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FindLaw Forum: First Amendment v. virtual porn By Julie Hilden FindLaw Columnist Special to CNN.com

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(FINDLAW) -- The U.S. Supreme Court recently granted review of a case, Reno v. Free Speech Coalition, that raises an interesting First Amendment issue.

The issue is whether, in addition to banning actual child pornography, the government can also ban "virtual" (or "pseudo") child pornography. That is, pornography that appears to depict children, or conveys the impression that it is depicting children, but in fact does not.

Examples of "virtual" child pornography include digitally created images of children and extremely lifelike animations that can fool the viewer into thinking they are real.

The 9th U.S. Circuit Court of Appeals in California has held that a ban of "virtual" child pornography -- embodied in a provision of the Child Pornography Protection Act of 1996 -- is unconstitutional.

The First Amendment, the California court noted, protects images as well as words. And when images with a particular content are specially targeted, the amendment's protections can only be overcome by a compelling interest on the part of the government.

Applying this standard, the court concluded that the First Amendment allows a complete ban on actual child pornography but not a complete ban on "virtual" child pornography -- essentially because the latter does not inflict direct harm on actual children.

But several other federal circuits have disagreed. Thus, it is likely that the Supreme Court took the case in part to resolve the uncertainty.

The members of the Free Speech Coalition, who challenged the ban, had not yet been prosecuted but feared they would be. In the First Amendment context, where "chilling" speech is seen as an evil, that fear was enough to allow a court case to be brought.

Two aspects of the case are novel and intriguing. First, the Supreme Court itself arguably invited the "virtual" pornography alternative in a 1982 ruling.

Second, the "virtual" pornography ban creates a "thought crime" -- for it makes the mere imagination and portrayal of a fictional crime, without any actual crime, illegal.

Did court invite virtual porn?

In a 1982 decision, New York v. Ferber, the Supreme Court as much as invited the creation of pseudo and "virtual" child pornography. Ferber, which upheld a ban on actual child pornography, claimed that serious artistic works involving childhood sexuality would survive the ban.

Why? Because the court asserted reassuringly, "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."

Movie versions of "Lolita" have gone the "pseudo" route, but literary and artistic values were not in fact preserved: "Lolita's" Sue Lyon (15, or older, according to some reports) and Dominique Swain (also 15) looked and behaved significantly older than the 12-year-old character Vladimir Nabokov described.

The ironic consequence was that Humbert Humbert appeared less loathsome, and Lolita more confident and mature, than in the book -- and their relationship seemed less objectionable.

Could a virtual Lolita do better? Perhaps. She might actually appear to be 12. Imagine Lolita, for example, as a younger version of Lara Croft, the "virtual" heroine of the game "Tomb Raider" -- but one who, because of improved technology, is as realistic-looking as Angelina Jolie, who plays Croft in the upcoming movie.

Regardless of the success of pseudo or virtual depictions of children's sexuality, the fact remains that the court offered them as alternatives to make more palatable a full-fledged ban on actual depictions of children's sexuality.

For the court now to reverse itself, and erase these alternatives, would undermine the reasoning of its earlier case.

'Thought crime'

"Virtual" child pornography itself may seem loathsome and hardly worth of the First Amendment's protections, and perhaps that is so.

But if we were to generalize the principle that loathsome "virtual" acts can never be depicted in film or photography, we would be authorizing full-scale censorship, and introducing into our law "thought crimes": victimless crimes that involve no more than the imagination of a criminal act.

Understandably, Congress does not want anyone (writer or reader) even to envision sex involving children, for fear that vision could become real.

That of course is thought control. If we accept it now, we can expect it to broaden. Depictions of "virtual" crimes are common in pop culture and serious art alike.

The movie "Hannibal," for example, might be thought of as a depiction of "virtual" cannibalism: It really does appear that Anthony Hopkins is consuming Ray Liotta's brain while Liotta is still alive. (Fortunately no actual Ray Liotta, to my knowledge, was harmed in the making of the film.)

We know the cannibalism is not real. Such knowledge, however, would probably not save "Hannibal" from a statute banning "virtual cannibalism." What is shown in the movie still appears to be cannibalism and conveys the impression that it is.

(For similar reasons, "virtual" child pornography probably could not be saved from prosecution by a disclaimer noting that it is virtual, not real -- although mandating such disclaimers might still be a good idea.)

The difficulties with saving "Hannibal" from a "virtual cannibalism-ography" ban illustrate the difficulties with the ban on "virtual" child pornography.

Sexual contact with children is an evil that the government, as the Supreme Court has noted, has an interest of "surpassing" importance in preventing. But so are cannibalism, murder and rape.

Congress' decision to choose one crime among many, deem it the worst, and criminalize depictions of only that crime, is arbitrary.

Is child sexual abuse objectively worse than rape? Worse than murder? Worse than cannibalism? Perhaps so, but reasonable minds can differ in answering these sad questions. Child sexual abuse is terrible, but it is not inherently worse than these other crimes.

And were our society to criminalize depictions of all these crimes, it would be obvious that we would be creating a broad category of "thought crimes" -- in which images would have to be weak and indirect to be safe.

And, as the California court noted, it should not be the rule that "[t]he more realistic an imaginary creation is, the less protection it is entitled to under the First Amendment." The most effective art would then be the most illegal.

Message and perspective

The underlying problem is that prohibitions on images will never be able to account for their message or perspective -- only for their roughly defined subject area.

Thus, the devastatingly realistic depiction of rape so well acted by Jodie Foster in "The Accused" could just as easily fall within a "virtual rape" statute as a devastatingly realistic depiction of rape that portrayed the crime as desirable or manly.

The former, of course, probably would never be prosecuted, but would Foster's producers have been willing to risk jail on a gamble that the movie's explicitness would not offend a single prosecutor anywhere in the country?

A regulation that targeted only depictions that encouraged crimes or were positive toward them might protect "The Accused," which definitively sides with the victim. But it would leave as fair game other movies that do not unequivocally condemn crime -- from "A Clockwork Orange" to "The Talented Mr. Ripley."

Perspective is subtle and hard to regulate precisely because it is the essence of speech and thought. It involves not just what we think about, but also what we think about it. In the end, it is up to us, not the government, to decide that.

Julie Hilden, a graduate of Yale Law School, is a freelance writer and the author of the memoir "The Bad Daughter." She practiced First Amendment law as an associate at the Washington, D.C. firm of Williams & Connolly from 1996-99. Julie Hilden is also a FindLaw columnist.

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