LARA CROFT, STARRING AS LOLITA? "Virtual" Child Pornography, Thought Crimes, And The First Amendment

By JULIE HILDEN


julhil@aol.com
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Monday, Mar. 05, 2001

The Supreme Court recently granted review of a case, Reno v. Free Speech Coalition, that raises an interesting First Amendment issue. The issue is whether, in addition to banning actual child pornography, the government can also ban "virtual" (or "pseudo") child pornography — pornography that appears to depict children, or conveys the impression that it is depicting children, but does not, in fact, do so. Examples of "virtual" child pornography include digitally created images of children, or extremely lifelike animation that can fool the viewer into thinking it is real.

The Ninth Circuit Court of Appeals in California has held that a ban of "virtual" child pornography — embodied in a provision of the Child Pornography Protection Act of 1996 — is unconstitutional. The First Amendment, the California court noted, protects images as well as words. And when images with a particular content are specially targeted, the Amendment's protections can only be overcome by a compelling interest on the part of the government. Applying this standard, the court concluded that the First Amendment allows a complete ban on actual child pornography but not a complete ban on "virtual" child pornography — essentially because the latter, unlike the former, does not inflict direct harm on actual children.

But several other federal circuits have disagreed. Thus, it is likely that the Supreme Court has taken the case in part in order to resolve the uncertainty in the law created by this conflict.

Two aspects of the case are novel and intriguing even to a First Amendment aficionado. First, the Supreme Court itself arguably invited the "virtual" pornography alternative in a 1982 ruling. Second, the "virtual" pornography ban is a daring foray by the government into the area of "thought crime" — and one of the few instances where invocation of the name of George Orwell, whose novel "1984" introduced the "thought crime" concept, may truly be warranted.

Critics — and the California court — have emphasized that in a 1982 decision, New York v. Ferber, the Supreme Court as much as invited the creation of "virtual" child pornography. That decision, which upheld a ban on actual child pornography, suggested that artistic works involving childhood sexuality would survive the ban with their value and message intact. Why? Because, the Court said, such works could employ pseudo-children or simulations: "[I]f it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized. Simulation outside of the prohibition of the statute could provide another alternative."

Ironically, while the court promised "pseudo" depictions and simulations would preserve literary and artistic value, while avoiding the use of real children, it is probably only "virtual" depictions of child sexuality that offer the hope of truly doing so. Movie versions of Lolita, for example, have gone the "pseudo" route — with the ironic consequence that movie Lolitas Sue Lyon (fifteen or, according to some reports, older) and Dominique Swain (also fifteen) looked and behaved significantly older than the twelve-year-old character Lolita that Vladimir Nabokov described.

The uneasy consequence, in both movies, was that Humbert Humbert appeared less loathsome, and Lolita more confident and mature, than in the book — and the relationship between them in turn seemed less objectionable. By most people's calculation, seducing a twelve-year-old barely on the edge of adolescence is significantly more morally despicable than seducing a fifteen-year-old in the midst of it (particularly a confident, sexually aggressive one, like those played by Lyon or Swain). In short, literary and artistic value was not preserved, largely because older actresses were used.

Given the ban on child pornography, only when computer animation allows truly lifelike representations of people might we see an onscreen Lolita who actually looks twelve, and feel what Nabokov sought to convey about Humbert Humbert. (Imagine Lolita, for example, as a younger version of Lara Croft, the "virtual" heroine of the game "Tomb Raider" — but one who, due to improved technology, is as realistic looking as Angelina Jolie, who plays Croft in the upcoming movie.)

In any event, regardless of whether pseudo or virtual depictions of children are a full, fungible alternative to actual ones where serious works of photography or film are concerned, the fact remains that the Court offered the alternative of such depictions as one of the rationales for accepting as constitutional a full-fledged ban on images thought to sexualize actual children.

That ban, itself, put in jeopardy some serious art — including established photographers' photographs of their own children in the nude — but the Court reasoned it was worth losing this art to protect children, especially given the "pseudo" and "virtual" alternatives. For the Court now to reverse itself and erase these alternatives would undermine the reasoning of the earlier case.

