No.
00-795
IN
THE UNITED STATES SUPREME COURT
JOHN
D. ASHCROFT, et al.,
Petitioners
v.
THE
FREE SPEECH COALITION, et al.,
Respondents
On
Writ of Certiorari to the
United
States Court of Appeals
For
the Ninth Circuit
BRIEF
OF THE AMERICAN CIVIL LIBERTIES UNION, INSTITUTE FOR THE
ADVANCED
STUDY OF HUMAN SEXUALITY, NATIONAL ASSOCIATION
OF
CRIMINAL DEFENSE LAWYERS, REPORTERS COMMITTEE FOR
FREEDOM
OF THE PRESS, FEMINISTS FOR FREE EXPRESSION,
SOCIETY
OF PROFESSIONAL JOURNALISTS, AND RADIO-
TELEVISION
NEWS DIRECTORS ASSOCIATION, AS
AMICI
CURIAE, IN SUPPORT OF RESPONDENTS
Ann
Brick
American
Civil Liberties Union
Foundation of Northern
California
1663
Mission Street, Suite 460
San
Francisco, CA
94103
Telephone: (415) 621-2493
Ann
E. Beeson
Steven
R. Shapiro
American
Civil Liberties Union
125
Broad Street, 17th Floor
New
York, NY
10004
Telephone: (212)
549-2500
William
Bennett Turner *
Rogers
Joseph O’Donnell & Phillips
311
California St., 10th Floor
San
Francisco, CA 94104
Telephone: (415) 956-2828
*
Counsel of Record
ATTORNEYS
FOR AMICI CURIAE
TABLE OF CONTENTS
Page No.
INTERESTS
OF THE AMICI.................................................................................................................
1
STATEMENT
OF THE CASE...............................................................................................................
3
SUMMARY
OF ARGUMENT . ..........................................................................................................
3
ARGUMENT.......................................................................................................................................
5
Introduction.........................................................................................................................................
5
I.
THE CPPA EXCEEDS THE CONSTITUTIONALLY PERMISSIBLE SCOPE OF REGULATION OF
NONOBSCENE SEXUALLY EXPLICIT SPEECH........................................................................
6
A.
This Court Has Recognized That Even Child Pornography
Laws
Are Limited by the First Amendment....................................................................
6
B.
Despite this Court’s Caution in Ferber, Child Pornography
Laws
Have Been Applied in an Overbroad Manner That
Threatens
Legitimate Speech and Research..................................................................
9
C.
The CPPA Closes off the Only Avenue Left Open by Ferber
for
Legitimate Creators and Users of Prohibited Material -
Material
That Does Not Involve Real Children................................................................
12
II.
EASING THE GOVERNMENT’S CONSTITUTIONALLY-REQUIRED BURDEN OF PROOF FOR
IMPOSING CRIMINAL PENALTIES ON SPEECH IS NOT A COMPELLING INTEREST THAT
JUSTIFIES THE CPPA
14
III.
THE GOVERNMENT CANNOT OUTLAW SPEECH BASED ON THE ASSUMPTION THAT IT MAY
CAUSE SOME VIEWERS TO ACT
ILLEGALLY...................................................................................
17
A.
The Evidence Does Not Support a Connection Between
Virtual
Child Pornography and Actual Harm to Minors...................................................
17
B.
The CPPA Violates this Court's Well Established Limits for
Punishing
Speech on the Theory That it May Encourage
Others
to Engage in Unlawful Behavior........................................................................
22
CONCLUSION...................................................................................................................................
27
INTERESTS OF THE AMICI
Amici
are non-profit organizations who fully support efforts by government to prevent
sexual abuse or exploitation of children but remain concerned about the rights
of publishers, artists, authors, journalists, scholars and citizens to create,
distribute, use and possess every kind of expression permitted by the First
Amendment. [1]/
The
American Civil Liberties Union (ACLU) is a nationwide, nonprofit, nonpartisan
organization with nearly 300,000 members dedicated to the principles of liberty
and equality embodied in the U.S. Constitution. Since its founding in 1920, the ACLU has
litigated numerous cases involving issues of freedom of expression and sexually
explicit speech including, recently,
Reno v. ACLU, 521 U.S. 844 (1997) (challenge to Communications
Decency Act), and Denver Area
Educational Telecommunications Consortium v. Federal Communications
Commission, 518 U.S. 727 (1996) (challenge to indecency provisions of Cable
Television Consumer Protection and Competition Act of 1992). The ACLU of Northern California is a
regional affiliate of the national ACLU.
The
Institute for the Advanced Study of Human Sexuality
is a private graduate school established in 1976 and based in San Francisco,
California. The Institute provides
a graduate course of study for persons preparing for careers in human sexuality
or already working in the field.
The Institute maintains archives, resource centers and research
facilities dealing with primary sexological and erotological material not
available elsewhere.
The
National Association of Criminal Defense Lawyers
(NACDL) is a non-profit corporation founded in 1958 to ensure justice and due
process for persons accused of crime, and to promote the proper and fair
administration of criminal justice.
It has a membership of more than 9,000 attorneys and 28,000 affiliate
members in 50 states.
Feminists
for Free Expression (FFE) is a national not-for-profit organization of diverse
feminist women and men who share a commitment both to gender equality and to
preserving the individual’s right and responsibility to read, view, and produce
expressive materials free from government intervention. Since 1992 it has worked actively to
oppose the misapprehension that censorship may sometimes be in the interest of
women and others who feel unequally treated by society, believing that the goal
of equality is inextricably linked with the values enshrined in our
Constitution’s free speech clause.
The
Reporters Committee for Freedom of the Press is a voluntary, unincorporated
association of news editors and reporters dedicated to defending the First
Amendment and freedom of information interests of the print and broadcast media
since 1970.
The
Society of Professional Journalists (SPJ) is a voluntary non-profit journalism
organization representing every branch and rank of print and broadcast
journalism. SPJ is the largest
membership organization for journalists in the world, and for more than 90
years, SPJ has been dedicated to encouraging a climate in which journalism can
be practiced freely, fully, and in the public interest.
The
Radio-Television News Directors Association is a professional organization
comprised of local and network news executives, educators, students and others
in the radio, television and cable news business and is devoted to electronic
journalism.
All
amici
are concerned about the dangers to free speech and inquiry posed by the Child
Pornography Prevention Act of 1996 (CPPA).
STATEMENT
OF THE CASE
The
Free Speech Coalition and others (respondents) filed this facial challenge to
the constitutionality of the CPPA, which amended the federal child pornography
law to criminalize not just images of real children engaged in sexual conduct,
but any image that "appears to be" or that "conveys the impression" of minors
engaged in sexual conduct. 18
U.S.C. §§ 2252, 2256. The district
court found, inter
alia,
that the CPPA was content-neutral and was not unconstitutionally vague or
overbroad. Pet.App. 50a-65a. The Ninth Circuit Court of Appeals
reversed, holding that the CPPA was vague and overbroad in violation of the
First Amendment. Pet.App. 1a-43a.
After the court below denied a petition for rehearing, this Court granted
the government’s petition for a writ of certiorari on January 22,
2001.
SUMMARY
OF ARGUMENT
The
CPPA creates a new category of criminally prohibited speech: nonobscene “child pornography” that
neither depicts real children nor uses children in its production. The plain language of the “appears to
be” and “conveys the impression” provisions of the CPPA criminalizes a wide
variety of images, including those of young-looking adults as well as minors in
paintings, drawings and sculpture, and those created and used for serious
literary, artistic, political or scientific purposes.
Amici
agree with the court below that the “appears to be” and “conveys the impression”
provisions are facially unconstitutional and are far too subjective and vague
for use in a criminal statute restricting speech. Amici confine this brief to three
points:
1.
Despite
this Court’s caution in New
York v. Ferber,
458 U.S. 747 (1982), child pornography laws have been used to justify
suppression and prosecution of legitimate speech and research ranging from
parental photographs of nude children in the bathtub to journalistic
investigation of the role of law enforcement in online child pornography
prosecutions and medical treatment of pedophilia. By cutting off the only avenue of
protected speech left open for legitimate speech and research – images that do
not involve real children – the CPPA expands the overbreadth of the child
pornography prohibition to the point of
unconstitutionality.
2.
