Child Pornography — Virtually Legal?

Lis Wiehl

Technology is so advanced, we can do virtually anything on computers. Think about the science-fiction thriller “The Matrix.” Keanu Reeves encounters a future in which a computer generated virtual reality is not only indistinguishable from the real world, but also has the same real-world consequences. It's common for photographers to take a face shot of our favorite celebrity and airbrush their waist to give the illusion of a perfect figure. And online daters sometimes take their own headshot and morph it onto the body of someone else — who'd ever know the difference, right?

Actually, that's exactly right. These days it's “virtually” impossible to tell a real picture from a computer generated image. Now, what would you do if you saw your child's face doctored onto a naked body? Call the police? Call your local lawmaker? Well, you wouldn't get very far because the Supreme Court has said it's perfectly legal.

Child pornography is an explosively sensitive topic. We're not just talking about a magazine with the latest playmate. We're talking about a digital issue that permits and fosters the creation of pornographic images that appear to be children, but are not. This makes the Internet a perfect medium for this material that is a hot ticket item of aggravation for both Congress and law enforcement.

Ten years ago, Congress amended the child pornography law — making clear that virtual kiddie porn, even material that doesn't involve real children, is illegal. Lawmakers enacted the Child Pornography Prevention Act of 1996 (CPPA) to fight this growing battle against "sexploitation" of children. According to the CPPA, the material just had to appear to use children (individuals under 18) engaging in sexual conduct — regardless of whether these images had scientific, literary or artistic value. Most of us agree that using real children in pornographic photographs is blatant child abuse.

After Congress drafted the broadly defined CPPA, the question became whether the government can ban a “virtual child” if no child is actually used and the image is completely fictional. Out goes the theory that an actual child is harmed. But, sponsors of the law said real children are harmed by fake pornography. These simulated images can entice children into participating in sexually explicit videos or photographs. Virtual images may also be traded for the real thing, driving the market for child pornography — whetting the sexual appetite of pedophiles.

However, the American Civil Liberties Union took the stance that “there is a real difference between touching children sexually and touching computer keys to create images.” The government has a responsibility to prevent the abuse of children, but what about material that doesn't involve children and is questionably pornographic? First Amendment proponents wonder what happens to material like “Romeo and Juliet” or "American Beauty" that portray teenage sexuality and may or may not be obscene.

The Supreme Court answered this question in 2002. The Court rejected the argument that “virtual child” pornography encourages pedophiles to abuse children. In Ashcroft v. The Free Speech Coalition, the Supreme Court struck down certain sectors of the CPPA relating to virtual kiddie porn. These provisions were considered “overbroad and unconstitutional.” The Court reaffirmed the illegality of pornography, in which an actual child appears, but said “virtual” pornography is legal. The Supreme Court reasoned that real children are not harmed with a virtual child. Writing for the majority, Justice Kennedy said, “The government must not suppress lawful speech as a means to suppress unlawful speech.” The state cannot “reduce the adult population … to reading only what is fit for children,” he added.

John Ashcroft, the U.S. attorney general at the time, said the decision made our ability to prosecute child pornographers “immeasurably more difficult.” Congress passed the PROTECT Act of 2003 (The Prosecutorial Remedies and Other Tools to end the Exploitation of Children). The Act tried to rectify that virtual area where technology makes it almost impossible to distinguish the difference between a real child and a morphed image.

So where are we today? It's illegal to use real children in pornography. Material that is neither obscene nor uses children is constitutionally protected. The PROTECT Act bans sexually explicit material in which virtual children are indistinguishable from real children.

But doesn't the Act fly in the face of the Supreme Court's decision in Free Speech Coalition? So, the question remains, should The Free Speech Coalition case be overruled? On the one hand, if pornographers use “virtual” children, predators of real children might think twice about exploiting real kids — since there's a legal alternative.

But, it seems counterintuitive to maintain that virtual kiddie pornography is not related to child abuse. Virtual child pornography certainly correlates to the very real problem of child abuse, as it promotes and encourages the production and possession. Just as the government argued in the Free Speech Coalition case, it's more difficult to “prosecute pornographers who do use real minors” because as technology improves, it's harder to prove an actual child was used in a particular picture.

One thing is certain: this is not the end of the battle between the thin line that separates First Amendment rights and child abuse. This fight is sure to end up in front of the Supreme Court again. And who knows, with two new justices on the bench and fathers themselves (Justices Alito and Roberts) we could be gearing up for a new era against the world of virtual reality.

Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. She is currently an associate professor of law at the University of Washington School of Law. Wiehl received her undergraduate degree from Barnard College in 1983 and received her Master of Arts in Literature from the University of Queensland in 1985. In addition, she earned her Juris Doctor from Harvard Law School in 1987. To read the rest of Lis's bio, click here.