WASHINGTON -- It didn't take very long for conservative activists to try a second time to eradicate computer-generated smut.
Just two weeks ago, the U.S. Supreme Court tossed out a federal law outlawing any image that "appears to be" of a nude child or teenager under 18 years old. The court's reasoning: If the image was generated by a computer, no actual minor was harmed.
Hours after the court's ruling, Sen. Orrin Hatch, a sober Utah Republican and onetime Mormon bishop, vowed to "craft new legislation," and his allies in the anti-pornography movement got to work.
This week, Attorney General John Ashcroft and several members of Congress invited reporters over to the Main Justice building to reveal the result of the closed-room drafting sessions. Called the Child Obscenity and Pornography Prevention Act (COPPA), the new bill represents their best shot at trying to circumvent a future defeat before the high court.
In their decision last month, the majority of the justices wrote that Congress' first try at banning "morphed" porn was 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."
The original law, overturned on First Amendment grounds, outlawed a certain type of image that "appears to be" of a minor. The new COPPA bill refers to any computer-generated image that is "virtually indistinguishable from that of a minor engaging in sexually explicit conduct."
That's only a mild change in wording, and it may not be enough to save COPPA's fans from another defeat in court. The majority of the justices used precisely that "virtually" phrase when overturning the law, saying that the Justice Department was illogically "arguing that speech prohibited by the (law) is virtually indistinguishable from child pornography."
"The real story there is that they're seeking to define something as child pornography that by definition isn't," says Bob Corn-Revere, an attorney who successfully argued a case for Playboy Entertainment before the Supreme Court. "Child pornography is a crime because making pornographic images with real children is child abuse. Here they're focusing on things that don't involve children -- that don't involve humans at all."
The surprise ruling by the Supreme Court -- most free-speech advocates predicted the first law would be upheld -- hasn't daunted advocates of the second attempt to ban "morphed" child porn.
"Child pornography -- virtual or otherwise -- is detrimental to children," says Rep. Lamar Smith (R-Texas), chairman of the House crime subcommittee. "Without amending current law, we face a proliferation of child pornography."
"The Internet has proved a useful tool for pedophiles and sex predators as they distribute child pornography, engage in sexually explicit conversations with children, and hunt for victims in chat rooms.... The elimination of child pornography in all forms and the protection of children from sexual exploitation should be one of Congress' highest priorities," says Smith, who introduced the COPPA bill.
Congress is moving swiftly, with the eventual passage of COPPA being all but certain.
Smith's subcommittee held a hearing on COPPA on Wednesday, where a top FBI official urged Congress to move quickly to stamp out "morphed" porn.
Michael Heimbach, the chief of the FBI's Crimes Against Children Unit, said that the Supreme Court's decision will "pose a substantial impediment to child pornography prosecutions now and in the future" because anyone charged with being a child pornographer will simply claim the illicit images were morphed from legal adult snapshots or video.
The Supreme Court did not overturn traditional child pornography laws, which have existed since the 1970s. It left intact a ban on photos and videos involving "the use of a minor engaging in sexually explicit conduct."
Heimbach said that the traditional requirement of an actual minor being harmed would hinder convictions. "The foreseeable and tragic result will be that offenders who possess images of real, but unidentified, children will escape prosecution and will continue to use such material to harm still more innocent children," he said.
Just in case some parts of the COPPA get thrown out in Round Two, its backers included the creation of a massive database of child porn photos and videos. It would be maintained by the U.S. Justice Department and available -- at least in theory -- only to police.
Besides creating a mammoth virtual child porn stash, COPPA would also:
- Ban any "computer-generated image" of a minor that includes "actual or simulated lascivious exhibition" of the pubic area.
- Make it illegal to "knowingly possesses" any sexually-suggestive image that is "virtually indistinguishable from that of a pre-pubescent child."
- Outlaw any "attempt" to download or otherwise acquire child pornography, even if the attempt to obtain it is unsuccessful.
- Prohibit the marketing of a legal image of a nude adult as a minor.