The
government argues in this Court that the CPPA provisions are justified because
advances in technology have made it difficult for the government to meet its
burden to prove that a defendant possessed or distributed images of actual
minors – that is, to prove that the speech is unprotected – before obtaining a
conviction. The government argues
that the CPPA will make it easier to obtain convictions for child pornography,
and that an affirmative defense is available to some defendants who can prove
that the images were produced using adults. But the defense is unavailable to a wide
range of defendants, including all those charged with possession rather than
distribution, creators who use neither real adults nor real children, and
distributors who have no way to prove that an adult was used to produce the
images. Thus, rather than
justifying the law, the reversal of the burden of proof inherent in the CPPA
exacerbates its constitutional defects.
3.
The
government contends that virtual pornography – images that neither depict real
minors nor use real minors in its production – has no First Amendment protection
because the images can lead to actual child molestation. Its contention is based on Congressional
“findings” that such images may “whet the appetite” of potential molesters and
be used to seduce actual minors.
The government submitted no evidence in this case, and the Congressional
findings are not based on reliable evidence. In addition, while government may of
course proscribe actual child exploitation, the First Amendment does not allow
the suppression of speech based on the assumption that it may cause some viewers
to engage in illegal acts unless the speech is directed to inciting imminent
unlawful action and is likely to produce such action. Brandenburg v. Ohio,
395 U.S. 444 (1969).
ARGUMENT
Introduction
In
1984, Congress acted to “expand the child pornography statute to its full
constitutional limits.” United
States v. X-Citement Video, Inc., 513 U.S. 64, 74 (1994). In 1996, Congress exceeded those
limits. It created an entire new
category of criminally prohibited speech: nonobscene "child pornography" that
neither depicts real children nor uses children in its production. As the court of appeals observed,
"Images that are, or can be, entirely the product of the mind are criminalized."
Pet.App. 16a.
The
CPPA criminalizes materials that, by definition, may not appeal to the prurient
interest, may not be patently offensive and may well have serious literary,
artistic, political or scientific value.
Cf. Miller v. California, 413 U.S. 15, 24 (1973) (defining
obscenity). “Child pornography” has
heretofore been confined to materials depicting actual minors performing sexual
acts. See New York v.
Ferber, 458 U.S. 747 (1982).
Prohibitions
of both obscenity and child pornography are “unabashedly content-based
laws.” See New York v.
Ferber, supra, 458 U.S. at 756.
They “run the risk of suppressing protected expression by allowing the
hand of the censor to become unduly heavy.” Id. The proper analysis therefore starts
with the presumption that the CPPA’s content-based restrictions on speech
are “beyond the power of the government.”
Simon & Schuster v. New York State Crime Victims Board, 502
U.S. 105, 115-16 (1991); see United States v. Playboy Entertainment
Group, Inc., 120 S.Ct. 1878, 1888 (2000), quoting R.A.V. v. St. Paul,
505 U.S. 377, 382 (1992) (“Content-based regulations are presumptively
invalid”). As will be seen, the
government’s showing in this case does not overcome that presumption.
I.
THE CPPA EXCEEDS THE CONSTITUTIONALLY PERMISSIBLE SCOPE OF REGULATION OF
NONOBSCENE SEXUALLY EXPLICIT SPEECH
A.
This Court Has Recognized That Even Child Pornography Laws Are Limited by
the First Amendment
In
New York v. Ferber, the Court upheld a state child pornography law that
criminalized images of actual
minors engaged in sexual conduct that were not obscene. The Court recognized that child
pornography laws are nonetheless limited by the First Amendment in two
ways. First, the Court noted that
applications of child pornography laws to material or research with serious
value might violate the First Amendment.
458 U.S. at 773-74. It held
that these overbroad applications "should be cured through case-by-case analysis
of the fact situations to which [the statute’s] sections ... may not be
applied." Id.
at 774. Four concurring justices
expanded on the overbreadth issue.
Justice O’Connor noted that "clinical pictures of adolescent sexuality"
and "pictures of children engaged in rites widely approved by their cultures"
might not "trigger the compelling interests identified by the Court." Id. at 775. Similarly, Justices Brennan and Marshall
opined that the use of materials otherwise within the ambit of the statute may
be protected by the First Amendment if they form part of a work having serious
literary, artistic, scientific, or medical value. Id.
at 776-77. Justice Stevens
explicitly noted that the First Amendment would also protect images that fit
squarely within the prohibition if used for legitimate
purposes:
A
holding that respondent may be punished for selling these two films does not
require us to conclude that other users of these very films, or that other
motion pictures containing similar scenes, are beyond the pale of constitutional
protection. Thus, the exhibition of
these films before a legislative committee studying a proposed amendment to a
state law, or before a group of research scientists studying human behavior,
could not, in my opinion, be made a crime.
Moreover, it is at least conceivable that a serious work of art, a
documentary on behavioral problems, or a medical or psychiatric teaching device,
might include a scene from one of these films and, when viewed as a whole in a
proper setting, be entitled to constitutional
protection.
Id.
at 778. Other courts have suggested
similar limitations on the reach of child pornography laws. [1]/
See United States v. Lamb, 945 F.Supp. 441, 449- 50 (N.D.N.Y.
1996) (recognizing need for a "legitimate use" defense for researchers,
psychiatrists, etc.); United
States v. Fox,
248 F.3d 394 (5th Cir. 2001) (same for artists); U.S. v. Upham, 168 F.3d
532, 534 (1st Cir.), cert. denied, 119 S. Ct. 2353 (1999) (noting
submission to jury of whether defendant's purpose in possessing child
pornography was to produce a serious literary work). In addition, some state child
pornography statutes contain explicit exceptions for work with serious
value. See, e.g.,
Osborne
v. Ohio,
495 U.S. 103, 106 (1990) (Ohio statute contains exception for material used for
"bona fide artistic, medical, scientific, educational ... or other proper
purpose"); Massachusetts v.
Oakes, 491 U.S. 576, 579 (1989) (state statute contains exception for
material "produced ... for a bona fide scientific or medical purpose, or for an
educational or cultural purpose for a bona fide school, museum or library.");
Conn. Gen. Stat. §53(a) (2001) (exception to state child pornography statute for
images possessed for "bona fide artistic, medical, scientific, educational,
religious, governmental or judicial purpose."); Cal. Penal Code §311.2(e) (2001)
(same); Ga. Code Ann. §16-12-100(d) (2001) (same); N.Y. Penal Code §235.15(2)
(McKinney 2000) (same).
Second,
the Ferber Court specifically offered constitutionally protected
alternatives to the speech prohibited by the statute. For example, the Court suggested the use
of young-looking adults or other simulations as a constitutionally protected
substitute for the use of actual minors and, in part, justified its own holding
by pointing to the availability of such a constitutionally protected
alternative. 458 U.S. at 763. The Court thus noted that “a person over
the statutory age who perhaps looked younger could be utilized,” and that
“simulation” could “provide another alternative.” 458 U.S. at 763. Rejecting the idea that simulation might
be unlawful, the Court held that material that does “not involve live
performance or photographic or other visual reproduction of live
performances, retains First Amendment protection.” 458 U.S. at 765 (emphasis added); see
also People v. Ferber, 409 N.Y. Supp. 2d 632, 637 (1978) (noting that
state itself had offered these protected alternatives). In X-Citement Video, supra, the
Court reiterated that nonobscene sexually explicit materials involving adults
“are protected by the First Amendment.”
513 U.S. at 72.
B.
Despite this Court’s Caution in Ferber, Child Pornography Laws
Have Been Applied in an Overbroad Manner That Threatens Legitimate Speech and
Research
Before
considering the constitutionality of the CPPA’s expansion
of
the federal child pornography law, amici wish to make the Court aware of
the very real impact of child pornography laws on legitimate speech and research
even before enactment of the CPPA.
The Ferber Court’s acknowledgement of the constitutional
limitations of imposing criminal liability for nonobscene child pornography has
not stopped the threat to protected speech. Child pornography has in essence become
a strict liability crime for many, including legitimate academics, artists,
journalists and sex researchers, who can no longer safely create or possess
images even in circumstances that do not implicate the government interests
identified in Ferber. Prosecutors have unbridled discretion in
deciding whom to target. Grandparents and parents have been prosecuted for
taking nude photos of their children and grandchildren; some either take years
to mount a successful First Amendment defense, or opt to enter pleas to avoid
protracted litigation. [1]/
Artists, museum directors, advertisers, and mainstream booksellers have
had their works seized and been threatened with prosecution. [1]/
An award-winning journalist has been imprisoned after a court refused to
let him present evidence that he was in fact investigating and reporting on the
problem of child pornography on the Internet. U.S. v. Matthews, 209 F.3d 338
(4th Cir. 2000) (denying journalist’s First Amendment defense that illegal
images were possessed as part of news investigation), cert. denied, 121
S.Ct. 260 (2000).
