VCP: b/c Am I > Protecting children [3 of 8]

(Part 3)

[Please listen to Eminem & 50 cent. Otherwise this will make no sense to you: Hickory dickory dock tickity tock tickety a little bit of the constitutionality/ mixed wit a little bit of the jiga jig kennedy, small pinch of Holly/ look at this, its just a blog diggity]


Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), held unconstitutional certain parts of the CPPA.  As a preliminary matter, it is important to note that this case does not address the issue of whether morphing is constitutional (if you don’t know what this is, you should have read my first blog).  The court states, “morphed images may fall within the definition of virtual child pornography, [but] they implicate the interests of real children . . . . Respondents do not challenge this provision, and we do not consider it.”  Id. at 242.  Perhaps they implied that morphed images would not fall under the protection of the First Amendment.

There are not really facts to discuss in Ashcroft.  The Free Speech Coalition (Coalition) was a California trade association that was involved in the “adult-entertainment industry.”  Id. at 243.  They alleged that some of their members’ materials may fall under the CPPA’s definition of child pornography despite not using minors in their materials (or “works” as they termed it).  Id.   Other respondents included a book publisher, a painter, and a photographer.  Id.

Complaint: The gravamen of the complaint was that the language of the CPPA, specifically subsections §§ 2256(8)(B) and (D) was overbroad and vague, and ultimately prohibited expression that the First Amendment protects (recall blog #2 in which I covered the language of these two subsections.  They use the language “appears to be” a child and “conveys the impression” that minors are involved.

Standing: My first question was whether the plaintiffs had standing to challenge the claim, but the Court says that “this case provides a textbook example of why we permit facial challenges to statutes that burden expression.”  Id. at 244.  In other words, the risks of violating the statute are so high that no person in their right mind would take the risk in order to challenge its constitutionality.  Hence, facial challenges are permitted.

Procedural Posture: The district court granted summary judgment in the government’s favor, stating that it is unlikely creators of artworks would actually be prosecuted.  Id. at 243.  The Ninth Circuit (duh, the most liberal Circuit ever…hippies [jk]) reversed.  It stated that the government could not legitimize its prohibition on speech by saying that the speech persuades viewers violate the law.  Id. Furthermore, it held that the CPPA bans materials that are neither obscene nor produced using real children.  Id. Stated another way, exceptions to First Amendment protection has been found only where the material is “obscene” or where the images involve exploitation of real children.

Wayne’s Holly’s World: Four other circuits, including the Eleventh (that’s us), sustained the constitutionality of the CPPA.  Before even going further, I believe there is a good case for arguing that the statute should pass strict scrutiny.  First, the state has a compelling interest in protecting children.  Second, I do not think it is possible to determine (at least not with the prosecutorial resources that are really available) in every instance whether a particular piece of pornography uses a real child or a fake one.  I doubt there are valid statics to demonstrate that in fact VCP increases the likelihood of a viewer becoming a child molester, or a child-viewer becoming desensitized.  However, the mere fact that VCP can be indistinguishable from real child pornography is enough to convince me that it needs to be regulated.  Assuming that to be true, the government should be able to regulate VCP to the extent it appears to be of a minor child (leave it to the judge to decide pre-trial? Make it an element of the crime?).  However, doing away with an obscenity requirement is where I think the statute falters.  There is a major reason for the obscenity exception to Am I protection, and I will not delve into that here.  I believe that the 1996 version of the CPPA would have had a better chance of surviving strict scrutiny analysis if it had an obscenity requirement.

Nonetheless, it did have a “sexually explicit” requirement, which was defined in § 2256(2) of the CPPA.  Sexually explicit was defined as actual or simulated “sexual intercourse . . . bestiality . . . masturbation . . . sadistic or masochistic abuse; or . . . lascivious exhibition . . . .”  Clearly we are not talking about a little kid in a bathtub.  Did Romeo and Juliet even have sex?  Is the Coalition seriously trying to protect the right to create a virtual image of a 7 year old making love to a donkey? Yeah, apparently (Clerks II anyone? Not a kid, but just a shout out to Kinky Kelly I guess).  So while I say that throwing the word “obscene” in the statute probably would have helped, it seems to me that “sexually explicit” could be considered even narrower than “obscene” in terms of doing all that it can to be narrowly tailored to achieve a compelling government purpose. (PS- cross reference my and Natalie’s constituent blog post [forthcoming]. We discussed this with Frank Williams and I gather that he would agree with me on this.)

The issue according to Holly: To me, this comes down to a question of whether protection of First Amendment rights to produce explicit material without use of a real child is more important than guaranteeing the protection of all children by reducing the risk that a real child will be the victim of VCP or morphing (at the expense of the aforementioned First Amendment right).  Score 1 for First Amendment says the Court.

