Virtual Child Pornography: Arguments Against Criminalization

Attempts by Congress to criminalize virtual child pornography are not just misguided, but indicative of a misunderstanding of First Amendment jurisprudence. Virtual child pornography is the label for sexually explicit images of a minor that are created by a computer. Either an image of an adult is edited to appear more child-like, or an avatar is created to appear as a child. No actual children are involved in the creation of the images or avatars, and avatars are controlled by adults.

Congress attempted to criminalize virtual child pornography by passing the 1996 Child Pornography Prevention Act. The Act would have banned any image that “is, or appears to be” of a minor engaged in sexually explicit conduct. However, in 2002, the Supreme Court struck down the provisions of the CPPA that applied to virtual child pornography, holding that the provisions were not narrowly tailored or “intrinsically related” to the government interest of protecting minors from harm. Ashcroft v. Free Speech Coal., 535 U.S. 234, 250 (2002). In 2003, Congress modified those provisions and inserted them in the PROTECT Act, hoping that they could stand up to the less rigorous standards of obscenity law.

Where pornographic images of actual children are concerned, the government does not need to prove that the images are obscene (appealing to a prurient interest in the eyes of the average person, depicting patently offensive sexual conduct, lacking serious literary, artistic, political, or scientific value). The Supreme Court held in New York v. Ferber that the government’s interest in protecting minors from physical and psychological harm outweighed any First Amendment interests to material that would otherwise face an obscenity analysis under Miller. However, this public policy argument does not apply in the context of virtual child pornography, where no child is harmed via use of the image or avatar. Despite upholding the “pandering” provision of the PROTECT Act, I would hope that the Supreme Court would strike down provisions that criminalize virtual child pornography irrespective of analysis under Miller. In the least, the government would be unable to meet its burden under the third prong of Miller in the face of evidence that psychologists have used virtual child pornography to rehabilitate child abusers, certainly a practice with serious scientific and social value.

Even if the government could show that virtual child pornography is obscene, shouldn’t it still be protected by the First Amendment via the same rationale applied to run of the mill pornography? Obscenity law doesn’t seem to apply to the “entertainment” of general pornography. Much of the pornography protected by the First Amendment would easily fall within the definition of obscenity, particularly on the grounds that it is patently offensive. If we are willing to side-step obscenity laws for the minority segment of the population that enjoys mixing sex with defecation, shouldn’t the First Amendment also protect sexual acts between two consenting adults, despite the fact that one is disguised as a child? We criminalize sex between two adults because we object to the notion that an adult could be stimulated by the fact that one of them looks underage. That logic would justify criminalizing sex with a real world adult that happens to look underage. It could be extended to criminalize the sale of school-girl costumes, or even stage-makeup that smoothes skin imperfections.

We have a hysterical reaction to the notion of child abuse, and I wouldn’t suggest that this should be eliminated. Rather, as policy makers we need to understand that our emotional responses are not reasoned, considerations of what best serves society, and how those best interests fit within our legal framework. Virtual child pornography is no more harmful to children than are movies and television shows that depict the murder of children. Is Congress drafting legislation to shut down production of Law and Order? It seems that any rational consideration of the issue of virtual child pornography would have revealed that the potential for the medium to serve as a tool to fight the very evil Congress wants to curtail. Virtual child pornography could provide a legal venue for adults to act out sexual fantasies with children without harming an actual child. Obviously, this is a politically inconvenient argument. It would be a matter of time before a fan of virtual child pornography induced an actual child into virtual or real world sexual activity. However, it may be possible that as a whole, users of virtual child pornography could be dissuaded from activities with real children that they may have otherwise pursued.