Sex
researchers have had to limit their research of child pornography and even to
abandon proven clinical techniques for assessing the treatment of sex offenders.
[1]/
The climate for legitimate research has become so fearful that scholars
and researchers did not want their articles cited in this brief for fear of
scrutiny, and some professional sex research associations declined to join this
amicus brief out of fear that their participation could subject their members to
scrutiny and potential criminal liability for their research. Sociology professors have also been
threatened with prosecution for studying the role of pornography in modern
society. Urofsky v. Gilmore,
216 F.3d 401 (4th Cir. 2000), cert. denied, 121 S.Ct. 759 (2001); Robert
O'Harrow, Jr., "Professors Sue Over Va Law Governing Explicit Material On
Internet," The Washington Post May 9, 1997 (discussing censorship of
professor's web site). Even
criminal defense attorneys do not have an exception to possess images to assist
them in the defense of their client.
On
the other side of the coin, certain persons who possess and receive child
pornography involving real children appear to enjoy immunity from
prosecution. For example, companies
that market Internet blocking programs employ hundreds of staff members who
download illegal child pornography to add to the programs' lists of sites to
block. Jon Bigness, "Sifting
Problems of Web Filters," Chicago Tribune, February 16, 1998; Jeffrey
Savitskie, "In Macomb County:
Library to Block Net Porn From Kids," The Detroit News, August 13,
1997. In addition, the brief of the National Center for Missing
& Exploited Children in this case discusses its possession and review of
illegal images. See Amicus
Curiae Brief of National Center for Missing & Exploited Children, at 8
(“NCMEC analyzes all reported images of child pornography to determine whether a
violation of federal child pornography laws may have occurred Ľ
“); id. at 18 (“Reports of apparent child pornography are forwarded to
NCMEC, where trained analysts triage the images and assign a priority value to
the report” before sending to law enforcement).
Against
this background, Congress opted to expand the definition of child
pornography in the CPPA well beyond constitutional limits.
C.
The CPPA Closes off the Only Avenue Left Open by Ferber
for Legitimate Creators and Users of Prohibited Material - Material That Does
Not Involve Real Children
The
only clear safety valve left to creators and users of legitimate speech
involving minors and sexual conduct under Ferber was sexually explicit
material that used fictitious minors.
The CPPA’s criminal penalties unconstitutionally close that safety
valve. Despite the government’s
attempt to narrow the statute to apply only to computer-generated images that
are “virtually indistinguishable” from images of actual minors, the plain language of the statute outlaws sexually explicit
depictions of young-looking adults in films, photographs, videos, etc.,
depictions of children in paintings, drawings, cartoons, video games,
anatomically correct dolls, sculpture, etc., [1]/ and computer-generated or photo composite
images that do not involve real minors.
All of these easily fit within the open-ended "visual depiction"
provision of § 2256(8). [1]/ The CPPA, by redefining certain sexually
explicit materials as child pornography, is invalid because it directly
proscribes constitutionally protected speech.
Even
if case-by-case adjudication of overbroad applications might have protected
legitimate speech and research before the CPPA, the CPPA’s expansion of
liability to nonobscene images of fictitious minors burdens protected speech to
the point of facial unconstitutionality.
Under Ferber, legitimate speakers and researchers could avoid
prosecution by creating or using images that did not involve real children. For example, photographers and
filmmakers could use young-looking adults.
Sex researchers could study and use similar or fictitious images for
research and to treat patients.
These very alternatives were expressly contemplated by this Court in
Ferber, in part to limit the impact of the law on legitimate speech and
research. Because the CPPA
eliminates the ability to create or use even fictitious images of minors engaged
in sexual conduct, it is unconstitutional.
As
a particularly ironic example of the statute’s overbreadth, the CPPA now makes
criminal many of the studies that could inform the Court’s analysis of whether
the government has proven the harm that it alleges. Sex researchers cannot study the impact
of virtual child pornography to determine whether it “whets the appetite” of the
viewer. They cannot determine
whether there is a connection between viewing certain images and committing sex
crimes. Journalists cannot analyze
whether the market for virtual child pornography is actually increasing on the
Internet. The government has now
made a category of speech so illegal that society can no longer have informed
debates about the premises of that illegality. Scientists studying the harmful effects
of illegal drugs are granted licenses that entitle them to possession for
research purposes, 21 U.S.C. § 823(f), while scientists wanting to examine the
harmful effects from child pornography – though it is speech – face prosecution
for possessing contraband.
II.
EASING
THE GOVERNMENT’S CONSTITUTIONALLY-REQUIRED BURDEN OF PROOF FOR IMPOSING CRIMINAL
PENALTIES ON SPEECH IS NOT A COMPELLING INTEREST THAT JUSTIFIES THE
CPPA
To
justify the CPPA, the government now argues that, absent the "appears to be"
provision, it will be unable to meet its burden of proof in child pornography
prosecutions. Pet.Br. 23-24, 37.
Before the CPPA, child pornography prosecutions required the government
to prove that the defendant possessed or distributed images of an actual
minor. The requirement was imposed
by this Court in Ferber,
whose rationale for allowing a state to ban nonobscene child pornography is the
harm to the minors exploited in the material’s production. [1]/
Lower courts following Ferber have continued to emphasize that the
victims of child pornography "are the children who participate in the
pornography’s production.”
United
States v. Boos,
127 F.3d 1207, 1213 (9th Cir. 1997); United States v. Wiegand, 812 F.2d
1239, 1245 (9th Cir.), cert. denied,
484 U.S. 856 (1987) (rationale of prohibiting child pornography is to ensure
that the child "target" of the "pornographer-photographer" not be "treated as a
thing").
The
government's new argument is simply an effort to lighten its own burden to prove
that speech is unprotected before sending a speaker to jail. It exacerbates the constitutional
defects in the statute for several reasons. First, the government has failed to cite
a single instance of its inability to win a conviction. Despite its experience in hundreds and
hundreds of child pornography prosecutions, it has adduced no evidence that it
has actually been prevented from proving its case. In fact, at the Senate hearing on the
CPPA, the Deputy Assistant Attorney General testified that in a recent year
there were "no acquittals" and "1995 saw the highest conviction rate for child
pornography cases – 97.6 percent.”
Child Pornography Prevention Act of 1995: Hearing before the Senate Comm.
on the Judiciary, 104th Cong., 2d Sess., 15 (1996)(“Senate Hearing”).
[1]/
Congress did not have "substantial evidence" on which to base its
"finding" on the burden of proof point.
See Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 195
(1997).
Second,
the government is essentially arguing that it has a compelling interest in
criminalizing protected speech (images of fictitious minors) because it will aid
the prosecution of unprotected
speech (images of actual minors).
Under that rationale any overbroad censorship law could be justified –
banning protected speech in order to stamp out illegal speech will always make
the government's job easier. That
constitutional shortcut is precisely what the overbreadth doctrine is designed
to prevent. Under Ferber,
moreover, use of underage children is a constitutionally essential element of
the crime. As a matter of due
process, the government must prove all elements of the crime beyond a reasonable
doubt. See, e.g., Francis
v. Franklin, 471 U.S. 307 (1985); Sandstrom
v. Montana,
442 U.S. 510, 524 (1979).
Third,
the government argues that any constitutional problems presented by reversing
the burden of proof are cured by
the affirmative defense, protecting the defendant if the images were produced
using a person who “was an adult at the time the material was produced” and “the
defendant did not advertise, promote, present, describe, or distribute the
material in such a manner as to convey the impression that it is . . . a visual
depiction of a minor engaging in sexually explicit conduct.” 18 U.S.C. § 2252A(c). On its face, this defense applies only
to liability for distribution (§2252A(1)- (4)), and not for
possession
(§2252(5)),
even by legitimate researchers.
See §2252A(c). Thus,
possessors have no defense even
if
they can prove that real adults and not minors were used to produce the images.
