Virtual Child Pornography And The Constitution

Historical Background

In Miller v. California, the Supreme Court held that obscene speech does not receive First Amendment protection because obscenity serves no crucial role in the exposition of ideas and has little social value. The Court developed a balancing test that asks: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work taken as a whole, lacks serious literary, artistic, political or scientific value. Material that ‘passes’ the Miller test is deemed to be obscene and not afforded First Amendment protection. In 1982, in New York v. Ferber, the Court held that child pornography involving actual children is a category of speech not protected by the Constitution and that such depictions may be prohibited even if they are not obscene. The Court in Osborne v. Ohio criminalized the mere possession of child pornography.

In 1996, Congress passed the Child Pornography Prevention Act that criminalized the creation of VCP. Under the CPPA, images that appeared to depict children but do not, including images of youthful-looking adults or images that are computer-generated, were illegal. The CPPA also included a “pandering” provision that stated that any image that has been promoted in a manner that “conveys the impression” that a minor engaging in sexually explicit conduct is depicted, is illegal.

The Supreme Court found the CPPA unconstitutional on numerous grounds in Ashcroft v. Free Speech Coalition. Congress then came up with The PROTECT Act (Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today). Built on the same platform as the CPPA, it contains some important distinctions that avoid the Constitutional pitfalls of the CPPA. The Supreme Court found the PROTECT Act and its pandering provision to be Constitutional because First Amendment protection only extends to lawful speech; offers to engage in illegal transactions are categorically excluded from First Amendment protection. Justice Scalia states stated that VCP which is marketed as VCP will not be proscribed by the PROTECT Act. The Act proscribes only pandering where the intention is to cause another to believe that the material is contraband. As a result, one who creates VCP – even if it is indistinguishable from real child pornography - and markets it as VCP, is afforded First Amendment rights.

Should It Be Legal to Market VCP As VCP?

Society is repulsed by child pornography. Children are usually the most innocent and defenseless of people; child pornography harms and debases these innocents. The most damage to children occurs in the production of real child pornography. VCP does not damage children in its production because children were quite possibly never involved in its production. Perhaps VCP is beneficial to children by allowing potential producers of real child pornography to instead turn to its legal cousin so as to avoid prosecution? Thus, VCP may decrease cases of sexual abuse by allowing pedophiles to sublimate their desires into a victimless alternative that is not intrinsically related to the sexual abuse of children. Can the Government restrict this harmless speech? As long as the VCP is not obscene, production is not proscribed under Ferber, nor is possession proscribed under Osborne. However, perhaps VCP ought to be obscene and thus illegal under the Miller test?

1. Does the work, applying community standards, appeal to the purient interest?

The first question we are faced with in applying this standard to VCP is: which community's standards do we apply? If one produces VCP and posts it online, is the internet community the community we must look to? The Circuit Court in ACLU v. Reno held that the Miller test is not viable in the context of a global internet. The Supreme Court disagreed and held that refusal to permit national standards to apply online would make regulation of illegal expression online impossible.

Does VCP appeal to the prurient interest? Although some real images of children may seem innocuous to many people, often these images are found stimulating by pedophiles. Would those images be labeled child pornography by the ‘community’? If they are, then virtually all depictions of children – whom to pedophiles are highly eroticized sexual objects – are likely to be classified as child pornography. Obviously this line of reasoning is faulty, and although the pedophile might have nefarious uses for the innocent picture, it is nevertheless an innocent picture. Conversely, VCP is produced specifically for pedophiles and people who are stimulated by these images. As a result, these images appeal to the prurient interests by community standards.

2. Does the work depict in a patently offensive way, sexual conduct specifically defined by the applicable state law?

Arguably, there is no criminal more reviled by society than the child molester/pedophile. Any material that aids or incites the pedophile would undoubtedly be repugnant and offensive. According to the Mayo Clinic, studies and case reports indicate that 30% to 80% of individuals who viewed child pornography and 76% of individuals who were arrested for internet child pornography had molested a child. As a result, any depiction of child pornography, even if it involved no children in its production such as VCP, would arguably be found to be offensive.

