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Law banning ‘virtual’ pornography violates First Amendment

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  1. Prior Restraint

    NMU         NINTH CIRCUIT         Prior Restraints         Dec 22, 1999    

Law banning ‘virtual’ pornography violates First Amendment

  • The Child Pornography Protection Act’s prohibitions against computer-generated child pornography are unconstitutional and cannot be enforced in the Ninth Circuit.

A federal Court of Appeals panel in San Francisco (9th Cir.) held on Dec. 17 that a law banning computer-generated depictions of minors engaged in sexual conduct violates the First Amendment.

The 2-1 decision means that federal law enforcement officials cannot enforce portions of the 1996 Child Pornography Protection Act in the nine western states over which the court exercises jurisdiction.

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 CPPA 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.”

“[W]hile such images are unquestionably morally repugnant, they do not involve real children nor is there a demonstrated basis to link computer-generated images with harm to real children,” the court held. “Absent this nexus, the law does not withstand constitutional scrutiny.”

The court also ruled that the provisions in question are unconstitutionally vague and overbroad because “it does not give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, and fails to provide explicit standards for those who must apply it.”

Judges Donald Malloy and Sidney Thomas made up the court’s majority. Judge Warren Ferguson dissented, arguing that Congress provided compelling evidence that virtual child pornography causes harm to real children and that the provisions are not unconstitutionally overbroad or vague.

The decision conflicts with prior decisions from two other federal courts of appeal.

A trade association of businesses involved in the production and distribution of “adult-oriented materials” that calls itself The Free Speech Coalition brought the challenge to the CPPA.

(The Free Speech Coalition v. Reno; Counsel for Free Speech Coalition: H. Louis Sirkin, Cincinnati)

© 1999 The Reporters Committee for Freedom of the Press

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