Virtual child pornography ruling protects innocents

Within days after the car-theft drama “Gone in 60 Seconds” premiered, a Buffalo, N.Y., man stole a car, led police on a chase through rush-hour traffic, then abandoned the car to crash, driverless, into a house.

And if it were up to the Justice Department, the movie would be to blame.

At least, according to the line of argument the government presented the Supreme Court to defend the 1996 Child Pornography Prevention Act’s prohibition of “virtual” child pornography – produced, for example, with youthful-looking adults or computer-simulated children. But the court wisely saw through the flawed analogies and misplaced concerns underlying the government’s case and held last week that the CPPA’s language prohibits constitutionally protected speech.

The government principally justified the CPPA by arguing virtual child pornography could lead to real-world child abuse and exploitation. But as the court correctly points out, that harm is a speculative future event that depends far more on the offender’s character and circumstances than on any inherent quality of pornography. The act thus “prohibits speech that records no crime and creates no victims by its production.” Indeed, the very case the government relied on for the constitutionality of banning child pornography, New York v. Ferber, found a distinction between real and virtual pornography.

The Supreme Court has set out a comprehensive, albeit vague, test defining obscene works as those that appeal to “prurient interests,” offend contemporary community standards and lack literary, artistic, political or scientific value. Yet none of these stopped Congress from enacting, or the Justice Department from defending, an all-encompassing prohibition on every image that “appears to be” a minor engaging in a sex act or “conveys the impression” such an act is depicted.

The government’s lawyers argued the law does not prohibit speech but merely forces defendants to prove a questionable scene or image does not feature minors. This reading entirely defeats the purpose of the Constitution’s free-speech guarantees, creates a criminal offense for which citizens are presumed guilty until proven innocent, and violates the hallowed legal rule that a criminal statute should always be construed in the defendant’s favor. Additionally, as the Supreme Court’s majority correctly pointed out, this defense provides no protection for people who merely possess a questionable depiction – such as a copy of a movie or a downloaded picture – and have no way to prove the ages of those involved.

The government’s legal position makes as little sense as blaming 1991’s psycho-killer hit “The Silence of the Lambs” for that year’s record-shattering nationwide homicide outbreak. “The objective is to prohibit illegal conduct,” Justice Anthony Kennedy wrote for the majority, “but this restriction goes well beyond that interest by restricting the speech available to law-abiding adults.” Had the court not stopped Congress’ well-intentioned recklessness, far more than lambs could have been silenced by this law’s disregard for protecting controversial speech.