Stimulation by Simulation: Is there Really any Difference Between Actual and Virtual Child Pornography? The Supreme Cour

• Author: Kelley Bergelt
• Pages: 565-595

Page 565

Kelley Bergelt: I would like to thank my parents, Forrest and Beverly Jones, for all their support and encouragement throughout law school and especially for my Dad's assistance with this comment. I would also like to convey my appreciation to the remarkable board and staff of the Capital University Law Review. I am proud to have worked with such an amazing team of intelligent and dedicated individuals.

I The "New" Child Pornography Market

"We're in a war with people who exploit children for sexual purposes, and we've got to win that war." ¹

Coonskin Park in Cincinnati, Ohio, is known for its enormous playground that caters to children of all ages. Jimmy Williams, age six, plays innocently with his friends on the seesaw.² He is unaware that a convicted pedophile is lurking in the bushes snapping pictures of him and his friends. Later that evening, using fifty dollar software³ commonly shipped with new computers and printers as well as readily available at any software retail outlet, the pedophile, now turned pornographer, creates sexually explicit images using the likeness of Jimmy Williams. These images are simulated so that no one will recognize Jimmy Williams' face. These manufactured images of children performing horrific sexual acts are then transmitted over the Internet to any willing child molester or pedophile willing to pay $5.99 for a peek. These images are now fodder for many sexual predators in the general population to use to encourage children everywhere to participate in the deviant acts necessary for the sexual satisfaction of these perverse adults.

Children like Jimmy Williams have the opportunity to be protected from a system that makes them a facilitator, as well as a victim, of the Page 566 illegal child pornography market. With the growth of the Internet and the advancement of computer software, many pornographers have methods by which to create simulated depictions of children engaging in sexual conduct that are indistinguishable from real children.⁴ The new technologies give high-tech pedophiles a way to create a more diverse variety of child pornography through scanning and animation, all while in the comfort and protection of their home.

Protection from child pornography and the resulting abuse has been an evolving legislative topic.⁵ For decades, federal law has prohibited the production and distribution of child pornography in an attempt to eliminate the market as a whole.⁶ Although Congress has taken enormous measures to increase the criminal statutes, child pornography still remains a serious problem for the legislature because of deficiencies in the system.⁷

The most recent attempt to curb the child pornography market by Congress was the enactment of the Child Pornography Prevention Act of 1996 (CPPA).⁸ The specific language in the statute criminalizes any type of virtual or simulated child pornography, even if real children are not involved.⁹ Congress has determined through numerous studies that virtual child pornography is just as destructive as pornography that uses real children.¹⁰ The enactment of the CPPA was necessary to keep up with the evolving challenges of technology.¹¹ Page 567

The Court has consistently held that child pornography is an unprotected form of content-based speech.¹² However, in April of 2002, the Supreme Court reviewed the CPPA and the First Amendment protection of simulated child pornography and held the statute to be unconstitutional because it was overbroad and void for vagueness.¹³ In a 6-3 decision, the Court agreed with free speech advocates who urged the Court to find the language "appears to be" or "conveys the impression" of minors engaged in sexual activity as constitutionally invalid.¹⁴ This decision will inevitability result in a continued dissemination of child pornography. Simulated child pornography is just as destructive to society as actual child pornography and should not fall within the protections of the First Amendment. In order to remain consistent with congressional intent, the Supreme Court should have upheld the CPPA as a valid regulation with the objective of destroying the child pornography market in its entirety.

Because the CPPA is the most recent attempt by Congress to stamp out the child pornography market, this comment will focus mainly on the reasons why the Supreme Court was wrong to invalidate certain provisions of the statute. This comment will also give a brief analysis of the legislative history that shows compelling congressional intent to abolish the child pornography market as a whole. Early cases that have led to the disagreement concerning simulated child pornography as a class of protected speech by the First Amendment will be compared to more recent court opinions. This includes Free Speech Coalition v. Reno,¹⁵ the first case that placed simulated child pornography in the protected class of speech, which inevitably led to judicial review by the Supreme Court.¹⁶Support for the argument that the Supreme Court should have used a balancing test instead of the strict scrutiny approach will be offered. This includes an analysis of the benefits that the balancing approach will provide when faced with difficult constitutional issues affecting unprotected speech, and more importantly, our children.

Although the CPPA has been held unconstitutional by the Supreme Court, this comment will discuss the positive attributes of the CPPA and its reasons for enactment. A brief review of the new and extremely similar Page 568 legislation introduced as a replacement for the CPPA will also be discussed.¹⁷

Currently, the Attorney General's office is developing "stronger measures to fight child pornography that will survive judicial review."¹⁸Congress has made a firm commitment to protect children from all types of child pornography, including any virtual or simulated creation. There are viable ways to uphold the protections and guarantees of the First Amendment while preserving the safety and well being of our children. I have no doubt that the plight against child pornography has just begun.

II Legislation and Child Pornography

Society and technology were in a different era when Congress began its crusade to stamp out the child pornography market.¹⁹ Congress enacted the first federal legislation aimed at preventing the sexual exploitation of children in 1977.²⁰ The Protection of Children Act was an attempt to prohibit the use of minors engaging in sexually explicit behavior for visual depictions that could be transported in interstate or foreign commerce.²¹Unfortunately, this Act proved to be the first in a long list of federal statutes that were not preventing the harm to children, because enforcement was impractical.²² In order to remain consistent with original legislative intent, Congress enacted the Child Protection Act of 1984²³ to codify the Supreme Court's decision in New York v. Ferber,²⁴ and eliminate any obscenity restrictions previously used in connection with the Miller v. California²⁵ standard. This Act also removed the requirement Page 569 that the pornography be for the purpose of sale, and raised the age of protection from sixteen to eighteen.²⁶

New laws were enacted year after year in response to the Supreme Court's willingness to support congressional intent to destroy the child pornography market.²⁷ As early as 1988, Congress realized the immediate need for regulations on computers because they were becoming a growing source for child pornography.²⁸ In 1996, Congress determined that Internet regulations were necessary in order to control "obscene," "patently offensive," and "indecent" material available on the Internet.²⁹ Thus, the CPPA was developed in response to the inevitable increase in child pornography made possible by the Internet.

A New Forms of Technology Have Enabled Our Worst Nightmare

In an effort to keep up with technological changes that enabled people to create images that look exactly like real children, the CPPA was enacted to broaden the definition of child pornography.³⁰ Unfortunately, the provisions of the CPPA that were created to protect children from pornography have been struck from the statute as being overbroad and against First Amendment protections.³¹ The specific phrases including "appears to be a minor" and "conveys the impression" were...