To the U.S. Supreme Court, a virtual child porn law was not only a way to protect minors from sexual exploitation.
Congress' attempt to ban any image that "appears to be" an unclad youth was also, a majority of the justices ruled on Tuesday, akin to prohibiting dirty thoughts.
"First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end," the justices said. "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."
In the 6-3 ruling, which overturned the 1996 Child Pornography Prevention Act (CPPA), the majority said that Congress went too far and violated the First Amendment's guarantee of freedom of speech by outlawing images with serious literary, artistic, political or scientific value.
Tuesday's ruling, from which Chief Justice William Rehnquist dissented, represents the latest setback for the dogged attempts by anti-porn conservatives to enact stiff laws against online pornography: The CPPA promised up to 15 years in prison for the first offense. During testimony before Congress in 1996, advocates for anti-porn groups cited the spread of explicit sex photos on the Internet as justification for the measure.
But so far, courts have repeatedly ruled against Congress. The Supreme Court struck down the Communications Decency Act, which limited "indecent" speech online. A federal appeals court overturned a law restricting "harmful to minors" materials, and another set of federal judges lobbed hard questions about a law coercing libraries to install blocking software.
Now the CPPA has suffered the same fate.
"The CPPA applies to a picture in a psychology manual, as well as a movie depicting the horrors of sexual abuse," Justice Anthony Kennedy wrote for the majority.
He said the award-wining movies Traffic, which depicts the 16-year-old daughter of the nation's drug czar trading sex for drugs, and American Beauty, which also addresses sex with an underage girl, might be at risk.
CPPA had three parts: A ban on a depiction that "appears to be of a minor engaging in sexually explicit conduct;" a ban on advertising such a depiction as including an underage youth; and a ban on modifying an image "to appear that an identifiable minor is engaging in sexually explicit conduct."
The Free Speech Coalition, a California trade association for the adult-entertainment industry, did not challenge the third part of the CPPA in its lawsuit, and the Supreme Court did not overturn it.
"Congress passed an indefensible law that, on its face, would criminalize various scenes in movies such as Traffic and American Beauty and make production and possession punishable by up to 15 years of prison," said Joan Bertin, director of the National Coalition Against Censorship.
"As the Supreme Court recognized, numerous other laws suffice to protect children from sexual exploitation and predation, making this overbroad restriction on speech unnecessary."
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 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.
After the Free Speech Coalition sued, 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, now upheld by the Supreme Court, 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."
Four other appeals courts ruled the opposite way, and the Justice Department asked the high court to resolve the differences.
Even before the establishment of the CPPA, child pornography laws were already 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 birth dates.
One reason the Supreme Court has upheld the earlier laws against First Amendment challenges is that "if it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized. Simulation outside of the prohibition of the statute could provide another alternative."
Rehnquist's dissent claimed that his colleagues should have narrowed the CPPA so it would not prohibit legitimate works.
"CPPA can be construed to prohibit only the knowing possession of materials actually containing visual depictions of real minors engaged in sexually explicit conduct, or computer generated images virtually indistinguishable from real minors engaged in sexually explicit conduct," Rehnquist wrote.
"The mere possession of materials containing only suggestive depictions of youthful looking adult actors need not be so included."