In the absence of any indicia that virtual child pornography creates a market for actual child pornography, the First Amendment interests involved in creating and viewing virtual child pornography certainly outweigh any potential government interest in criminalizing the creation of those images. More, even in the face of evidence that virtual child pornography does create a market for actual child pornography, it should still be protected by the First Amendment. Arguing that virtual child pornography creates a market for actual child pornography creates a slippery slope. Miley Cyrus included a pole dance in her September performance at the Teen Choice Awards; should she be arrested for encouraging pedophiles to sexualize teen girls? Plenty of activities that create a market for child pornography are protected by the First Amendment. Unless the activity itself directly results in harm to an actual child, the government should be required to meet the burden of strict scrutiny in prohibiting the protected speech.

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~ by lana3 on November 2, 2009.

6 Responses to “Virtual Child Pornography: Arguments Against Criminalization”

  1. Reading through the blog posts and course materials this week, I was reminded by the expression “If it walks like a duck, quacks like a duck, and looks like a duck, it’s a duck.” I would argue that virtual worlds still fall outside of mainstream culture. As a result, when most people see what moves like a child and looks like a child engaging in sexual activities with what acts like an adult and looks like an adult, the instinctual reaction is that it should be labeled as child pornography. I agree absolutely with the comment that, at least in America, we have developed hyper-sensitivity (to the point of hysteria) to identifying and punishing child abuse. Society demands, and the criminal justice system tries to oblige, that the ideal of childhood innocence be protected.

    If the purpose of criminalizing child pornography is to protect that ideal, taking it to its logical conclusion, the “children” represented by avatars is the virtual equivalent to performing sexual acts with a minor. The news coverage of activities taking place in “Wonderland” are an example of the outrage that people feel when they imagine “children” being taken advantage of. Since the “real world” laws regarding sexual exploitation can’t apply to the virtual interactions, child pornography is the closest charge that prosecutors can make stick to punish offenders and sate public outrage.

    Intellectually, I understand the arguments about how constitutional boundaries protecting freedom of speech are being blurred and ignored on this issue, but the sheer disgust society has drilled in about the vileness of child pornography is almost too strong to overcome.

    Frankly, I don’t buy into the argument of how allowing adults to engage in sexual “virtual ageplay” will decrease demand for pornographic images of children and sexual predation on children. I don’t think a thorough body of data exists on the subject yet, but my intuition tell me that it would be just as likely that interactions in a virtual environment may whet the appetite for adults to try their fantasies in the flesh and prey on real children. In that respect, I would worry that virtual ageplay in virtual environments could serve as a sort of “gateway” crime. If the argument is still being made that freedom of speech protections should apply, couldn’t we reach a point where the government interest in the public safety and well-being of children outweighs it?

    Throughout the discussion, there seems to be an assumption that freedom of speech protections should apply because virtual sexual acts are occurring between adults and a childlike appearance of one (or more) parties. With each new wave of technology that washes over society, it seems as if younger and younger users become proficient in its use the quickest. If one of the avatars involved in these virtual sexual acts represents an actual child, does an invocation of free speech automatically become invalid? If so, isn’t it too much of a burden on those who are monitoring for “pornography” to determine if anonymous avatars are adults or children?

  2. While I can see the arguments on both sides, I would have to agree with both bloggers this week in that “virtual ageplay” should not be criminalized. What two consenting adults choose to do sexually should not be the business of the government. If two adults chose to engage in ageplay in real life, could they be prosecuted under child pornography laws? I do not think so, and so they shouldn’t be for engaging in ageplay in virtual environments, especially because, for now at least, avatars look more like realistic cartoons than actual people.
    Also as to the suggestion that as younger generations become more technologically proficient, these younger avatars could actually be representative of young children, I think that the burden to keep such avatars from intermingling with adults falls on the creators of the virtual environments. Minors should not be allowed to enter areas where sexual activity occurs and the developers of these virtual worlds should police such policies, much like Linden Labs has a separate “island” for minors. The developers should not be held accountable if some technologically savvy young user finds a way around the system as long as they are putting forth a reasonable effort to keep minors and adults segregated.