The Court says “the CPPA is unconstitutional on its face if it prohibits a substantial amount of protected expression.”  Id. at 244.  Anyone take Rush for Con Law? Remember the John Marshall highway?  Well this is the Kennedy highway (I’m making this up with nothing to back my opinion so bear with me).  The Court could have said that the expression is not protected, i.e. VCP is not protected expression (recall that Ferber held that child pornography is not protected expression under Am I).  Failing that, it could have said that the law does not prohibit substantial amounts of protected expression.  Failing that, they could have read into the statute the requirements from prior case law that required the proscribed material to be obscene (not to mention incorporation of the Ferber standard: Is it child pornography? If yes, then the First Amendment does not protect it…Which I guess becomes the issue in the case: is VCP actually pornography?). Anyway, on with the, case.

The world according to the Court [with my 2 cents]: “[S]peech may not be prohibited because it concerns subjects offending our sensibilities.”  Id. at 245.  OK, isn’t that the justification for stating that obscene material is not protected forms of speech? Hmm… seems to me like the Court meant to say “…unless it offends our sensibilities to the point that we feel like regulating it.”  Maybe I’m just a cynic. Anyway…

The Court acknowledges that it would have to add VCP to the list of unprotected speech, as it currently is not considered unprotected because it does not fall into any other category of unprotected speech (not even child pornography. Missed that exit on the Kennedy highway).

The Court goes on to find that the CPPA does not meet the Miller standard, which requires proof that the material “appeals to the prurient interest, is patently offensive in light of community standards, and lacks serious literary, artistic, political, or scientific value.”  Id. at 246 (citing Miller v. California, 413 U.S. 15, 24 (1973)).  As an example of what the CPPA prohibits, the Court uses “a picture in a psychology manual.”  Id. at 246.  Since when do psych textbooks have photos of kids having sex (to be clear, the CPPA prohibits only visual depictions, not written descriptions of anything whatsoever)?  Furthermore, despite the sexually explicit requirement of the CPPA, the Court finds that images that would fall under the CPPA “do not in every case contravene community standards.”  Id. In short, the Court states that the CPPA does not require proof of any one of the three requirements set forth in the Miller standard.  We may assume the validity in this assertion based on the explicit language of the statute (although labeling the material pornography would arguably then require these criteria to be met, as it case law interpreting the statute).

The Court goes on to discuss “Romeo & Juliet,” Ferber, and Osborne v. Ohio, in which the Court upheld a ban on possession of child pornography.  495 U.S. 103 (1990).  In rejecting the government’s contention regarding indirect harms, the Court distinguishes Ferber by noting that that case was about production of child pornography, rather than on the message it conveyed.  Ashcroft, 535 U.S. at 250-51.  Admittedly, the Ferber standard stated that speech must be obscene or the product of sexual abuse in order to fall outside the scope of First Amendment Protection.  Id. at 251 (internal citations omitted).  In addition, while Ferber suggests that “simulations outside the prohibition of the statute could provide another alternative,” id (internal citations omitted), that case did not state that VCP actually fell outside the prohibition; it did not decide the issue.

One (offensive) point I would like to make in analyzing this case is that the Court teeters on the edge of comparing VCP to candy.  It states, “[t]here are many things innocent in themselves . . . such as . . . candy[] that might be used for immoral purposes, yet we would not expect those to be prohibited . . . .”  Id. My problem with this contention is simply that I cannot fathom a moral purpose for VCP.  Nonetheless, the Court finds as it does.

At one point the Court indicates that the government’s purpose is to keep these materials out of childrens’ hands.  Id. at 252.  However, it explicitly acknowledges the government’s goal.  “It argues that the CPPA is necessary because pedophiles may use [VCP] to seduce children.”  Id. at 252.  I don’t think I really need to say much about that. The Court simply twists the government’s goal so it can argue that we cannot ban something simply because a child might get a hold of it.  The decision goes on to reject every claim the government makes (I’ll spare you the details) and ultimately concludes that both §§ 2256(8)(B) and (D) are overbroad and unconstitutional.  Id. at 258.

In truth, I am not sure if I agree with the Court. I think this case could have come out either way.  I just spent considerable time playing devil’s advocate, but I do buy at least some of the Court’s arguments (especially with regard to the Miller standard).  Additionally, Thomas concurred in the judgment. O’Connor, Chief Justice, and Scalia concurred in the judgment in part and dissented in part.  Thus this was a 5-4 decision.  Realistically, if a more conservative Court sat at the time of Ashcroft the decision may have been different.

I will not get into the concurring and dissenting opinions, but they are interesting and for the scholars among you, I suggest reading them.  I may incorporate some of it into the next blog, which will cover a little more analysis of the case (from the perspective of real scholars, not just me) and the current version of the CPPA.

To conclude, I will say that (especially after meeting Frank Williams) I am abhorred at the thought of some sicko looking at child pornography, virtual or not.  I think VCP should be regulated and I do not think it should be protected speech under the First Amendment.  In short, I concur with the government that it is a major concern (something with which Frank Williams agreed based on his experience), we don’t have the money or resources to engage in high-tech analysis of every image to gauge whether it is VCP, and in this case I would err on the side of protecting children over speech.

Stay tuned…


~ by hollyufl on October 30, 2010.

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