The Supreme Court wondered on Tuesday whether a child pornography law might criminalize Hollywood movies that include steamy sex scenes.
Because a federal law bans racy images of adults who appear to be under 18 years old, some justices speculated whether films like Lolita, Titanic and Traffic would be imperiled. All three movies include bedroom scenes in which adult actors play teenagers.
Not all the justices appeared au courant on popular culture. "I don't know whether they depict simulated sexual activity or not. I didn't see any of those movies," Antonin Scalia interjected after about 10 minutes of movie discussion.
The high court is hearing a challenge to a 1996 law that Congress enacted after extensive lobbying by the Justice Department, which claimed that prosecutors needed new powers to stamp out child pornography on the Internet.
But free speech advocates said that the Child Pornography Prevention Act (CPPA) would imperil bit-twiddling in Photoshop where adult photographs were morphed to look more like teens.
Images of minors having sex with adults have been verboten for decades, but Congress' 1996 additions to child porn law made it a felony to possess or distribute any image that "appears to be" a lascivious depiction of a minor.
That doesn't even require nude bodies. A federal appeals court has ruled, in the case of U.S. v. Stephen Knox, that a videotape of fully clothed girls in leotards "can qualify as lascivious exhibitions" and be punished as child pornography.
The Free Speech Coalition, the adult video association challenging the CPPA, says it opposes child pornography but worries that the 1996 law would make felons of even law-abiding pornographers. The coalition says: "The very crux of the matter is that even reasonable people may differ on what 'appears to be' a minor and what 'conveys the impression' that a minor is depicted."
Bruce Taylor, president of the The National Law Center for Children and Families and a fan of the CPPA, says the trade association did better in oral arguments than he expected.
"The government apparently conceded that the statute would apply to Lolita, Traffic and Titanic," said Taylor, who attended the arguments. "I don't think (the government lawyer) knew what the statute said and didn't know any obscenity cases where the Supreme Court has already answered those issues. It wasn't a great argument for the government."
Still, Taylor says, the Justice Department will win. "I think (the Supreme Court will vote) at least 5-4 to uphold the statute. They'll say it narrowly applies only to images that are virtually indistinguishable from real pictures, and it doesn't apply when you use an adult body double."
Taylor is talking about a section of the CPPA that says an accused child pornographer can argue at trial that the images were created using adults and that "the defendant did not advertise, promote, present, describe, or distribute the material in such a manner as to convey the impression that it is or contains a visual depiction of a minor."
A federal judge upheld the law, but the Ninth Circuit Court of Appeals reversed that decision in 1999, ruling that the government did not show a connection between computer-generated child pornography and the exploitation of actual children.
The 2-1 decision says that "the First Amendment prohibits Congress from enacting a statute that makes criminal the generation of images of fictitious children engaged in imaginary but explicit sexual conduct."
Some other appeals courts have ruled the opposite way, and the Justice Department asked the high court to resolve the differences.
Even before the CPPA, child pornography laws already were broad enough to worry First Amendment advocates.
The Supreme Court ruled in 1982 that the government could ban sexual images with serious literary or artistic value in the interest of preventing "the harmful employment of children to make sexually explicit materials for distribution." A 1988 law requires adults who perform in erotic movies to supply names, maiden names and birthdates.
"Congress regarded the material covered by the CPPA as a tool of the crime of child abuse much like burglars' tools are instruments of the crime of burglary," Solicitor General Theodore Olson wrote in legal filings with the Supreme Court.
Olson also argued that unless all child porn is banned it may be impossible for investigators to tell what is real, illegal porn.
Thirty-six states and territories joined the National Center for Missing and Exploited Children, 18 members of Congress and conservative groups such as the Family Research Council in filing friend-of-the-court briefs supporting the government in the child pornography case.
The American Civil Liberties Union, other civil liberties groups and criminal defense lawyers joined media groups and publishers in backing the pornographers.
The case is Ashcroft v. Free Speech Coalition, 00-795.
The Associated Press contributed to this report