[1]/
In addition, mainstream filmmakers who use adult actors to portray
teenage sexual conduct – including Nabokov's Lolita,
Shakespeare's Romeo and Juliet, and Alice Walker's The Color
Purple
– have no defense if they distribute or advertise images that “convey the
impression” that minors are engaged in sexual conduct. Any portrayal of minors engaged in
sexual conduct for any purpose whatsoever is criminal.
In
addition, the defense is practically unavailable to all distributors who did not
participate in production. It would
be difficult if not impossible for each distributor to prove that the persons
depicted are adults. Even creators
of prohibited images have no defense if they did not use real persons at all,
but rather created cartoons, drawings or computer-generated images that appear
to be of minors (which could include sex educators who use drawings to
demonstrate safer sex practices).
Because
the defense is unavailable to most defendants who possess or distribute images
that appear to be of minors, it magnifies rather than cures the CPPA’s
overbreadth. The irony of the
limited statutory defense is that it will protect some commercial pornographers
(if they can prove adults were used as models), while sending researchers and
artists to prison.
III. THE
GOVERNMENT CANNOT OUTLAW SPEECH BASED ON THE ASSUMPTION THAT IT MAY CAUSE SOME VIEWERS TO ACT
ILLEGALLY
A.
The Evidence Does Not Support a Connection Between Virtual Child
Pornography and Actual Harm to Minors
The
government argues that pictures of what "appear to be" minors must be
criminalized because they lead to the commission of illegal sexual acts. It states that virtual child pornography
can be "used by pedophiles and child sexual abusers to stimulate and whet their
own sexual appetites," Pet.Br. 23, and to seduce reluctant minors into sexual
activity. As the court below
correctly held, this argument fails for two reasons. First, as the court of appeals noted, the government has not proven
that there is in fact a causal connection between seeing sexually explicit
images of fictitious minors and actual child molestation. Pet.App. 20a. Second, the government may not ban
all images under the hypothesis that they might cause some viewers
to engage in illegal acts; speech may not be suppressed unless the government
proves that it incites imminent unlawful action and is likely to produce such
action. Brandenburg
v. Ohio,
supra,
395 U.S. at 447.
The
Court cannot simply accept at face value the “findings” recited by Congress as
establishing the facts necessary for the government to meet its First Amendment
burden. “Deference to a legislative
finding cannot limit judicial inquiry when First Amendment rights are at
stake.” Landmark Communications,
Inc. v. Virginia, 435 U.S. 829, 843 (1978); Sable
Communications v. FCC,
492 U.S. 115, 129 (1989); see also United States v. Playboy
Entertainment Group, Inc., 120 S.Ct. 1878, 1886-93 (2000). [1]/
Even when the restriction is on "commercial" speech and is not a criminal
prohibition, the government "must demonstrate that the harms it recites are real
and that its restriction will in fact alleviate them to a material degree."
Greater
New Orleans Broadcasting Ass’n v. U.S.,
527 U.S. 173, 188 (1999), quoting
Edenfield v. Fane, 507 U.S. 761, 770-71 (1993); accord, 44
Liquormart v. Rhode Island, 517 U.S. 484, 505-07 (1996); Rubin v. Coors
Brewing Co.,
514 U.S. 476, 487 (1995).
The
government offered no evidence whatever in this case. It relies solely on the congressional
"findings." The findings are not
grounded in reliable evidence.
Conspicuously lacking is any evidence demonstrating that the use of
computer-generated
images that do not involve real minors
is a serious problem and that the statutory prohibition will advance the
government’s interest in preventing child abuse in a direct and material way.
[1]/
The "findings" were based on a brief committee hearing on one day. Senate Rep. No. 358, 104th Cong., 2d
Sess., 8 (1996) ("Senate Report").
Regarding child abuse involving computer-generated images, the
government’s chief legislative witness, Di Gregory, testified that he was "not
aware of any of this that we have run across in actual prosecutions, and I don’t
recall as I sit here whether or not we have come across this in
investigations." Senate Hearing at
30. [1]/
As the court of appeals observed, there are no factual studies
establishing a link between computer-generated child pornography and subsequent
sexual abuse of children. Pet.App.
20a, citing Adelman, The Constitutionality of Congressional Efforts to Ban
Computer Generated Child Pornography, 14 J. Marshall J. Computer & Info
L. 483, 490 (1996). There was no
evidence before Congress that computer simulations have ever been used in
child abuse. Cf. American
Amusement Machine Ass’n. v. Kendrick, 244 F.3d 572, 578-79 (7th Cir.
2001)(studies "do not find that video games have ever caused anyone to commit a
violent act, as opposed to feeling aggressive, or have caused the average level
of violence to increase anywhere"); Video Software Dealers Ass'n v.
Webster, 968 F.2d 684 (8th Cir. 1992) (invalidating statute designed to
protect minors against violence on television).
Indeed,
there was no evidence before Congress that computer-generated images of virtual
minors is a widespread or serious problem at all. There was anecdotal evidence at the
Senate hearing that pornography might be used to recruit minors for sex, but
adult sexually oriented materials, "mostly materials not even close to
being legally obscene, are even more often used for the same purpose." [1]/ Even "the underwear pages of mail
order catalogues" may be used.
Senate Hearing at 45. [1]/
In
general, the published social science research concludes that there is no
demonstrable causal link between any type of pornography and sexual
offenses. E.g.,
Diamond, The Effects of Pornography: An International
Perspective,
in Elias, et al., Porn
101,
at 223, 241-42 (1999); accord,
Tovar, Elias & Chang, The
Effects of Pornography on Sexual Offending,
in Porn 101, supra, at 261, 272. This is also the finding of the research
commissioned by the 1970 Presidential Commission on Obscenity and
Pornography:
In
sum, empirical research designed to clarify the question has found no evidence
to date that exposure to explicit sexual materials plays a significant role in
the causation of delinquent or criminal behavior among youth or adults. The Commission cannot conclude that
exposure to erotic materials is a factor in the causation of sex crime or sex
delinquency.
Report
of the U.S. President’s Commission on Obscenity and Pornography, 27, 139 (1970).
[1]/
Both
Diamond and the Tovar authors exhaustively review the research and find, for
example, that despite the increased availability of pornography, sex crimes have
decreased:
"there is an inverse causal
relationship between any increase in pornography and sex crimes." Diamond, in Porn 101,
supra,
at 241 (emphasis in original); see Fisher & Barak, Pornography,
Erotica and Behavior, 19 Int’l J. of Law & Psychiatry 65, 74 (1991);
Diamond & Uchiyama, Pornography, Rape and Sex Crimes in Japan, 22
Int’l J. of Law & Psychiatry 1, 19 (1999); Diamond, Porn 101,
supra, at 243; 247; Becker and Stein, Is Sexual Erotica Associated
with Sexual Deviance in Adolescent Males? 19 Int’l J. of Law of Psychiatry 85, 93
(1991).
The
government cites some "available secondary literature" as confirming that
pedophiles use child pornography to seduce other children into sexual activity,
or for their own arousal. Pet.Br.
35, n.6. But nothing in the cited
literature even mentions computer-generated images. Moreover, the authors – like the
witnesses at the Senate hearing – are by and large not scientific researchers
but law enforcement officers or anti-pornography advocates. [1]/
And the conclusory quotations excerpted in the government’s citations do
not cite any research or study on which they could be validly based. Indeed, there was no valid evidence
before Congress on which to predicate the “virtually indistinguishable”
conclusion enacted as the “finding” on which all of the government’s arguments
depend.
B.
The CPPA Violates this Court's Well-Established Limits for Punishing
Speech on the Theory That it May Encourage Others to Engage in Unlawful
Behavior
In
the absence of any proof of actual harm, the crux of the government's argument
is that it can ban nonobscene images of fictitious minors because they
might
encourage some viewers to engage in unlawful behavior by "whet[ting]" the
appetite of potential pedophiles.
But that argument is constitutionally indistinguishable from the
proposition that hate speech can be banned because it may lead to hate
crime. The Court soundly rejected
that proposition in Brandenburg v. Ohio, 395 U.S. 447 (1969), when it
ruled that an audience's possible violent reaction can be imputed to a speaker
only if the speaker's words were directed to "inciting or producing imminent
lawless action and . . . [were] likely to make or produce such action." Compare R.A.V. v. City of St.
Paul, 505 U.S. 377 (1992), with Wisconsin v. Mitchell, 508
U.S. 476 (1993).
The
government acknowledges the Brandenburg rule (Pet. Br. 31), but argues
for an exception that would be a gaping hole in First Amendment protection,
swallowing many forms of expression.
