Portions of the Child Pornography Prevention Act of 1996 (CPPA) Declared Unconstitutional
Ninth Circuit Court Defends Virtual Free Speech
December 22, 1999
In a decision handed down on December 17, a three-judge panel of the Ninth Circuit Court in San Francisco ruled 2-1 that the law criminalizing virtual depictions of child pornography violate guaranteed First Amendment Freedoms.
The Wizard, fkap hails this decision for bringing "real world" standards on to the Internet. Both the courts and case law already protected books, paintings, drawings and other materials that did not involve the actual use of children in their production. But when it came to new computer technology, the CPPA attacked these creative artists alone, while protecting traditional works of art or literature. In other words you could write a book and illustrate it with drawings, just don't use Adobe Photo-Paint to make the images realistic and then publish on the Internet!
The judges ruled CPPA unconstitutional as applied to images created by computers or other methods which do not use actual children in the production of pornographic materials depicting children, CPPA violates the free speech guarantee of the First Amendment because it criminalizes ideas.
The statute criminalized the use of fictional images that involve no human being. It seems that lawmakers wanted to protect virtual children as if they were real. Images that are, or can be, entirely the product of the mind were criminalized. The CPPA's definition of child pornography extended to drawings or images that "appear" to be minors or visual depictions that "convey" the impression that a minor is engaging in sexually explicit conduct. It didn't matter whether an actual minor was involved or not.
The court ruled that the government does not have the requisite compelling interest in regulating pornography when no actual children are involved in the illicit images. The court also went on to rule that CPPA is both unconstitutionally vague and unconstitutionally over broad.
This is a tough issue, as it has been throughout history. The WIZARD does not support child pornography. But we have consistently protected free speech in other technologies, from the invention of the printing press. These protections must extend into cyberspace.
