Supreme Court Strikes Down Ban on Virtual Child Pornography

April 16, 2002


New York Times

WASHINGTON, April 16 - In a case that addresses some of the
most fundamental issues of technology and morality, the
United States Supreme Court ruled today that Congress went
too far in 1996, when it passed a law that treats "virtual"
or computer-generated child pornography as the real thing.

The court held, 6 to 3, that the Child Pornography
Prevention Act is overly broad and unconstitutional,
despite its supporters' arguments that computer-generated
smut depicting children could stimulate pedophiles to
molest youngsters.

"The sexual abuse of a child is a most serious crime and an
act repugnant to the moral instincts of a decent people,"
Justice Anthony M. Kennedy wrote in the majority decision.
Nevertheless, he said, if the 1996 law were allowed to
stand, the Constitution's First Amendment right to free
speech would be "turned upside down."

"Congress may pass valid laws to protect children from
abuse, and it has," Justice Kennedy wrote. "The prospect of
crime, however, by itself does not justify laws suppressing
protected speech."

Attorney General John D. Ashcroft expressed anger and
disappointment late this afternoon over the ruling, saying
that it had made it "immeasurably more difficult" to go
after child pornographers but that he was "undeterred in my
resolve" to pursue those who exploit children.

The High Court voided two sections of the law, but a third
section was not challenged and is still in force. It bans
some computer alterations of innocent pictures of children
- grafting a child's school picture onto a naked body, for

The 1996 law allows for prison sentences of up to 5 years
for the first offense of possession of banned material and
up to 30 years for repeat offenders who produce it.

When the case was argued last Oct. 30, the justices
expressed different viewpoints on what might be indecent,
and under what circumstances, and how the government should
address such considerations. With the dizzying advance in
computer technology, it becomes more difficult to determine
what is or is not "real," at least on the movie screen.

Rejecting the argument that virtual child pornography ought
to be banned because it might whet the appetite of
molesters, the Supreme Court's ruling declared, "The mere
tendency of speech to encourage unlawful acts is not a
sufficient reason for banning it."

Justice Kennedy wrote: "The right to think is the beginning
of freedom, and speech must be protected from the
government because speech is the beginning of thought. . .
. The court's First Amendment cases draw vital distinctions
between words and deeds, between ideas and conduct."

Justices John Paul Stevens, David H. Souter, Ruth Bader
Ginsburg and Stephen G. Breyer joined Justice Kennedy,
while Justice Clarence Thomas wrote a separate concurring

Chief Justice William H. Rehnquist wrote the dissent.
"Congress has a compelling interest in ensuring the ability
to enforce prohibitions of actual child pornography, and we
should defer to its findings that rapidly advancing
technology soon will make it all but impossible to do so,"
he wrote.

Chief Justice Rehnquist said Congress saw a compelling need
to extend the definition of child pornography to embrace
computer images "that are virtually indistinguishable from
real children engaged in sexually explicit conduct."

"The statute need not be read to do any more than precisely
this, which is not offensive to the First Amendment," the
chief justice wrote. Justice Antonin Scalia joined in his
dissent. Justice Sandra Day O'Connor sided with the
majority in some facets of the case and with the dissenters
in others.

The Attorney General said the Justice Department would work
with federal prosecutors across the country to see that as
few cases as possible were affected by today's ruling. Some
child-pornography cases may be refiled under existing
obscenity statutes whose status is not in question, he

"Children may be only 25 percent of our population, but
they are 100 percent of our future," Mr. Ashcroft said.

A former senator from Missouri, the Attorney General said
he was committed to working with Congress to devise new
computer-pornography legislation that would survive
judicial scrutiny.

Other conservatives were furious over the majority
decision. "That the Supreme Court of the United States can
entertain the notion that virtual images of children being
sexually violated has `value' that needs protection is an
abomination," Jan LaRue, legal studies director at the
Family Research Council, told The Associated Press.

"The high court sided with pedophiles over children,"
Representative Mark Foley, a Florida Republican who is
co-chairman of a Congressional caucus on missing and
exploited children, told the A.P. "This decision has set
back years of work on behalf of the most innocent of

The majority ruling upheld a December 1999 opinion by the
United States Court of Appeals for the Ninth Circuit, in
San Francisco, and overturned a federal district court
decision. Other appeals courts have upheld the law,
however. The Clinton and Bush administrations both defended
the law in court.

The opinions in the case, Ashcroft v. Free Speech
Coalition, No. 00-795, can be read on the Supreme Court's
Web site:

The ruling today is a victory for producers of sexually
explicit material - what some people call adult
entertainment and others call filth. The Free Speech
Coalition, a trade group for makers of sexually explicit
films, has said that it opposes child pornography, but that
the 1996 law could stifle legitimate artistic expression.

And there was agreement on both sides today that art
depicting sexual activity by minors, even sexual abuse of
children, does not automatically run against "community
standards" of decency. Two recent, highly acclaimed films
were cited to make that point, "American Beauty" and

Justice Kennedy also cited an earlier work of art. "Both
themes - teenage sexual activity and the sexual abuse of
children - have inspired countless literary works," he
wrote. "See Romeo and Juliet."