  3. Virtual child pornography laws are necessary. Society has to protect children who cannot protect themselves. It does not matter how much technology is changing or how private the act of child pornography is, children need protection. Child pornography laws are created to protect children. Every single time a person uses technology to expose a child, it is wrong, and those people must be prosecuted. It does not matter if the act does not hurt an actual child, but it does hurt images of children. It is almost a moral ideal. Even if the image of the child being viewed is created or virtual, this is still exposing sexual images of children. Adults watch and enjoy cartoons, we all know that they are not real, but cartoons still entertain us. Likewise, the pedophile or a child pornographer who creates a sexually explicit image of a child, may still be aroused or entertained. This clearly puts children in danger. If we allow aviators and created child-like images, what is next? Every child pornography activity directly hurts children or society as a whole, and therefore it should be prohibited. If we allow virtual images, then this will cause a slippery slope in laws involving child pornography.

  4. I wonder if the possible constitutional violations in the PROTECT Act aren’t due so much to a *misunderstanding* of First Amendment jurisprudence as to a *willful blindness* to First Amendment jurisprudence. As you pointed out, Americans have reached a sort of fever pitch of moral outrage when it comes to child abuse. Just watch the nightly news and count the number of child abduction and abuse stories that get top billing over all the other atrocities that happen every day. I think Russell was right when she said we hate child pornography more than we hate murder. You pointed out in your last blog that severe disparities in child pornography sentencing are not being addressed, even though those disparities themselves are unlawful, because no one wants to champion the cause of a child pornographer. I think that even if the PROTECT Act could be struck down as unconstitutional, it will be a long time before it actually is struck down, because no one is going to want to litigate the issue. Our civil rights develop and are upheld only to the extent that we are willing to demand them. In this case, the right to engage in fantasies of sex with children is so profoundly unpopular that I’m afraid no one will have the guts to defend it in the current moral climate. Even if someone did take up the case, I wonder if the Act wouldn’t survive strict scrutiny at this point, since child welfare has already been declared a governmental interest of the highest order and to some extent it is a rather arbitrary decision whether a law is “necessary” to acheive a particular interest. After all, in
    the not so distant past, the Supreme Court has justified laws that burdened the fundamental rights of certain classes of people, laws which in this day and age would not have a snowball’s chance of surviving. I can’t help but think that’s partly because the moral climate has changed, and even the Supreme Court is not wholly deaf to the demands of the moral majority.

  5. While I can see both sides of the argument, I am not sure I agree with the statement that virtual child porn is victimless or harmless. While it may help some people to curb their real-life fantasies like one blogger mentioned, I think that it does much more harm than good because pedophiles can spread these images around without consequence. I think that leads to more people being exposed to child pornography (even if it’s not a real child), which will lead to REAL LIFE predation. I think that the pedophile who is inclined to produce and disseminate these images will not draw the line at virtual pornography. I think that the protection of children has to trump free speech in this instance, and that this would, in fact, pass the “incitement to imminent lawlessness.” If explicit images of children engaged in sex acts are not inciteful to a pedophile, I don’t know what is.

  6. I’m reminded of a Raising the Bar episode(the one with, surprise, child pornography). In the episode, a father is arrested for putting a photo of his young son who is in a bath on his personal social network site, allowing friends and family to view what he thought was an innocent and cute photo. A porn-site scooped the picture, and put it on its site for the more devious. The root of the problem in this case wasn’t that the father committed a crime, but rather, by placing a picture that could be deemed pornographic, he was facilitating a commission of a crime, and potentially allowing for worse to occur.

    That’s my feeling toward virtual child pornography. Yes, it’s fake. Yes, it’s not really a child in pornographic situations. But, the viewers who see it might think it’s real, might want it to be real. They might have kids. They might be in a position of authority around other people’s kids. They might see a child who looks like one of the fact images, and an obsession occurs. A thousand other possibilities exist, and to be honest, even if the probability of one of them occurring is slim to none, I think it’s worth it to ban it.

    Sure, the counter is it’s a slippery slope, that it’s a logical fallacy that I’m making. I say who cares. When it comes to actions that could irrevocable alter a child’s mind to the perversion of an adult, I say ban it. Child pornography, whether it be real or virtual, should be eradicated.

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