The Child Pornography Prevention Act of 1996 – that prohibited child pornography to sexually explicit images that depict minors but are produced without using any real children – was challenged. The government tried to justify the Act by stating that even simulated child pornography could encourage sexual abuse of children.
The prospect of crime by itself does not justify laws suppressing protected speech. Speech may not be prohibited because it concerns subjects offending our sensibilities.
The Child Pornography Prevention Act of 1996 (CPPA) prohibited child pornography to sexually explicit images that depict minors but are produced without using any real children, by using adults who look like minors or by using computer imaging. Specifically, Section 2256(8)(B) prohibited any visual depiction that is or appears to be a minor engaging in sexually explicit conduct. The government said that the consumption and use of even simulated child pornography could encourage sexual abuse of children.
Does prohibiting a child pornography to sexually explicit images that depict minors but are produced without using any real children violate the First Amendment?
Yes, the Child Pornography Prevention Act of 1996 (CPPA) proscribes a substantial amount of speech that falls outside the Court’s rationale in its precedents. The CPPA prohibits speech despite its serious literary, artistic, or scientific value and proscribes the visual depiction of an idea that is a fact of modern society. The CPPA goes too far in prohibiting a film that contains no sexually explicit scenes involving minors if the title or trailer conveys the impression that scenes of sexually explicit conduct would be found in the movie.
Congress has a compelling interest in ensuring the ability to enforce prohibitions of actual child pornography and the Court shall defer to such interest. While serious First Amendment concerns may arise if the Government gets the power to prosecute someone for mere distribution or possession of a film of artistic value, the CPPA only seeks to regulate visual depictions of sexual images. The definition only reaches the sort of “hard core of child pornography” which is entitled to no protection.
The Government’s justification for CPPA lies in the prosecution rationale that persons who possess and disseminate pornographic images of real children may escape conviction by claiming that the images are computer-generated. However, the Government’s assertion is not supported by any findings provided by the defendants. The Government may be entitled to enacting a regulation of virtual child pornography only when technology evolves to the point where the Government may no longer be able to enforce actual child pornography laws.
Ferber prohibited displaying images that are themselves the product of child sexual abuse. However, the CPPA prohibits speech that records no crime and creates no victims by its production. Despite the Government’s assertion that the images can lead to actual instances of child abuse, the causal link is contingent and indirect. The harm does not necessarily follow from the speech, but depends upon some unquantified, potential for subsequent criminal acts. Therefore, the CPPA abridges the right to free speech and thus shall be held unconstitutional.