August 12, 1997 6:40 PM PDT

Law on fake child porn upheld

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SAN FRANCISCO--A federal judge here today upheld the Child Pornography Prevention Act, which makes it a felony to create computer images depicting "simulated" sex with minors.

Rebuking claims that the law was overly broad and in violation of the First Amendment, U.S. District Judge Samuel Conti ruled that Congress has a constitutional right to ban "fake" child porn.

"For even if no children are involved in the production of sexually explicit materials," he stated, "the devastating secondary effect that such materials have on society and the well-being of children merits the regulation of such images."

Pushed into law by Sen. Orrin Hatch (R-Utah) in 1996, the federal statute aims to deter pedophiles by making it a felony, punishable by ten years in prison, to transmit or possess pornographic digital or video materials featuring an "apparent" minor. The law was passed the same year as the Communications Decency Act during a wave of regulatory efforts to criminalize "indecent" and sexually explicit material online.

The Free Speech Coalition, which has gained the support of the American Civil Liberties Union and Electronic Frontier Foundation, sued to overturn the law on grounds that it infringed on the right to free speech.

Conti said the law was valid because it is "content-neutral," meaning that Congress had a right to pass the law for the same reason cities can regulate the time and place a parade can be held.

"The First Amendment allows regulation of the time, place, and manner of speech; this is known as content-neutral regulation. The judge has said this is a content-neutral law and therefore constitutional," said Drew Trott, a San Francisco attorney who worked on the case on behalf of the Free Speech Coalition.

Trott said he hadn't finished fully reviewing the ruling, but that "the gist of his decision is that this speech can be regulated because it encourages people to harm children. If we allow that type of rationale to regulate speech, where do we stop? Will Bonnie and Clyde be censored because it encourages people to rob banks?"

Opponents in the case argued that the law was too broad because, 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 to upload an adult video that has actors who are playing adolescent characters, such as cheerleaders.

The Justice Department argued the goal of the law was 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," according to the government.

Conti's decision backed the government's claims, stating that the law is narrowly tailored. "It specifies that only materials that do not use adults and that appear to be child pornography, even if they are digitally produced, are prohibited."

In another blow to opponents of the law, Conti added that the law's language, making it illegal to "depict" or "convey the impression" of a minor, is not ambiguous.

"Although there may be a degree of ambiguity in the phrase 'appears to be a minor,' any ambiguity regarding whether a particular person depicted in a particular work appears to be over the age of 18 can be resolved by examining whether the work was marketed and advertised as child pornography," Conti's decision states.

But those who fought the law see that argument abused, they say. For example, the ACLU is suing the Oklahoma City police for its June raid of video rental stores and homes to seize copies of the Academy Award-winning 1979 German movie, The Tin Drum.

Police reportedly took action after Oklahomans for Children and Families complained that the film had at least three pornographic scenes containing children. The ACLU charges that the raids were illegal, that the film doesn't contain child pornography, and that it was never marketed as a pornographic picture.

 

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