Computer crime, first amendment, and child pornography: case law and virtual pornography debate

1st Amendment and Virtual Child Pornography

The question whether "virtual child pornography" should be protected by the First Amendment of the U.S. Constitution depends on whether it is a category of speech that falls under the free speech guarantee of this constitutional provision. The First Amendment in its relevant part provides that "Congress shall make no law & #8230; abridging the freedom of speech." The constitutional guarantee of free speech is not limitless. There are some categories of expression developed by the U.S. Supreme Court that do not enjoy constitutional protection by the First Amendment. One of the non-protected categories is "child pornography." In the case New York v. Ferber of 1982 the U.S. Supreme Court has ruled that child pornography, regardless of whether the material was obscene, is one of the exceptions carved out of the scope of the First Amendment free speech protection because the interest of society in protecting children against abuse outweighs its interest in this form of speech (see Coleman. S. You only live twice: How the First Amendment Impacts Child Pornography in Second Life, p. 1). "Virtual child" pornography material is different from "child pornography" material in so far as it does not make use of real children images. Rather the pictures are completely fictional (see Cisneros, D. "Virtual Child" Pornography on the Internet: A "Virtual" Victim?, p. 1). The question therefore is whether both manifestations of child pornography are to be treated alike under the First Amendment. In its "Ashcroft v. The Free Speech Coalition" decision of 2002 the U.S. Supreme Court considered the constitutional validity of a part of the "Child Pornography Prevention Act" ("CPPA) of 1996 that banned "virtual child" pornography and thereby extended the Ferber rule. The Supreme Court came to the conclusion that this part of the CPPA could not be upheld because it was overbroad and unconstitutional under the First Amendment (see Cisneros, p. 1 f.). Congress had enacted the CPPA in 1996 to fight the ongoing battle against sexual exploitation of children by using a very expansive definition of "child pornography" that proscribed all apparently realistic pornographic depictions of children: actual, virtual, or any combination thereof (see Coleman, p. 202). The result has been that as long as material created the impression that a child was actually been depicted therein, it lost its First Amendment protection (see Coleman, p. 202). The government had presented four arguments why the statutory ban on virtual child pornography would be constitutional. The U.S. Supreme Court rejected all four of the government's arguments and held that the CPPA was overbroad in violation of the First Amendment (see Cisneros, p. 4f.). The Court pointed out that "prohibiting child pornography that does not harm an actual child" is not encompassed by its holding in the Ferber case. It refused to recognize "virtual child" pornography as another manifestation of "child pornography" and by doing so, expanded the field of free speech (see Cisneros, p. 2). The government's first claim had been that "virtual child" pornography could lead to actual instances of child abuse and thus could cause indirect harm to actual children. The Court disagreed stating that "virtual child pornography is not "intrinsically related" to the sexual abuse of children" and that the "causal link is contingent" and indirect" (see Cisneros, p. 3). Second, the government asserted that virtual child pornography could have "the tendency to persuade the audience to commit crimes." The Court found this argument not convincing because the mere prospect of crime would be insufficient to justify laws suppressing protected speech (see Cisneros ibid). Third, the government made the case that eliminating the market for "actual child pornography" would be a sufficient reason to uphold the constitutionality of the CPPA. The U.S. Court found the government market theory not persuading especially there was no actual crime involved in "virtual Child" pornography (see Cisneros, p. 4). Fourth, the government proposed that "virtual child" pornography might impede prosecutions of actual child molesters and pornographers since the virtual images look so realistic. The U.S. Supreme Court rejected also this government notion stating that "the Government may not suppress lawful speech as the means to suppress unlawful speech" (see Cisneros ibid). I find the argumentation of the U.S. Supreme Court very convincing, especially because it sends a clear signal that speech should not be excluded from the First Amendment protection only because its content might be highly undesirable and disturbing. Therefore, in my opinion, "virtual child" pornography should be protected under the First Amendment.