VCP: Is Am I > Protecting our Children? [7 of 8]



The Protect Act was signed into legislation in 2003, the Supreme Court decided United States v. Williams in 2008, and then the law reviews sort of disappeared.  A Westlaw search shows that there are only 91 secondary sources (out of 5900 sources total) that cite to the PROTECT Act after Williams.  Many of these sources deal with issues like DNA evidence, jurisdiction, etc.  Almost none deal with the constitutionality of the Act or with VCP specifically.  Out of 700 citing cases decided since Williams, only a small handful of cases discuss the PROTECT Act. The rest cite to it only to address issues such as admissibility of evidence and jury instructions. None question the constitutionality of the Act.

Benjamin Mains suggests that it is still too soon to see the response to Williams, specifically whether the Court construed the PROTECT Act in a sufficiently narrow way to establish a coherent and enforceable standard.  Benjamin A. Mains, Note, Virtual Child Pornography, Pandering, and the First Amendment: How Developments in Technology and Shifting First Amendment Jurisprudence have Affected the Criminalization of Child Pornography, 37 Hastings Const. L.Q. 809, 835 (2010).  Perhaps then scholars are hesitant to write about a topic that may become outdated soon.

In addition, less than a year after Ashcroft, Congress passed and the President signed into legislation the PROTECT Act.  Thus, it is possible that courts want to avoid the tango that seems to go on when two branches disagree.  It is also possible that the right case just has not arisen.

One factor I think may be affecting the lack of treatment is politics.  This was Bush’s Act.  Obama’s focus is on other issues right now, and arguably the political pressure to enforce or strike down the PROTECT Act is simply on the back burner right now.

Historically, many Acts that have been struck down remained “on the books” for years.  I don’t think I need to cite segregation laws, laws against abortion, etc. to give you an idea of how long it could take before the PROTECT Act is either expressly upheld in its entirety or struck down as unconstitutional.

The issue of why scholars have not taken a closer look at the PROTECT Act is a little less clear.  The Court in Williams did make their point quite clearly when it upheld the constitutionality of the Act insofar as it bans the advertisement of child pornography even if the advertisement itself doesn’t contain actual pornography.  Perhaps the debate is going by the wayside.  Can people really argue in 2010 that technology is not sophisticated enough to make VCP look real?  My guess is that we just need more case law to fret about before scholars begin writing about the Act’s constitutionality again.

I welcome your hypotheses as to why the PROTECT Act is not discussed much these days. For my last blog I am going to discuss the PROTECT Act in relation to Second Life and whether the “virtually indistinguishable” standard actually serves to protect child-play between avatars on Second Life, since it is arguable that no reasonable person would look at an avatar and conclude that it is “virtually indistinguishable” from a real human. Happy T-giv everyone!


~ by hollyufl on November 21, 2010.

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