The Arguments For and Against the Ban

Defenders of the ban on "virtual" child pornography — including the U.S. government — take the position, however, that they are willing to sacrifice a few worthy films or photographs in order to prevent serious harm. They contend that "virtual" child pornography can be used by pedophiles to seduce real children, and they note that enforcement of bans on pornography involving real children will be made more difficult if "virtual" child pornography is legal. They also contend that "virtual" child pornography — no less than actual child pornography, from which it is often indistinguishable to the viewer — encourages pedophilia and child sexual abuse.

First Amendment advocates respond by contending that the ban on "virtual" child pornography is vague, so that it is difficult to tell what the ban reaches. They also fault the ban for being "overbroad" — meaning that it reaches speech that is protected by the First Amendment, as well as speech that is not.

They also point out that the availability of "virtual" child pornography is just as likely to decrease the prevalence of actual child pornography as to have the reverse effect. If it is legal to use computer imaging technology to create "virtual" child pornography, they argue, isn't it the case that at least some pornographers may avoid the risk of imprisonment or fine by substituting "virtual" children for real ones?

The Concept of "Thought Crime"

"Virtual" child pornography itself may seem loathsome, and not worth protecting, and perhaps that is so. But if we were to generalize the principle that loathsome "virtual" acts can never be depicted in film or photography, we would be authorizing full-scale censorship, and introducing into our law "thought crimes": victimless crimes that involve no more than the imagination — and not the reality — of a criminal act.

Congress does not want anyone (writer or reader) even to envision sex involving children, for fear the vision could become real. But that, of course, is thought control. And if we accept it now, we can expect it to broaden — for depictions of "virtual" crimes are common in pop culture and art alike.

For example, the movie "Hannibal" might be thought of as a depiction of "virtual" cannibalism: After all, it really does appear that Anthony Hopkins is consuming Ray Liotta's brain, while Liotta is still alive. (Fortunately, though, no actual Ray Liotta, to my knowledge, was harmed in the making of the film.)

Of course, we know the cannibalism is not real. Importantly, though, that that knowledge would probably not save "Hannibal" from a "virtual cannibalism" statute — for it is hard to dispute that what is shown in the movie appears to be, and conveys the impression that it is, cannibalism. (For similar reasons, "virtual" child pornography probably could not be saved from prosecution by a disclaimer noting that it is virtual, not real — though mandating such disclaimers might still be a good idea as a matter of policy.)

The difficulties with saving "Hannibal" from a "virtual" cannibalism-ography ban illustrate the First Amendment difficulties with the ban on "virtual" child pornography. Sexual contact with children is an evil that the government, as the Supreme Court has noted, has an interest of "surpassing" importance in preventing. But so are cannibalism, murder, and rape.

And were our society to criminalize depictions of all these crimes, it would be obvious that we were creating a broad category of "thought crimes" — in which images would have to be weak and indirect to be safe. And as the California court reasoned in striking down the "virtual child pornography" ban, it should not be the case that "[t]he more realistic an imaginary creation is, the less protection it is entitled to under the First Amendment."

The Importance of Message and Perspective

Accepting this principle would be anathema in part, because prohibitions on images will never be able to account for their message or perspective — only for their roughly defined subject area. Thus, the devastatingly realistic depiction of rape so well acted by Jodie Foster in "The Accused" could just as easily fall within a "virtual rape" statute as a devastatingly realistic depiction of rape that portrayed the crime as desirable or manly. The former, of course, probably would never be prosecuted, but would Foster's producers be willing to risk jail on a gamble that the movie's explicitness will not offend a single prosecutor anywhere in the country?

A regulation that only targeted depictions that arguably encouraged, or were positive towards, crimes might protect "The Accused," which definitively sides with the victim, but leave other movies that are not unequivocally condemning of crime as fair game. ("A Clockwork Orange," or even "The Talented Mr. Ripley," might be an example.)

Perspective is subtle, and hard to regulate, precisely because it is the essence of speech and thought — it involves not just what we think about, but what, in the end, we think about it. In the end, it is up to us, not the government, to decide that.


Julie Hilden, a FindLaw columnist and a graduate of Yale Law School, is a freelance writer and the author of the memoir "The Bad Daughter." She practiced First Amendment law as an associate at the Washington, D.C. firm of Williams & Connolly from 1996-99.

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