The U.S. Supreme Court last week struck down key provisions of a federal law that criminalized “virtual” child pornography, which includes computer-generated images of children, rather than actual children, engaged in sex.
The court said the Child Pornography Prevention Act of 1996 violated the First Amendment’s guarantee of free speech because no children are harmed in the production of the images defined by the act. And the court majority said the act too broadly covers speech with serious literary, artistic, political, or scientific value.
“The statute proscribes the visual depiction of an idea—that of teenagers engaging in sexual activity—that is a fact of modern society and has been a theme in art and literature throughout the ages,” Justice Anthony M. Kennedy wrote in the majority opinion in Ashcroft v. Free Speech Coalition (Case No. 00-795).
The law was challenged by a trade group of the adult-video industry, which disavows child pornography but worried that its films might violate the law. Mainstream Hollywood filmmakers were also concerned that the law might cover depictions of teenagers in sexual situations, even if the actors were young adults.
Justice Kennedy cited such films as “American Beauty,” “Traffic,” and a 1996 version of “Romeo and Juliet” that “explore themes within the wide sweep of the statute’s prohibitions.”
He rejected arguments from the Bush administration that the law should be upheld because pedophiles may use virtual child porn to seduce children, and that it would be harder to prosecute producers of real child pornography without the law.
Justice Kennedy’s opinion was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsberg, and Stephen G. Breyer. Justice Clarence Thomas voted for the same outcome in the case but did not sign Justice Kennedy’s opinion.
Justice Sandra Day O’Connor agreed that the government could not ban pornography involving “youthful adults,” making it a 7-2 ruling on that aspect of the case. But she joined with Chief Justice William H. Rehnquist and Justice Antonin Scalia in voting to uphold the provision prohibiting computer-generated images, making that issue a 6-3 ruling.
Chief Justice Rehnquist said the law could be upheld by construing it to ban only visual depictions of “actual sexual activity,” not suggestions of sex, such as scenes of actors “squirming under a blanket.”
A version of this article appeared in the April 24, 2002 edition of Education Week as Supreme Court Strikes Down 1996 Ban on Computer-Created Child Pornography