The government’s assertion is that powerful and evocative speech may lead
an impressionable listener to engage in illegal or self-destructive
behavior. The
Brandenburg rule, however, does not rest on the “naive belief that
speech can do no harm but on the confidence that the benefits society reaps from
the free flow and exchange of ideas outweigh the costs society endures by
receiving reprehensible or dangerous ideas.” See Herceg v. Hustler Magazine,
Inc., 814 F.2d 1017, 1019 (5th Cir. 1987), cert. denied, 485 U.S. 959
(1988) (Hustler magazine article on “auto-erotic asphyxiation” that led teenage
boy to hang himself while masturbating protected by First Amendment). Even the explicit advocacy of future
illegal action does not warrant suppression by the government. Hess v. Indiana, 414 U.S. 105,
108 (1973).
Pictures
of juvenile or child sexuality that do not involve real minors cannot be deemed
“advocacy” of illegal conduct, much less “incitement.” To make the point obvious, images
prohibited by the CPPA could not rationally be considered “incitement” if they
were presented at a scholarly conference or couched with warnings. Yet the government argues that such
images can be criminalized
regardless of whether they are possessed by a scientist, journalist, or sex
educator, because of the supposed connection between viewing them and the
seduction of children. But there is
no basis for presuming that sexual images will necessarily or even in many cases
“incite” either reluctant minors or potential molesters to engage in illicit
sexual acts. The “incitement” cases
demand much more convincing evidence than the government has presented
here. See Carey v. Population
Services Int’l, 431 U.S. 678, 701 (1977) (advertising of contraceptives does
not illegally “incite” sexual acts); Kingsley Int’l Pictures Corp. v.
Regents,
360 U.S. 684, 689 (1959) (film did not “incite” adultery); [1]/
American
Amusement Machine Ass’n. v. Kendrick, supra,
244 F.3d at 575 (violent video games not shown to “incite” juvenile violence).
[1]/
Judge
Easterbrook’s opinion in American
Booksellers Ass’n. v Hudnut,
771 F.2d 323 (7th Cir. 1985), aff’d., 475 U.S. 1001 (1986), is a sound
guide to the proper analysis for the instant case. Indianapolis sought to justify its
ordinance on the ground that “pornography affects thoughts.” 771 F.2d at 328. Judge Easterbrook acknowledged that
“people often act in accordance with the images and patterns they find around
them.” Id. at 328- 29. The court therefore accepted for
purposes of argument the “premises” of the ordinance – that depictions of the
subordination of women in fact “tend to perpetuate subordination,” including the
“bigotry and contempt it produces, with the acts of aggression it
fosters...” Id. at 329. The court reasoned, however, that this
“simply demonstrates the power of pornography as speech. All of these unhappy effects depend on
mental intermediation.”
Id. In this sense,
pornography is no different from “racial bigotry, anti-Semitism, violence on
television,” expressions of disrespect for government and so on, since people
who are exposed to the speech may act on it, with undesirable social
consequences. Id. at
330. “Much speech is dangerous”
(id. at 333), but this does not mean that government can outlaw it. Thus, for example, the ugly racist ideas
of the Ku Klux Klan may be communicated, Brandenburg v. Ohio, 395 U.S.
444 (1969); Communists who wish to overturn our government may speak freely,
DeJonge v. Oregon, 299 U.S. 353 (1937); Nazis may march through a largely Jewish
community, Collin v. Smith, 578 F.2d 1197 (7th Cir.), cert.
denied, 439 U.S. 916 (1978); and pornography that “subordinates” women
cannot be made subject even to civil sanctions. American Booksellers Ass’n. v.
Hudnut, supra.
The
government cites only one decision of this Court to support its argument that
the CPPA is justified by the need to stop pedophiles, and it stands for
precisely the opposite conclusion for which the government cites it. In Osborne v. Ohio, the Court
expressly rejected the argument that the private possession of even obscene
material may be punished on the ground that it “would poison the minds of its
viewers.” 495 U.S. at 109; see Stanley v. Georgia, 394 U.S.
557, 565 (1969). The fact that such
material “might lead to deviant sexual behavior” is not sufficient to
criminalize its possession.
Osborne, 495 U.S. at 109 n.4; Stanley, 394 U.S. at
566-67. Osborne upheld a
state statute criminalizing possession of actual child pornography, but reversed
the conviction on due process grounds.
In dictum cited by the government, the Court noted that encouraging
destruction of child pornography is desirable “because evidence suggests that
pedophiles use child pornography to seduce other children into sexual
activity.” 495 U.S. at 111. The Court certainly did not hold, or
even imply, however, that this “suggestion” was sufficient in and of itself to
uphold the constitutionality of the challenged statute. Rather, it was the state's interest in
eliminating the market for real child pornography and thereby protecting
the children who were abused in its production that justified the departure from
the rule in Stanley v. Georgia. Thus, in distinguishing the Ohio statute
from the one struck down in Stanley, the Court stated: “In Stanley, Georgia primarily
sought to proscribe the private possession of obscenity because it was concerned
the obscenity would poison the minds of its viewers. . . . The difference here
is obvious: [T]he State does not rely on a paternalistic interest in regulating
Osborne's mind. Rather Ohio has
enacted [a statute] in order to protect the victims of child pornography; it
hopes to destroy a market for the exploitative use of children.” 495 U.S. at 109. Further, the state statute in
Osborne contained specific exceptions for nude pictures of children for
"artistic," "educational," "research" or other valid purposes. 495 U.S. at 106.
The
government may of course directly prohibit enticing children into sexual acts,
regardless of the enticements used – candy, ice cream, money or erotic
pictures. Indeed, sexual acts and
attempted acts with minors already are crimes in a variety of contexts. E.g., 18 U.S.C. § 2422(b)
(enticing minor to engage in sexual activity); 18 U.S.C. § 2423 (travel with
intent to engage in sexual act with juvenile); Cal. Penal Code § 288; see
also § 311.4(c) (inducing minor to engage in sexual act to make
pornography). The government can
and should engage in vigorous enforcement of these laws. But in enacting the CPPA, it ignored a
practical and less restrictive alternative to the ban of protected speech. Congress rejected the Department of
Justice recommendation that instead of criminalizing nonobscene sexual images
that do not use actual children, it increase the penalties for
obscene
images of children, whether real or virtual. Senate Hearing at 32 (testimony of
Deputy Assistant Attorney General Di Gregory). In contrast to the CPPA, this solution
would ensure protection for legitimate speech and research with serious
literary, artistic, scientific, or medical value. Instead, Congress chose to enact a
statute that violates the First Amendment.
CONCLUSION
For
the foregoing reasons, amici urge the Court to affirm the decision of the
court of appeals invalidating the provisions of the CPPA at issue in this case
because they violate the First Amendment.
Respectfully
submitted,
Ann
Brick
William Bennett Turner *
American
Civil Liberties Union
Rogers Joseph O’Donnell & Phillips
Foundation of Northern California
311 California Street, 10th Floor
1663
Mission Street, Suite 460
San Francisco, CA
94104
San
Francisco, CA 94103
(415) 956-2828
Telephone: (415) 621-2493
*
Counsel of Record
Ann
E. Beeson
Steven
R. Shapiro
American
Civil Liberties Union
125
Broad Street, 17th Floor
New
York, NY
10004
Telephone: (212) 549-2500
Attorneys
for Amici Curiae
June,
2001
TABLE OF AUTHORITIES
FEDERAL CASES
Page
No.
44
Liquormart v. Rhode Island,
517
U.S. 484 (1996) ..............................................................................................................
18
American
Amusement Machine Assn. v. Kendrick,
244
F.3d 572 (7th Cir. 2001) .............................................................................................
19, 24
American
Booksellers Assn. v Hudnut,
771
F.2d 323 (7th Cir. 1985), affd., 475 U.S. 1001 (1986) ...................................................
24, 25
Brandenburg
v. Ohio,
395
U.S. 444 (1969) ..........................................................................................
5,17, 22, 23, 25
Brogan
v. United States,
522
U.S. 398 (1998) ..............................................................................................................
13
Butler
v. Michigan,
352
U.S. 380 (1957) ..............................................................................................................
24
Carey
v. Population Services Intl,
431
U.S. 678 (1977) ..............................................................................................................
23
Collin
v. Smith,
578
F.2d 1197 (7th Cir.), cert. denied, 439 U.S. 916 (1978) ......................................................
