Virtual Article


By: Lawrence G. Walters, Esq.


Why should the adult Internet industry celebrate a victory for virtual child pornography? That question is currently being asked throughout the adult industry, and by detractors as well. It’s therefore worthy of exploration.


First, a recap of the recent U.S. Supreme Court ruling is in order: The High Court declared a portion of the Child Pornography Prevention Act of 1996 (the “Act” or “CPPA”) unconstitutionally overbroad. The part of the law that the Court invalidated criminalized images which “appear to be” minors engaged in sexually explicit conduct, or materials which “convey the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.” Title 18, U.S.C. 2256(8)(B) & (D). The Petitioners chose not to challenge other portions of the Act which prohibit, for example, electronically morphing the head of a real child onto the body of an adult engaged in sexual activity. The Court found the challenged part of the law to be inconsistent with the requirements of Miller v. California, which mandates, among other things, that materials involving adults must appeal to the “prurient” interest before they can be criminalized. Moreover, the Act provided for severe punishment if just a single scene of a movie contained a graphic depiction of prohibited sexual activity. That is inconsistent with the First Amendment, which requires that a work’s artistic merit be evaluated as a whole, and not dependent on the presence of a single scene. The Court noted that Act was not supported by the traditional rationale for outlawing child pornography. The law prohibits speech that records no crime and creates no victim by its production. The alleged harm, i.e., future criminal acts by pedophiles, does not necessarily flow from the speech, the Court found, but is dependent on future, non-quantifiable probabilities. Thus, the Court held that where speech is neither obscene nor the product of sexual abuse, it retains First Amendment protection.


This was obviously a tough case for the Supreme Court to take, and to decide as it did. Both Attorney General John Ashcroft and the mainstream media have criticized the Court’s decision as a victory for pedophiles and “pornographers.” Of course, those criticisms often fail to draw any distinction between child pornography and adult erotica. Despite the political heat that the Court knew it would draw, the decision is cast in broad, eloquent terms, and constitutes a resounding victory for First Amendment principles.


So how will this decision affect the adult Internet industry, specifically? While the case will not have the same kind of substantial, direct impact on most webmasters as the upcoming decision in Ashcroft v. ACLU, involving the COPA law, the Court’s ruling may have several, more subtle implications. Initially, the Act criminalized content that promoted adult models, in sexual situations, as underage. Caught up in the law’s potential sweep were erotic images that included props such as school girl outfits, pig tails, teddy bears or lollipops, since such accoutrement of youth could result in prosecutions under the portion of the Act prohibiting depictions of individuals who “appear to be” minors, even if the performers were all over the age of 18. This law was a significant source of heartburn for those webmasters who operated “Teen” or “Lolita” sites, which depicted young looking females, all of whom were purportedly over the age of 18. The Court’s decision eliminated any real risk of prosecution for such images under child pornography laws, and reaffirmed that works involving adults which depict the sexual activity of minors, unless obscene, are protected by the First Amendment. Again, the rationale behind the existing child pornography laws was the protection of real children from sexual abuse. The camera captures an actual crime occurring when it photographs child pornography. If there are no children, there is no abuse, and therefore no crime. To uphold a blanket prohibition on the depiction of minors engaged in sexual activity would operate to criminalize an entire category of speech which has produced great artistic works such as Romeo & Juliet, Traffic and American Beauty. As noted by the Court, “Pictures of what appear to be 17-year-olds engaging in sexually explicit activity do not in every case contravene community standards.”


This reference to “community standards” was key to understanding the decision, and the Court’s prevailing approach to erotica in general. For decades, the Supreme Court has relied on the “Miller Test” to determine if sexually oriented speech crossed the line from protected speech to illegal obscenity. While the Miller Test has been the subject of considerable debate, and some Justices have rejected it altogether, this test remains the law of the land when it comes to evaluating the legality of adult erotica. The CPPA omitted several elements of the test with which the majority of the Court has become comfortable. Allowing an entire work to be declared illegal based solely on the presence of a particular scene or set of scenes, without regard to the overall value of the work, whether it was patently offensive or appealed to prurient interests, was more than the Court could tolerate. Over and over again, the Court went out of its way to point out how this challenged law did not comport with accepted obscenity standards, and how the content in question could still be prosecuted under existing obscenity statutes. Those references provide significant insight into the potential decision in the COPA case, and to the likely outcome of any future challenge to the Miller Test. The Court would not likely continue to point out the validity of concepts such as “community standards” and “prurient interest” if it intended to invalidate these terms any time soon. Despite that fact that the Internet has changed many community’s standards forever, the Court does not appear to be willing to abandon the concept entirely. Attorney General John Ashcroft took the hint, and instructed his United States Attorneys to begin retooling indictments based on existing obscenity laws, instead of CPPA charges. Like it or not, it appears that the Miller Test and obscenity laws are here to stay, despite the societal changes brought about by the Internet. Under the Court’s current reasoning, an image of a purported minor engaged in sexual activity, while not illegal per se, may well offend community standards and result in an obscenity prosecution.


The more subtle effects of the decision are 1) the precedential value of the opinion as authority for future cases, and 2) the overall attitude shaping that may result in both the courts and the public. As noted earlier, the decision consistently pays homage to cherished First Amendment principals, and in so doing, makes some broad pronouncements. For example, the Court noted that while Congress may pass valid laws to protect children from abuse, “The prospect of crime, however, by itself does not justify laws suppressing protected speech.” Many local adult entertainment ordinances have been justified by raising the “prospect of crime.” That has been the lynchpin of the so-called “secondary effects” doctrine which allows the government to regulate adult entertainment if the regulation is aimed at reducing these secondary effects and not directed at the content of the expression. This is but one example of how certain statements in the decision may impact important First Amendment jurisprudence. The CPPA decision will be dissected by First Amendment lawyers across the country, in a scavenger hunt for helpful statements such as these, to be used in future cases.


The most surprising aspect of the Court’s decision, in this author’s opinion, was the extensive social commentary on the acceptability of depictions of sexual behavior, even by minors. The Court noted that many states allow individuals to consent to sexual activity, and even marry, at ages less than 18 years. The Court also observed that teenage sexuality has inspired countless literary works and contemporary movies. Our society, the Court said, “has empathy and enduring fascination with the lives and destinies of the young.” The Act was ruled defective given its failure to consider whether works capturing such subjects had “value”. The fact that the current United States Supreme Court would even consider that such works might have value, is a pleasant surprise in itself.


While most adult webmasters will not likely be celebrating the legalization of virtual child pornography, they should recognize the potential benefit that this landmark decision provides. The industry can only hope for such a victory in the two remaining Supreme Court cases to be decided this term. In this decision, at least, the Court has taken a strong and definite stand in favor of First Amendment rights, and has drawn a line in the sand when it comes to protected speech: If it does not involve children and is not obscene, it deserves First Amendment protection. Congratulations to fellow FALA attorney Louis Sirkin, Esq. and the Free Speech Coalition on a job well done.


Lawrence G. Walters, Esquire is a partner with the law firm Walters Law Group. Mr. Walters represents clients involved in all aspects of adult media. Walters Law Group handles First Amendment cases nationwide, and has been involved in significant Free Speech litigation before the United States Supreme Court. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at [email protected]