August 8, 1997 2:15 PM PDT

Battle over simulated child porn

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Free speech advocates are battling yet another high-tech porn law, which aims to deter pedophiles by outlawing computer-generated images of an "apparent" minor engaged in sexual activity.

The Child Pornography Prevention Act, drafted by Sen. Orrin Hatch (R-Utah), crept into law as part of the 1996 federal spending bill. The law makes it a felony, punishable by ten years in prison, to transmit or possess sexually explicit digital or video materials featuring a person who is a minor or looks under the age of 18.

A federal judge in San Francisco decided yesterday not to hear oral arguments in a case against the law filed by the Free Speech Coalition, which has gained the support of the American Civil Liberties Union. Instead, U.S. District Judge Samuel Conti will review briefs submitted by government and the civil liberties groups and decide whether the law violates the First Amendment by making it a crime to create fake pictures of children who are nude or in seemingly sexual situations.

Computers and the Internet have constantly come under fire by those in Congress who believe new regulation is needed to prevent the technologies from increasing criminal activity such as illegal gambling or child porn trafficking.

Opponents say the law is too broad. For example, it could be a violation of the law to ship a picture across the Net of Madonna's naked body with a young Marsha Brady's face imposed onto it. It could also be federal crime, for instance, to post online an adult video that has actors who are playing adolescent characters, such as cheerleaders.

The Justice Department argues the goal of the law is not to stifle the distribution of rated feature films or artwork but to curb the proliferation of child pornography generated or sent via computers. Although child porn is already illegal, make-believe materials "incite the same reaction in pedophiles," the government says.

But the Free Speech Coalition, which represents filmmakers and Internet providers, states in its court brief that past federal child pornography legislation was "limited to ensuring that actual children were not used as subjects of sexually explicit materials," but that the 1996 law "includes conduct where no children are involved" by criminalizing material that "depicts" or "conveys the impression" of a minor.

"The plaintiffs don't advocate the use of minors in sexually explicit materials. But this makes it a crime to post pictures of a person who is not real or identifiable," said Louis Sirkin, an attorney in the case, who is known for winning free speech cases on behalf of adult movie producers and art galleries in Cincinnati, Ohio.

The law could also affect Hollywood movies, Sirkin said. A 1997 version of Lolita has not been released in the United States because the producers are said to be investigating the legal ramifications of featuring 16-year-old Dominique Swain in sexy scenes.

Some states already are taking action. Fueled by complaints from the Oklahomans for Children and Families, Oklahoma City police raided video rental stores and homes in June to seize copies of the The Tin Drum, a 1979 German movie that won an Academy Award. The OCF claimed the film had three pornographic scenes containing children; the ACLU charges that the raids were illegal and that the film doesn't contain kiddie porn.

The new law, free speech advocates say, could inspire similar police raids of video shops or Net publishers' premises based on complaints from those using the now broader definition of child pornography.

The government maintains that its law does not infringe on the Constitution. In its opposition brief, Justice says that "the act explicitly exempts any work that uses an adult--regardless of how young that adult appears." The law was not passed to target the producers of erotic images, the government adds. "Rather, it was enacted to eradicate computer-generated child pornography, which presents realistic but simulated images and which was created as a result of recent technological advances."

Still, civil liberties group say the law, like the now dead Communications Decency Act, is vague and goes after "imaginary crimes."

"This law prevents 'thought crimes,'" said Jeffrey Douglas, an attorney for the Free Speech Coalition. "Originally, the law was supposed to prevent computer distortion of pictures of children, but that's not the way it's written."

 

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