25
DeJonge
v. Oregon,
299
U.S. 353 (1937) ..............................................................................................................
25
Denver
Area Educational Telecommunications Consortium v. Federal Communications
Commission,
518 U.S. 727 (1996)
1
Eclipse
Enterprises, Inc. v. Gulotta,
134
F.3d 63 (2d Cir. 1997) .....................................................................................................
24
Edenfield
v. Fane,
507
U.S. 761 (1993) ..........................................................................................................................
18
Francis
v. Franklin,
471
U.S. 307 (1985) ..............................................................................................................
16
Greater
New Orleans Broadcasting Assn v. U.S.,
527
U.S. 173 (1999) ..............................................................................................................
18
Herceg
v. Hustler Magazine, Inc.,
814
F.2d 1017 (5th Cir. 1987), cert. denied, 485 U.S. 959 (1988) ..............................................
23
Hess
v. Indiana,
414
U.S. 105 (1973) ..............................................................................................................
23
Kingsley
Intl Pictures Corp. v. Regents,
360
U.S. 684 (1959) ........................................................................................................
23, 24
Landmark
Communications, Inc. v. Virginia,
435
U.S. 829 (1978) ..............................................................................................................
18
Massachusetts
v. Oakes,
491
U.S. 576 (1989) ...............................................................................................................
8
Miller
v. California,
413
U.S. 15 (1973) .................................................................................................................
5
New
York v. Ferber,
458
U.S. 747 (1982) ......................................................................................................
Passim
Osborne
v. Ohio,
495
U.S. 103 (1990) ...............................................................................................
7, 20, 25, 26
Penn
Dept. of Corrections v. Yeskey,
524
U.S. 206 (1998) ..............................................................................................................
13
R.A.V.
v. City of St. Paul,
505
U.S. 377 (1992) ..........................................................................................................
6, 22
Reno
v. ACLU,
521
U.S. 844 (1997) ...............................................................................................................
1
Rubin
v. Coors Brewing Co.,
514
U.S. 476 (1995) ..............................................................................................................
18
Sable
Communications v. FCC,
492
U.S. 115 (1989) ..............................................................................................................
18
Sandstrom
v. Montana,
442
U.S. 510 (1979) ..............................................................................................................
16
Simon
& Schuster v. New York State Crime Victims Board,
502
U.S. 105 (1991) ...............................................................................................................
6
Stanley
v. Georgia,
394
U.S. 557 (1969) ........................................................................................................
25, 26
Turner
Broadcasting System, Inc. v. FCC,
520
U.S. 180 (1997) ..............................................................................................................
15
U.S.
v. Matthews,
209
F.3d 338 (4th Cir. 2000) ..................................................................................................
10
U.S.
v. Upham,
168
F.3d 532 (1st Cir.), cert. denied, 119 S. Ct. 2353 (1999) ......................................................
7
United
States v. Boos,
127
F.3d 1207 (9th Cir. 1997) ................................................................................................
14
United
States v. Fox,
248
F.3d 394 (5th Cir. 2001) ...................................................................................................
7
United
States v. Lamb,
945
F. Supp. 441 (N.D.N.Y. 1996) ...........................................................................
7, 11, 20, 22
United
States v. Playboy Entertainment Group, Inc.,
120
S. Ct. 1878 (2000) .......................................................................................................
6,18
United
States v. Vig.,
167
F.3d 444 (8th Cir.), cert. denied, 528 U.S. 859 (1999) ........................................................
15
United
States v. Wiegand,
812
F.2d 1239 (9th Cir.), cert. denied, 484 U.S. 856 (1987) ......................................................
14
United
States v. X‑Citement Video, Inc.,
513
U.S. 64 (1994) ..............................................................................................................
5,8
Urofsky
v. Gilmore,
216
F.3d 401 (4th Cir. 2000), cert. denied, 121 S. Ct. 759 (2001) ..............................................
11
Video
Software Dealers Ass'n v. Webster,
968
F.2d 684 (8th Cir. 1992) .............................................................................................
19, 24
Waller
v. Osbourne,
763
F. Supp. 1144 (M.D. Ga. 1992) ........................................................................................
24
Watters
v. TSR, Inc.,
715
F. Supp. 819 (W.D. Ky. 1989) .........................................................................................
24
Wisconsin
v. Mitchell,
508
U.S. 476 (1993) ..............................................................................................................
22
Zamora
v. Columbia Broadcasting System,
480
F. Supp. 199 (S.D. Fla. 1979) ..........................................................................................
24
STATE CASES
Olivia
N. v. NBC,
126
Cal. App. 3d 488 (1981), cert. denied, 458 U.S. 1103 (1982) ..............................................
24
People
v. Ferber,
409 N.Y. Supp. 2d 632 (1978) .................................................................................................
8
FEDERAL STATUTES
18
U.S.C. § 2252 ...............................................................................................................................
3
18
U.S.C. § 2252A(c) ........................................................................................................................
16
18
U.S.C. § 2256 ...............................................................................................................................
3
18
U.S.C. §2422(b) ..........................................................................................................................
26
18
U.S.C. § 2423 .............................................................................................................................
26
21
U.S.C. § 823(f) .............................................................................................................................
14
STATE STATUTES
Cal.
Penal Code § 288 ......................................................................................................................
26
Cal.
Penal Code §311.2(e) .................................................................................................................
8
Conn.
Gen. Stat. §53(a) ......................................................................................................................
8
Ga.
Code Ann. §16‑12‑100(d) .............................................................................................................
8
N.Y.
Penal Code §235.15(2) ...............................................................................................................
8
LEGISLATIVE
HISTORY
Child
Pornography Prevention Act of 1995: Hearing before The Senate
Comm.
on the Judiciary, 104th Cong., 2d Sess., 15 (1996).............................................
15, 19, 26
H.R.Rep.
No. 536, 98th Cong., 2d Sess. (1983), reprinted in 1984
U.S.C.C.A.N. 492 .................................
7
Sen.
Rep. 95-438, 95th Cong. 2d. Sess. (1977), reprinted in 1978 U.S.C.C.A.N.
40
................................
11
Senate
Rep. No. 358, 104th Cong., 2d Sess. (1996) ............................................................................
19
MISCELLANEOUS
Adelman,
The Constitutionality of Congressional Efforts to Ban Computer Generated
Child
Pornography, 14
J. Marshall J. Computer & Info L. 483 (1996) ..........................................
19
Attorney
General’s Commission on Pornography, Final Report (1986) ...................................................
20
Becker
and Stein, Is Sexual Erotica Associated with Sexual Deviance in
Adolescent
Males?,
19 Int’l J. of Law & Psychiatry 85 (1991)
....................................................
21
Campagna
& Poffenberger, The Sexual Trafficking in Children (1988) ...................................................
22
Densen-Gerner,
Child Prostitution and Child Pornography: Medical, Legal, and
Societal
Aspects of the Commercial Exploitation of Children,
reprinted in
U.S.
Dept. of Health and Human Services, Sexual Abuse of Children:
Selected
Readings,
77 (1980).................................................................................................
11
Diamond,
The Effects of Pornography: An International Perspective,
in
Elias,
et al., Porn 101, 223 (1999) ..........................................................................................
20
Diamond
& Uchiyama, Pornography, Rape and Sex Crimes In Japan,
22
Intl J. of Law & Psychiatry 1 (1999) ...................................................................................
21
Dubin, Arresting Images: Impolitic Art and
Uncivil Actions
Routledge,
1992 ...................................................................................................................
10
Finch,
Adult Seduction of the Child: Effects on the Child, Medical Aspects
of
Human
Sexuality 170 (Mar. 1973) ..........................................................................................
11
Fisher
& Barak, Pornography, Erotica and Behavior, 19 Int’l J. of
Law
& Psychiatry 65 (1991)
...................................................................................................
21
Goldstein,
The Sexual Exploitation of Children (2nd ed. 1999) ...............................................................
21
Lanning
& Burgess, Child Pornography and Sex Rings,
53 FBI Law Enforcement Bulletin 10 (Jan.
1984) .....................................................................
20
Marshall,
Assessment, Treatment, and Theorizing About Sex Offenders,
23
Crim. Just. & Behav. 162 (1996) ........................................................................................
10
Report
of the U.S. President’s Commission on Obsenity and
Pornography
(1970) ..............................................................................................................
