THE SUPREME COURT STRIKES DOWN A "VIRTUAL" CHILD PORN LAW, BUT OTHER LEGAL CONSTRAINTS ON CHILD PORN AND OBSCENITY REMAIN STRICT

On Tuesday, the Supreme Court rejected - once again - another attempt to regulate pornography. In Ashcroft v. The Free Speech Coalition, the Court invalidated a statute's attempt to target "virtual" porn.

The Child Pornography Prevention Act (CPPA) banned images that are or "appear to be" of minors engaging in sexually explicit conduct. Such images are frequently created using computer technology, and do not involve actual children. (The law also banned manipulating images of actual children, but that portion of the law was not challenged.) The CPPA also prohibited selling or possessing material that was "advertised" as child porn, even if the actual images themselves were not.

The challenged portions of the CPPA met the same fate as the challenged portions of the earlier Communications Decency Act - which the Court had earlier struck down in Reno v ACLU. This was unsurprising: the present Court has consistently resisted legislative efforts to use new technology to justify new restraints on speech.

Fifty Years of Freedom of Speech: Adults Held to Be Entitled to Hear Adult Speech

For much of American history, censorship laws were justified on the ground that explicit speech was harmful to children. However, in the late 1950s, Justice Felix Frankfurter dramatically recast the terms of the debate when he ruled on behalf of the Supreme Court in Butler v. Michigan that the law could not "reduce the adult population ... to reading only what is fit for children."

Governments, the Court recognized, have a vital interest in protecting children. Nonetheless, the First Amendment bars the state from using that interest as a blanket justification for censorship.

One consequence of Butler was that fifteen years later, when the Supreme Court defined the outer limits of First Amendment protection, children were not part of the equation. In Miller v. California, the Court defined a category of speech, called "obscenity," as unprotected by the Constitution. According to Miller, speech is obscene if it is patently offensive, aimed at prurient interests, and without redeeming social value. The Miller test says nothing about children.

Furthermore, the Court's subsequent cases in this area have shown that what is "patently offensive" is judged by adult standards. (The Court has held that a separate obscenity test, which allows more speech to be regulated, may be applied when, for example, a minor buys a pornographic magazine, but adults cannot be held to this standard).

Indecency on the Airwaves: Invoking Children to Justify Regulating Adult Speech

While the Supreme Court was protecting pornography that appeared in print, Congress was carving out a safe haven for speech on the airwaves, where it hoped it could regulate to its heart's content.

Following World War Two, Congress tasked the Federal Communications Commission with policing the airwaves. In the FCC's enabling legislation, Congress found that broadcasting explicit material was harmful to children, and protecting children was, once again, offered as the justification for limiting speech.

Where Congress pointed, the FCC went. It proceeded to regulate television and radio using a standard, "indecency," that reached beyond Miller. Generally speaking, the Commission defined the "indecent" as involving explicit sexual or excretory activity. The indecent will not, frequently, be obscene - and thus, under the Supreme Court's doctrine, unprotected by the Constitution - but the FCC ruled that it nonetheless could not be shown on television.

So, for example, the images in Hustler magazine are pornographic. They are not "obscene" under Miller, and so newsstands are free to sell them. But they are "indecent" as far as the FCC is concerned, and so the networks are not free to broadcast them. Finally, because the FCC reaches only the airwaves, images from Hustler can be shown on subscriber cable television.

Protecting Children's Selves: the Special Case of Child Pornography

Separate from the issue of harm to children through speech are the cases involving harm to children through exploitation. In New York v. Ferber, the Court permitted a ban on child pornography to protect the children used in actually making it.

The Court also extended the ban to selling and possessing such material, because it recognized that child porn was only produced because it was profitable. Eliminating the profit motive is the only effective way to try to eliminate the exploitation of our children.

The 1990s: New Technologies, Old First Amendment Principles

From the mid-1970s until the 1990s, the national and state governments mostly steered clear of regulating speech. The Supreme Court had plainly signaled that limiting offensive speech (other than in broadcast media) was nearly impossible. The Meese Commission, for example, while finding that pornography harmed children, produced no important legislative initiatives.

But with the changes in communications technology in the 1990s, legislatures returned to the field. This involved, preeminently, the passage of the Communications Decency Act of 1996, a broad-based federal effort to extend the FCC's indecency standard to material on the Internet. With the CDA, Congress was trying to shoehorn the Internet into the "airwaves" category of media, which receives less protection than other media.

The effort failed. The Supreme Court had no difficulty finding in Reno v. ACLU that speech on the Internet was entitled to all the protections that Miller extends to print and virtually all other media. While concerned about the effect of Internet smut on children, the Court reaffirmed its view that a marketplace of ideas - which the Internet most certainly is - must be pitched to adults.

The Problems with the CPPA: Why the Court Struck It Down

As to the rest - not just pornography, but MTV and Benetton commercials - we merely wince. This is all perfectly understandable. Our accommodations reflect a society struggling to reconcile its commitment to freedom and its desire to shelter our children.

The CPPA added little to this balancing act. And Congress should have foreseen that the law, placed precariously at the intersection of the various avenues of First Amendment law, was bound to get run over.

In the first place, the notion that speech generally harms children has not, since Butler, been a basis for banning speech. There is a lot of speech that does our children no good (try watching Saturday morning T.V.), but protections for such speech are hardwired into the Constitution.

The notion that speech may lead to crime does not change this point. The CPPA's drafters said that virtual porn "feeds" the motivations of the pedophile, rendering him more dangerous. There are, of course, cases of direct incitement (such as handing one person a gun and telling him to kill another). But nearly all of the time, even incitement does not lead adults to commit crime. That is why, when speech might cause violence, the First Amendment allows us to regulate the violence, but not the speech.

Furthermore, the CPPA's ban on "sexually explicit" material sounded a lot like the indecency standard. As Justice Kennedy recognized, the CPPA was aimed at material that was protected under Miller, without any regard for that case's standards. But what Justice Kennedy did not say was that the indecency standard, as noted, applies to almost nothing beyond the public airwaves.

The justification for the unique powers of the FCC has to do with the medium, not the message. But the CPPA subjected speech to that standard based solely on its content, not the means by which it was provided.

There was absolutely nothing in fifty years of First Amendment law to suggest that the Court would adopt that approach - and much to suggest it would not, since regulating speech based on its content alone is specially disfavored in First Amendment doctrine. Regulating speech based on what it causes (its "secondary effects") is one thing, in the Court's view; regulating it based on what it says is quite another.

Why the Case That Allowed a Ban On Actual Child Porn Did Not Save the CPPA

Ferber - the case that allowed actual, not virtual, child porn to be banned - was also of no help to those defending the CPPA's ban on virtual child porn. Ferber was also not about content: the issue there was how child pornography was made - that is, through the use of actual children.

In sum, in light of the relevant precedents, it is difficult to see how the CPPA's drafters persuaded themselves that the law ever would pass constitutional muster. While these drafters' motives were unimpeachable, their constitutional judgment was poor.

Fortunately, Tuesday's ruling provides little comfort to those who produce real child pornography, which remains criminal and a prime target of America's prosecutors. As a result, the balance between our freedom of speech and our concern for our children remains both uneasy and largely undisturbed.