Virtual Child Pornography: Because Am I > Protecting our Children [1 of 8]

Before getting into Congress’s attempts at regulating virtual child pornography (VCP), it is helpful to understand what is VCP.  The literature actually does not really define it, but most pieces literature on the topic does describe it.

VCP does not use real children or images of “real identifiable children.”  Dannielle Cisneros, “Virtual Child” Pornography on the Internet: A “Virtual” Victim?, 2002 Duke L. & Tech. Rev. 0019 (2002).  Rather, VCP is created entirely by computer.  See Stephen T. Fairchild, Note, Protecting the lease of these: A new approach to child pornography pandering provisions, 57 Duke L.J. 163, 179 (2007) (stating that VCP may lower a child’s inhibitions to “prepare” them for molestation).

Morphing is a process “that allows a computer to fill in the blanks between dissimilar objects in order to produce a combined image.” Cisneros, at n.2.  Morphing begins with an image of a real child and adds or removes features to change the appearance and create a virtual image.  Richard Bernstein, Note and Comment, Must the children be sacrificed: The tension between emerging imaging technology, free speech, and protecting children, 31 Rutgers Computer & Tech. L.J. 406, 411 (2005).   Despite using images of real children, the end product is actually virtual because the “children” (or pixels, however you categorize it) do not actually exist.  Harry A. Valetk, Fate of children’s online protections considered, 9/11/2001 N.Y.L.J. 1, (col.1).  The original child is unidentifiable.  Shepard Liu, Ashcroft, virtual child pornography and First Amendment jurisprudence, 11 U.C. Davis J. Juv. L. & Pol’y 1, 3 (2007).

Is morphing considered VCP?  We really do not know yet.  The Supreme Court’s decision in Ashcroft v. Free Speech Coalition, et al. did not include or exclude morphing in its discussion (I will discuss this case in later blog entries). In discussing Senate findings that led to creation of the Child Pornography Prevention Act of 1996 (CPPA), Bernstein explains that the Senate considered morphed images to be encompassed by the notion of VCP since it could be used to seduce children, to whet the appetites of pedophiles, and to trade in the child pornography marketplace.  Bernstein, at 412-13.  Other scholars consider VCP to include images that are purely computer-generated, images that are morphed, and images that involve youthful-looking adults.  See Liu, at 2.

Prior to enactment of the CPPA, prosecutors had to prove that the victims of child pornography were actual people and not digitized images.  Technology made this difficult since it allowed for morphing and in some cases, purely fake images that look real.  Even trained law enforcement agents could not always distinguish between a virtual child and a real child.  Fairchild, at 179.   These concerns led to the enactment of the CPPA (and ultimately the PROTECT Act).

While the ink was practically still drying on the CPPA, the Court struck it down as unconstitutional.  But is VCP really something that should be protected by the First Amendment, especially where computer images are indistinguishable from real photos?  Even if the VCP is entirely virtual?  Is VCP art, as some opponents of the CPPA suggest?  These are some debatable questions that I will seek to discuss throughout this blog series.

Stay tuned…Next blog I will discuss the CPPA.

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~ by hollyufl on October 5, 2010.

4 Responses to “Virtual Child Pornography: Because Am I > Protecting our Children [1 of 8]”

  1. Very interesting issue. First Amendment issues always fascinate me. I could see this one going either way:

    On the one hand, any barrier to creating and transferring child pornography is obviously a good thing. The less of it there is, the better, and I fully support large penalties for engaging in these reprehensible activities. This point does not require much elaboration.

    But on the other hand, the First Amendment is difficult to overcome. I could see an argument made that this technology allows pedophiles an outlet for their perversions, thereby lowering the chance that they would subject actual children to any involvement. Further, the risk of the legislation being overbroad is great. Crafting a statute that is effective enough to stop the targeted conduct, while respecting First Amendment requirements is tremendously difficult, and as the recent Crush Videos case decided by the Supreme Court showed, the Court is still likely to err on the side of protection.

    Another factor to consider is that child pornography is already the exception to practically every applicable legal rule. It’s the only issue where evidence supporting a propensity inference is allowed (i.e., you may not introduce evidence that a person stole in the past to support the finding that they stole in this instance, but you can introduce evidence that the person was involved with child pornography in the past to prove that they were in this instance). It’s also in the narrow category of issues where liability is strict, even for members of the protected class. If a minor takes a picture of his or her private parts and texts it to a significant other, the minor is guilty of trafficking in child pornography.

    Despite the First Amendment issues involved, I would not be surprised if a Court decides that the overwhelming American sentiment against child pornography outweighs any expressive elements this conduct would involve. But their history of erring on the side of protection makes the outcome of this question anyone’s guess.

  2. I see this issue as being a very difficult one for both free speech advocates and opponents of child pornography.
    On the one hand, it’s hard to argue anything that would allow child pornography to continue/survive in any form. An all out prohibition feels, intuitively, like the right thing to do. But, this argument becomes more complicated with the involvement of Constitutional rights. Exactly what does the First Amendment protect – are pixelated morphs or CG characters protected speech when they’re engaging in an activity that is considered so morally reprehensible in this society? Though courts usually err on the side of protection, there’s a balance consideration that has to be done between preventing child pornography in any form and First Amendment rights. Society may determine, and the Supreme Court may agree, that the balance swings in favor of preventing pornography, unless the statute implicating this goal turns out to be overbroad. If the CPPA can be used to prevent material that society considers less reprehensible, it would become yet another example of a bad legislative fit. I think the real trouble here lies in delineating the spectrum of least acceptable material to acceptable material.

  3. I think VCP should get the “I’ll know it when I see it” standard. If it looks real to a reasonable person, it shouldn’t be allowed. If it looks fake and computer generated to a reasonable person, it should be protected.

  4. I looked into AmJur for summaries on this material earlier in this semester, and I believe it stated generally that pornography that represents children in any nudity whatsoever required an artistic element.

    I do think that it’s extremely important to prevent true child pornography, so I can understand the strict rules that legislators would apply to VCP, in that it would seem giving someone an out or defense through VCP could lead to some “true” child pornography not being adequately prosecuted. It’s one of those subjects that understandably flies in the face of the first amendment.

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