21
Scalia,
A Matter of Interpretation (1997) ..............................................................................................
13
Schoettle,
Treatment of the Child Pornography Patient,
137
Am J. Psychiatry 1109 (1980) .........................................................................................
11
Sonnenschein,
Sources of Reaction to "Child Pornography"
in
Elias, et al., Porn 101, 527 (1999) ......................................................................................
10
Tate,
Child Pornography: An Investigation (1990) ................................................................................
21
Tovar,
Elias & Chang, The Effects of Pornography on Sexual Offending,
in
Elias, et al., Porn 101, 261 (1999) ......................................................................................
20
NEWSPAPER
ARTICLES
Bigness,
Shifting Problems of Web Filters, Chicago Tribune, Feb. 16, 1998 ..........................................
11
Foerstner,
The Family of Mann, Chicago Tribune, Sept. 19, 1993 ..........................................................
10
Galant,
Anger and Pain Over Nude Photos, The New York
Times,
July 30, 2000 ........................................................................................................................
9
Grace,
Nude-Children Photos Too Weak a Case, DA Says, The
Times-Picayune
October
21, 1997 ..................................................................................................................
10
Jacobs,
Grandmother, Nude Photos and Charges, The New York Times,
Feb.
13, 2000 ........................................................................................................................
9
Justice
Department Won’t Prosecute Klein Over Ads,
The Wall Street Journal
Nov.
16, 1995 .......................................................................................................................
10
Lohmann,
Now, What’s Wrong With This Picture?, The Richmond Times
Dispatch,
Apr. 11, 2000...........................................................................................................
9
O’Harrow,
Jr., Professors Sue Over VA Law Governing Explicit
Material On Internet,
The Washington Post, May 9, 1997 ........................................................
11
Savitskie,
In Macomb County: Library to Block Net Porn from Kids,
The
Detroit News, Aug. 13, 1997 ............................................................................................
11
Smith,
Life Changed in a Day for Mother Accused of Obscenity;
Children
Remain in Custody,
The Plain Dealer, Nov. 11, 2000 .....................................................
9
Sterngold,
Censorship in the Age of Anything Goes, The New York
Times,
Sept.
28, 1998 .....................................................................................................................
10
Thomas
& Farhi, Calvin Klein Ads Cleared, The Washington Post,
Nov.
6, 1995 .........................................................................................................................
10
Zimmerman,
Photo Processors Face Developing Dilemma: When to Call
the
Police,
The Wall Street Journal, June 1, 2001 .........................................................................
10
[1].
Pursuant to Rule 37(3)(a), amici have obtained the written
consents of the parties, which have been lodged with the Clerk. No party wrote any part of this brief or
contributed to its financial support.
[2].
In
addition, when amending the federal child pornography law to conform with
Ferber in 1984, Congress considered whether to include an explicit
affirmative defense for “serious literary, artistic, scientific, social or
educational value.” After
considering the following testimony from the Department of Justice that such a
defense was unnecessary, Congress did not enact an explicit defense: “Even in the absence of the affirmative
defense provided in H.R. 2432, a defendant may take the position that the
application of the child pornography statute to his case is unconstitutional and
falls within the ‘tiny fraction of the materials within the statute’s reach’
which the Court recognized should receive constitutional protection. 458 U.S. at 772-74. Thus, the affirmative defense provision
(which was not in the New York statute approved by Ferber) is
unnecessary.” H.R.Rep. No. 536,
98th Cong., 2d Sess. 13
(1983), reprinted in 1984 U.S.C.C.A.N. 492, at 504 (testimony of Mark M.
Richard, Dep. Ass’t Atty. Gen.).
[3].
See Bill Lohmann, "Now, What's Wrong With This Picture?," The
Richmond Times Dispatch, Apr. 11, 2000 (discussing prosecution of Cynthia
Stewart in Oberlin, Ohio, for photographs of her 8-year-old daughter in the
bathtub, and stating Ms. Stewart’s belief that she did nothing wrong but "agreed
to enter a counseling program rather than go to trial [have her child testify in
court] and face 16 years in prison if convicted"); Robert L. Smith, "Life
Changed in a Day for Mother Accused of Obscenity; Children Remain in Custody,"
The Plain Dealer, Nov. 11, 2000 (discussing frequency of mothers who take
pictures of their children being charged with exploiting them, and mentioning
Cynthia Stewart case); Andrew Jacobs, "Grandmother, Nude Photos and Charges,"
The New York Times, Feb. 13, 2000 (discussing prosecution of Marian
Rubin, a 66-year-old grandmother, social worker and amateur photographer in
Montclair, New Jersey, for nude photographs of her granddaughters; also
discussing earlier case involving Ejlat Feuer, a photographer who in 1994 faced
child pornography charges based on nude photos of his daughter; though the
charges were ultimately dropped, Mr. Feuer spent $80,000 to defend himself, and
stated, "I don't know if I'll ever reconcile what happened to me and my
family."); Debra Galant, "Anger and Pain Over Nude Photos," The New York
Times, July 30, 2000 (reporting that grandmother Marian Rubin agreed to be
placed in a pretrial intervention program without admitting guilt, and noting
$25,000 in legal fees for defense); Zimmerman, "Photo Processors Face Developing
Dilemma: When to Call the Police," The Wall Street Journal, June 1, 2001
(jailing of Marian Rubin).
[4].
See Stephen Dubin, Arresting Images: Impolitic Art and Uncivil
Actions (Routledge, 1992), pp. 170-90 (discussing 1990 prosecution and
ultimate acquittal of Cincinnati museum director for child pornography charges
based on Robert Mapplethorpe exhibit); James Sterngold, “Censorship in the Age
of Anything Goes,” The New York Times, September 28, 1998 (citing
indictments of Barnes & Noble bookstores in Alabama and Tennessee for
carrying books alleged to be child pornography, including works by Jock Sturges
and David Hamilton); Stephanie Grace, "Nude-Children Photos Too Weak a Case, DA
Says," The Times-Picayune, Oct. 21, 1997 (discussing ultimate decision of
Louisiana District Attorney from Jefferson Parish not to bring criminal charges
against Barnes & Noble for selling books by Jock Sturges and Sally Mann);
Abigail Foerstner, "The Family of Mann," Chicago Tribune, September 19,
1993 (referring to state and federal authorities confiscating photographs and
equipment from Jock Sturges though ultimately a grand jury refused to indict
him); Pierre Thomas & Paul Farhi, “Calvin Klein Ads Cleared,” The
Washington Post, November 16, 1995 (discussing Justice Department inquiry
into whether fashion ads featuring adults in underwear could lead to prosecution
as child pornography because the models looked "underage"); “Justice Department
Won’t Prosecute Klein Over Ads,” The Wall Street Journal, November 16,
1995 (Justice Department decision not to prosecute Calvin Klein for ads
condemned by some as child pornography).
[5].
See,
e.g., W.L.
Marshall, Assessment, Treatment, and Theorizing About Sex Offenders, 23
Crim. Just. & Behav. 162 (1996) (reviewing research by Marshall and others
about child pornography over the past twenty years); Sonnenschein,
Sources of Reaction to "Child Pornography", in Elias, et al., Porn
101, 527-31 (1999) (describing concerns over use of "The Inevitable
Comparison" photographs for scholarly conference). The chilling effect on legitimate
research is particularly ironic because Congress itself relied on such research
when passing the prior version of the federal law. See Sen. Rep. 95-438, 95th Cong.
2d. Sess. at 4 (1977), reprinted in 1978 U.S.C.C.A.N. 40, 42 (citing Robin
Lloyd, For Money or Love: Boy Prostitutes in America, which documented more than 260 magazines
depicting minors engaged in sexually explicit conduct). This Court cited similar studies in
New York v. Ferber, 458 U.S. at 758 n.9 (citing Schoettle, Treatment
of the Child Pornography Patient, 137 Am J. Psychiatry 1109 (1980);
Densen-Gerner, “Child Prostitution and Child Pornography: Medical, Legal, and
Societal Aspects of the Commercial Exploitation of Children,” reprinted in U.S.
Dept. of Health and Human Services, Sexual Abuse of Children: Selected
Readings 77 (1980); Finch, Adult Seduction of the Child: Effects on the
Child, Medical Aspects of Human Sexuality 170 (Mar. 1973)). As one district
court has recognized, "[i]t is difficult to imagine how a researcher today could
catalog so many publications of this sort without running afoul of the child
pornography law." U.S. v.
