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US Supreme Court's decision on child pornography - A dark day!
by Tom Strode

WASHINGTON (BP)--The U.S. Supreme Court dealt Congress a defeat in the legislative effort to curb child pornography. The justices announced April 16 they had voted to invalidate portions of the Child Pornography Prevention Act, a 1996 federal law t
The high court voted 6-3 to strike down a provision that banned visual depictions, including computer-generated images, that appear to be of minors engaged in explicit sex. The court, with Associate Justice Sandra Day O'Connor joining the majority, voted 7-2 against a section that prohibited sexually explicit images that are promoted or presented as involving children.

The two provisions under consideration restrict legal speech, thereby making them "overbroad and unconstitutional," Associate Justice Anthony Kennedy wrote for the majority.

Opponents of child pornography chastised the justices.



"This decision by the Supreme Court marks a dark day for the court and an even darker day for the nation's children," said Richard Land. "This egregious and dangerous decision is one more sad illustration of the extent to which we have become a society that champions the so-called rights and privileges of adults over the protection and welfare of children.



"Child pornography, virtual or otherwise, leads people into addiction to child pornography," Land said. "It will incite some adults to sexually molest children and will often be used as part of the molestation itself. This is undeniable based on both the existing research and the testimony of convicted child molesters. I don't know what the justices could have been thinking, but it wasn't about the welfare of the nation's children."



Rep. Mark Foley, R.-Fla., cochairman of the Congressional Missing and Exploited Children's Caucus, said in a written statement, "I'm deeply disappointed the high court sided with pedophiles over children. Whether in movies or photographs, it doesn't make a difference whether or not the person engaged in sex is actually a child. If it looks like a child and is said to be a child, pedophiles have found their fix -- and their search for true child pornography will only be enhanced."



Attorney General John Ashcroft expressed disappointment with the ruling, saying it made the Justice Department's "ability to prosecute those who produce and possess child pornography immeasurably more difficult."



"However, I am undeterred in my resolve to protect our children from the pornographers and other predators who would prey on their innocence," Ashcroft said. "I would warn the child pornographers and others who exploit our children that they will find little refuge in today's decision. We will continue to use every available resource to identify, investigate and prosecute child-pornography cases to the fullest extent of the law."

Ashcroft said he would work with Congress to revise the law.



Supporters of the law contended the ban on "virtual" child porn is necessary to stymie the demand for such sexual images and to aid prosecutors in child-pornography cases in which defendants argue the images are not of real children. CPPA backers also argued "virtual" child porn is used by pedophiles to lure children into sexual encounters and into participating in the production of child pornography.



Critics of the measure said it could result in restrictions on more legitimate works.

The majority opinion in Ashcroft v. Free Speech Coalition expressed that very concern. Recent movies such as "Traffic" and "American Beauty" may include a single sequence that could be subject to the law "without inquiry into the work's redeeming value," Kennedy wrote for the majority. "This is inconsistent with an essential First Amendment rule: The artistic merit of a work does not depend on the presence of a single explicit scene.



"The government may not suppress lawful speech as the means to suppress unlawful speech."

A previous court decision upholding a law against child pornography protected children actually involved in its production, but children are not victimized in this case, Kennedy wrote.

The majority rejected Congress' concern that "virtual" child porn incites adults to abuse children sexually. "The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it," Kennedy wrote.



Of the argument pedophiles use "virtual" porn to seduce children, Kennedy said candy and video games "might be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused."



Joining Kennedy and, in one case, O'Connor in the majority were Associate Justices John Paul Stevens, David Souter, Clarence Thomas, Ruth Bader Ginsburg and Stephen Breyer.

Chief Justice William Rehnquist and Associate Justice Antonin Scalia dissented in both portions of the court's decision.



In his dissent, Rehnquist said the CPPA's goal of guaranteeing the enforcement of child porn laws "is a compelling one. The statute need not be read to do any more than precisely this, which is not offensive to the First Amendment."



Jan LaRue, senior director of legal studies for Family Research Council, called the court's concern about mainstream movies being prosecuted "abject nonsense."



"All the court needed to do is determine the reach of the statute and exclude the kinds of images to which it could not apply," LaRue said in a written release. "That's the court's job and by failing to do it, they've failed children and left them vulnerable to sexual predators. That the Supreme Court of the United States can entertain the notion that virtual images of children being sexually violated has 'value' that needs protection is an abomination."



Another portion of the law remained viable. The justices did not consider a measure that bars computer morphing, which is the altering of photos of children to appear that they are engaged in sexual conduct.



A federal judge upheld the CPPA in California, but the Ninth Circuit Court of Appeals, based in San Francisco, reversed the decision. It was the only one of five federal appeals courts to reject the law. The First, Fourth, Fifth and 11th districts upheld it.



The high court will soon deliver another decision related to pornography and children. In this same term, the justices heard arguments in Ashcroft v. ACLU, which involves a 1998 federal law that bans commercial websites from making sexually explicit material available to minors. Congress passed the 1998 law, the Child Online Protection Act, after the court struck down a more expansive 1996 measure, the Communications Decency Act.

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