Often the pedophile uses child pornography as a way of tricking his victim into believing that sexual relations between adults and children are normal. VCP that is indistinguishable from real child pornography is probably just as dangerous as the real thing. The pedophile would be able to utilize the virtual depiction the same way he would utilize the real one. Even if the VCP were distinguishable from real child pornography, what is to say that the child victim is able to distinguish between the virtual depiction and the real one? VCP would be offensive simply because it is a tool utilized by the pedophile.

3. Does the work lack serious value?

The Court in Miller stated that “we do not adopt as a constitutional standard the ‘utterly without redeeming social value’ test.” As far as the Court was concerned, possessing some kind of value was not enough to save a work from being classified as obscene. It is unlikely that computer-generated VCP could ever have any serious literary, artistic, political or scientific value given that it is created and traded with pedophiles' interests in mind. In regard to real child pornography, the Court in Ferber stated: “We consider it unlikely that visual depictions of children performing sexual acts or lewdly exhibiting their genitals would often constitute an important and necessary part of a literary performance or scientific or educational work.” Logically, the same would hold true for VCP. Even if such images did contain some value, it is unlikely that that value would be enough to afford them First Amendment protection.

Conclusion

Real child pornography has been recognized by the courts as the repulsive tool of child molestation that it is. Somehow, VCP has flown under the radar. Although Congress has attempted to equate VCP with real child pornography, the Supreme Court has thwarted Congress’ attempts on two occasions. Although debatable whether or not VCP is as damaging as real child pornography, I believe that VCP is by its very nature obscene. Because VCP seemingly passes the Miller test, it ought to be prosecuted as obscenity.

-- DavidMehl - 15 Apr 2010

Interesting essay. In the same context, you may also consider USA's accession to the International Convention on Cybercrime, which also includes specific provisions on virtual child pornography. The Convention entered into force in the USA on January 1, 2007

-- NikolaosVolanis - 21 Apr 2010

Thanks Nikolaos. However, even after the USA's ratification of the Convention, I don't believe that the criminalization of “realistic images representing a minor engaged in sexually explicit conduct” mentioned in the Convention would be possible in the USA thanks to the narrowly worded PROTECT Act that only criminalizes VCP that is indistiguishable from the real thing. Thoughts?

-- DavidMehl - 22 Apr 2010

David,

I have just a few comments. I marked a few places in the essay in red text where it seems like there might be a typo. To change the color just delete the %RED% text and the %ENDCOLOR% text by the words in question. Also, the essay currently clocks in (on my screen anyway) as 1228 words. I think Professor Moglen is pretty strict about the 1,000 word limit described here.

Substantively, I'm a little confused by the discussion of Miller. The essay describes that "perhaps VCP ought to be obscene and thus illegal under the Miller test[.]" Miller doesn't make anything illegal, right? - statutes do that. Miller just addresses when the First Amendment shields, for better or worse, some content from such statutes. So a quick rewording here would help the essay's persuasiveness I think. Similarly, the statement that the Court "criminalized the mere possession of child pornography" isn't what the Court did, it's what the statute did, right? I think it adds more force to your argument to keep details like these clear.

Also, you might look at Pope v. Illinois about the issue of defining what a "reasonable person" would think and what the relevant community standard is.

Finally, though I don't know that you need to mention it here, I think the hardest question with child pornography is not content made for pedophiles (whether VCP or real) which I think most people would agree is highly problematic. It's drafting statutes that don't capture things made for non-pornographic purposes, like art, movies, cartoons, family pictures, graphic novels, materials imported from abroad (with perhaps different standards than in the U.S.), and so on. There's some discussion of the Court's concerns in this regard in the intro section of Harvard's Violence Against Women on the Internet page here.

I hope these comments are helpful. Thanks for your essay on this difficult topic.