Lamb, 945 F.Supp. 441, 450 n.4 (N.D.N.Y. 1996).
[6].
If an
artist created a parody of the famed "Mannequin Pis" statue in Brussels, Belgium
(of a cherubic boy urinating into a fountain), perhaps giving the boy an
erection, the sculpture (and certainly a "photograph" of it) would fall within
the statutory language.
[7].
The
Court will not limit the reach of a statute where its plain language has not
been qualified by Congress.
Penn Dept. of Corrections v. Yeskey, 524 U.S. 206 (1998);
Brogan v. United States, 522 U.S. 398, 408 (1998). As Justice Scalia has put it, “The text
is the law, and it is the text that must be observed.” Scalia, A Matter of
Interpretation, 22 (1997).
[8].
The
Court said so no fewer than 15 times:
458 U.S. at 749 (“exploitive use of children in the production of
pornography”), 750 (“use of a child in a sexual performance”), 753 (“sexual
activity involving children”), 758 (“use of children as subjects”), 758 n.9
(“sexually exploited children”; “molestation by adults is often involved in the
production of child sexual performances”); 759 (“permanent record of the
children’s participation”), 759 n.10 (depiction of child “may haunt him in
future years”; “fear of exposure and the tension of keeping the act secret”
cause harm), 761 (issue is “whether a child has been physically or
psychologically harmed in the production of the work”), 762 (“live performances
and photographic reproductions of children engaged in lewd sexual conduct”), 764
(“children engaged in its production”; “sexual conduct by children”), 771
(“employment of children to make sexually explicit materials”), 773 (“employ
children to engage in conduct”).
[9].
As for
the cases cited in the government’s brief (Pet.Br. 37 & n.8), they all
resulted in convictions and each defendant’s argument was unsuccessful. In United States v. Vig., 167
F.3d 444, 450 (8th Cir.), cert. denied, 528 U.S. 859 (1999), the court
held that the government’s burden was not so onerous: the government was not
"required to negate what is merely unsupported speculation ... Proof beyond a reasonable doubt does not
require the government to produce evidence which rules out every conceivable way
the pictures could have been made without using real children."
[10].
The
very existence of the defense makes it clear that the statute in fact covers
images of real adults and is not limited to computer-generated images. See discussion accompanying n.7,
supra.
[11].
In
Playboy, the Court invalidated a statute regulating sexually-oriented
programming on cable television, a statute designed to protect children from
exposure to images of sexual behavior.
The Court refused “to give the Government the benefit of the doubt when
it attempt[s] to restrict speech” and insisted that “the Government bears the
burden of proving the constitutionality of its actions.” 120 S.Ct. at 1888. The Court found unpersuasive the
“anecdotal evidence” relied upon by the government and pointed out that there
was “little hard evidence of how widespread or how serious” the particular
problem was. Id. at 1889-90.
[12].
As the
court of appeals observed, the Senate in fact recognized that banning "entirely
computer-generated images might render the law unconstitutional." Pet.App. 28a,
n.11. The Senate Committee was
warned by the author of the Attorney General’s Commission on Pornography Final
Report that this would "highly likely" be unconstitutional. Child Pornography Prevention Act of
1995: Hearing Before the Senate Comm. on the Judiciary, 104th Cong., 2d Sess.,
43 (1996)("Senate Hearing") (testimony of Prof. Frederick Schauer); see
also Sen.Rep.No. 358, 104th Cong., 2d Sess., at 36-37 (minority views of
Sen. Feingold).
[13].
Senator
Grassley immediately requested that Di Gregory submit additional material on
this crucial point (id. at 30), but the record does not contain any such
additional material.
[14].
Senate
Hearing at 45 (testimony of Prof. Frederick Schauer)(emphasis added). Prof. Schauer was the author of the
Report of the Attorney General’s Commission on Pornography. Id. at
113. The Commission stated that
adult pornography is used to seduce children. See Osborne v. Ohio, supra, 495
U.S. at 143-44 n.18 (Brennan, J., dissenting); Attorney General’s Commission on
Pornography, Final Report, 461, n.74 (1986). The Commission found, however, that such
evidence was not sufficient to justify additional restrictions on adult pornography. Final Report at 461,
n.74. The Commission also did not
consider fictional depictions to be child pornography at all, even though
they might be prosecutable if "obscene." Final Report at 405. The Commission explained that child
pornography is "not so much a form of pornography as it is a form of
exploitation of children. The
distinguishing characteristic of child pornography, as generally understood, is
that actual children are photographed while engaging in some form of
sexual activity ... " Id.; see
also id at 406 ("child pornography includes the sexual abuse of a real
child")(emphasis added); id. at 597; therefore, "child pornography
is child abuse." Id. at 406 (emphasis in original).
[15].
One
court referred to research done by an FBI Special Agent who specializes in child
abuse cases, Kenneth V. Lanning.
See United States v. Lamb, 945 F.Supp. 441, 450 (N.D.N.Y.
1996). The empirical study, based
on a sample of 40 child abusers, reviewed their modus operandi and noted that
they seduce their victims by a variety of "pressures," including giving "money,
gifts and affection." Lanning &
Burgess, Child Pornography and Sex Rings, 53 FBI Law Enforcement Bulletin
10, 12 (Jan. 1984). The study found
that "Pedophiles are skilled at the seduction process. They know how to use bribes, attention,
affection, adult authority, and even threats" to get their victims to do their
bidding. Id. The study made
no mention of any seduction by the use of any type of
pornography.
[16].
The Attorney General’s Commission did find a link (see note 14,
supra), but the "Meese" Commission did not commission any research and
this finding has been criticized as largely political. E.g., Diamond,
supra, at 226.
[17].
Seth Goldstein, the author of The Sexual Exploitation of Children
(2d ed. 1999), is a former Berkeley police officer who did no independent
research for his law enforcement manual.
Shirley O’Brien’s 1983 book long predates the technology at issue here.
Tim Tate, Child Pornography: An Investigation (1990), written by a
reporter, is out of print. Campagna
and Poffenberger, who were at least academics (Castleton State College and
West Virginia Northern Community
College), limited their discussion of child pornography – so as to avoid "highly
subjective" and "complex" definitional issues – to photographs that "show minors
engaged in sexual activities with adults, other children and animals," The Sexual Trafficking in
Children 117 (1988), the kind of material addressed by New York v.
Ferber, 458 U.S. 747 (1982).
The "independent investigator" quoted by the government on pedophiles
using pornography for arousal (Pet.Br. 39) is in fact an FBI agent. See United States v. Lamb, supra,
945 F.Supp. at 450.
[18].
In
Kingsley, the Court invalidated a state law that banned any “immoral”
film, defined as a film that portrayed “acts of sexual immorality” as
“desirable, acceptable, or proper.”
New York had denied a license to the film of “Lady Chatterley’s Lover”
because it portrayed adultery as “right and desirable.” The Court reasoned that the state banned
the film because it “advocates an idea – that adultery under certain
circumstances may be proper behavior.
The State, quite simply, has thus struck at the very heart of
constitutionally protected liberty.”
360 U.S. at 688. See
also, Butler v. Michigan, 352 U.S. 380, 381 (1957) (reversing conviction
under statute that banned a book “tending to the corruption of the morals of
youth.”).
[19].
Accord,
Eclipse Enterprises, Inc. v. Gulotta, 134
F.3d 63 (2d Cir. 1997) (trading cards depicting heinous crimes not harmful to
minors, rejecting contention that minors “imitate” such crimes); Video
Software Dealers Ass’n v. Webster, 968 F.2d 684 (8th Cir. 1992)
(invalidating statute designed to protect minors against violence on
television); Waller v. Osbourne, 763 F.Supp. 1144, 1150-51 (M.D. Ga.
1992) (lyrics suggesting that young listeners commit suicide protected by First
Amendment); Watters v. TSR, Inc., 715 F.Supp. 819 (W.D. Ky. 1989)
(“Dungeons and Dragons” game not legally responsible for causing suicide;
protected by First Amendment); Zamora v. Columbia Broadcasting System,
480 F.Supp. 199 (S.D. Fla. 1979) (broadcasters of television violence may not be
held liable for causing imitative criminal act); Olivia N. v. NBC, 126
Cal.App.3d 488 (1981), cert. denied, 458 U.S. 1108 (1982) (same;
“copycat” criminal act following television program).