the Winter 2000 issue of The News Media & The Law, page 23.

The Child Pornography Protection Act’s prohibitions against computer-generated child pornography violate the First Amendment, according to a mid-December decision of a split federal Court of Appeals panel in San Francisco (9th Cir.).

The court held that the government did not demonstrate a compelling justification for “regulating sexually explicit materials that do not contain visual images of actual children.” According to the court, the act impermissibly criminalizes “the use of fictional images that involve no human being, whether that person is over the statutory age and looks younger, or indeed, a fictional person under the prohibited age.”


Congress passed the Child Pornography Prevention Act (CPPA) in 1996. The CPPA expands upon existing laws to combat the use of computer technology to produce pornography containing images that appear to be children. It marked a change in the criminal regulatory scheme, shifting the law enforcement focus toward the illegality of any “visual depiction” that “is, or appears to be, of a minor engaging in sexually explicit conduct.”

The premise underlying the CPPA is the asserted devastating impact of such images on the children who may view them and the idea that real, as well as virtual, child pornography increases the activities of child molesters and pedophiles.

The CPPA defines child pornography as “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct.” The CPPA bans sexually explicit depictions that appear to be minors and visual depictions that are “advertised, promoted, presented, described or distributed in such a manner that conveys the impression” that they contain sexually explicit depictions of minors.

The Free Speech Coalition is an association of businesses involved in the production and distribution of “adult-oriented materials,” including artists and photographers. The coalition filed a lawsuit in federal court in San Francisco, asserting the CPPA violated the First Amendment and that enforcement of the CPPA must be blocked. The suit was thrown out in August 1997, and the coalition appealed to the U.S. Court of Appeals in San Francisco (9th Cir.).

The coalition argued that where the statute fails to define “appears to be” and “conveys the impression,” it is so vague that a person of ordinary intelligence cannot understand what is prohibited.

The government responded that the District Court was right in finding that the law is content-neutral. It argued that Congress properly enacted the CPPA to address the secondary effects of speech appearing to depict children’s sexual activity.

In December 1999, a 2-1 majority of the panel held that two sections of the CPPA do not pass constitutional muster and must be stricken, although the balance of the CPPA is constitutional.

The appellate panel held that the CPPA provisions were content based because they expressly aimed to curb a particular category of expression — child pornography — by singling out the type of expression and banning it. Blanket suppression of an entire type of speech is a content-discriminating act, according to the court, and is presumptively unconstitutional.

The appellate court found that the state interest in protecting children cannot justify the criminal proscription when no actual children are involved in creating the images. The court concluded that the CPPA provisions criminalized the use of fictional images that involve no human being and are, or can be, entirely the product of the mind. The court held that the proper focus of analysis is on the harm to the children actually used in the production of the materials.

Additionally, the court found the CPPA unconstitutionally vague because it did not give sufficient guidance to a person of reasonable intelligence as to what it prohibits. It stated that the phrases “appears to be a minor” and “conveys the impression” are highly subjective.

Finally, it found the CPPA unconstitutionally overbroad because it bans material — non-obscene sexual expression that does not involve actual children — that has been afforded constitutional protection.

In dissent, Judge Warren Ferguson wrote that “virtual child pornography should join the ranks of real child pornography as a class of speech outside the protection of the First Amendment” and that the statutory terms “appears to be” and “conveys the impression” are neither substantially overbroad nor void for vagueness. He noted that the statute clearly applies only to photographic images marketed or distributed as child pornography, and specifically exempts actual images of consenting adults who may appear to be underage. (The Free Speech Coalition v. Reno)