Free-speech activists said they would appeal a San Francisco judge's decision to uphold the 1996 Child Pornography Protection Act, a ruling they called ridiculous. The court on Tuesday rejected arguments that a new federal definition of pornography created an overbroad and unconstitutional prior restraint on content.
"The court totally ignored the fact that this law creates a whole new unprotected category of speech - non-obscene depictions of what only appear to be minors engaged in sexual activity," said William Bennett Turner, a First Amendment specialist in San Francisco who, in conjunction with the American Civil Liberties Union, filed a brief arguing that the Child Pornography Protection Act was unconstitutionally vague. "It galls me that the court ruled that the law is content-neutral."
"Anyone who's concerned about the First Amendment should find this ruling scary," said Louis Sirkin, who originally filed suit on behalf of the Free Speech Coalition, a group of more than 600 producers and distributors of adult-oriented materials. Sirkin was denied the chance to argue his case in court when US District Court Judge Samuel Conti last week canceled a hearing on the matter in favor of perusing both sides' briefs in the comfort of his chambers. He will appeal the decision today.
In his original brief, Sirkin argued that the 1996 law, which bans visual depictions that are or appear to be "of a minor engaged in sexually explicit conduct," is so broad that it could criminalize the manufacture or possession of any movie - think Lolita or Romeo and Juliet - in which a body double is used to depict a minor involved in sexual activity.
In Tuesday's decision, however, Conti rejected that argument outright, finding that the child-porn act merely attempts to limit the consequences of pseudo-child-smut. "Even if no children are involved in the production of sexually explicit materials, the devastating ... effect that such materials have on society and the well-being of children merits the regulation of such images," Conti wrote.
While well-intentioned, that judgment, says Ann Brick, a staff attorney with the Northern California ACLU, is completely inconsistent with the Supreme Court's definition of content-based regulation. "Over and over again, the court has ruled that banning speech because of its potential secondary affect on listeners is an unconstitutional restraint on content."
"I mean, if your argument is, 'It's illegal because it might make someone want to go out and have sex with kids,' where do you draw the line? What about books that describe sex with kids? What about movies that depict adults having sex? What about sexy drawings and paintings?"
According to a brief filed by government attorneys, part of the Child Pornography Protection Act's explicit aim was, in fact, to move that line forward and address the digital-age problem of technologically manufactured juvi porn.
But that argument is ridiculous, contend Turner and Brick. "There is a real difference between touching children sexually and touching computer keys to create images: The former is wrong in itself and within the power of government to prohibit; but there is nothing inherently wrongful about using either a computer or adults to create sexually explicit images," argued the ACLU brief.
