18 U.S.C.S. § 2256(8)(B) prohibits any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture that is, or appears to be, of a minor engaging in sexually explicit conduct. The prohibition on any visual depiction does not depend at all on how the image is produced. The section captures a range of depictions, sometimes called virtual child pornography, which include computer-generated images, as well as images produced by more traditional means. For instance, the literal terms of the statute embrace a Renaissance painting depicting a scene from classical mythology, a picture that appears to be of a minor engaging in sexually explicit conduct. The statute also prohibits Hollywood movies, filmed without any child actors, if a jury believes an actor appears to be a minor engaging in actual or simulated sexual intercourse.
A provision of the Child Pornography Prevention Act of 1996 (CPPA) (18 USCS 2252A(a)) prohibited the possession or distribution of "child pornography," which was defined in another CPPA provision (18 USCS 2256(8)(B)) as including any visual depiction that "is, or appears to be, of a minor engaging in sexually explicit conduct." Thus, 2256(8)(B) banned a range of sexually explicit images, sometimes called "virtual child pornography," that appeared to depict minors but were produced by means other than using real children, as, for example, computer-generated images and images of adults who looked like minors. Various plaintiffs--including a trade association for the adult-entertainment industry, the publisher of a book advocating the nudist lifestyle, a painter of nudes, and a photographer specializing in erotic images--brought a suit for declaratory and injunctive relief in the United States District Court for the Northern District of California against the United States Attorney General and the United States Department of Justice. The plaintiffs alleged, among other matters, that (1) 2256(8)(B) and 2256(8)(D) chilled the plaintiffs from producing works protected by the Federal Constitution's First Amendment, and (2) these provisions were thus overbroad and violative of the First Amendment. The District Court, determining that the provisions were constitutional, granted the government's motion for summary judgment (1997 US Dist LEXIS 12212).
Does the Child Pornography Prevention Act of 1996 (CPPA) abridge freedom of speech?
The Court found that the prohibitions of §§ 2256(8)(B) and 2256(8)(D) are overbroad and unconstitutional. The contention that the CPPA is necessary because pedophiles may use virtual child pornography to seduce children runs afoul of the principle that speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it. That the evil in question depends upon the actor's unlawful conduct, defined as criminal quite apart from any link to the speech in question, establishes that the speech ban is not narrowly drawn. The argument that virtual child pornography whets pedophiles' appetites and encourages them to engage in illegal conduct is unavailing because the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it, absent some showing of a direct connection between the speech and imminent illegal conduct. The argument that eliminating the market for pornography produced using real children necessitates a prohibition on virtual images as well is somewhat implausible because few pornographers would risk prosecution for abusing real children if fictional, computerized images would suffice. Moreover, even if the market deterrence theory were persuasive, the argument cannot justify the CPPA because, here, there is no underlying crime at all. Finally, the First Amendment is turned upside down by the argument that, because it is difficult to distinguish between images made using real children and those produced by computer imaging, both kinds of images must be prohibited. The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process. The Government's rejoinder that the CPPA should be read not as a prohibition on speech but as a measure shifting the burden to the accused to prove the speech is lawful raises serious constitutional difficulties. The Government misplaces its reliance on § 2252A(c), which creates an affirmative defense allowing a defendant to avoid conviction for nonpossession offenses by showing that the materials were produced using only adults and were not otherwise distributed in a manner conveying the impression that they depicted real children. Even if an affirmative defense can save a statute from First Amendment challenge, here the defense is insufficient because it does not apply to possession or to images created by computer imaging, even where the defendant could demonstrate no children were harmed in producing the images. Thus, the defense leaves unprotected a substantial amount of speech not tied to the Government's interest in distinguishing images produced using real children from virtual ones.