Computer-generated Child Pornography: a Legal Alternative?

• Publication year: 1998

SEATTLE UNIVERSITY LAW REVIEWVolume 22, No. 2FALL 1998

Computer-Generated Child Pornography: A Legal Alternative?

Wendy L. Pursel(fn*)

Meanwhile he carved his snow-white ivory With marvellous triumphant artistry And gave it perfect shape, more beautiful Than ever woman born. His masterwork Fired him with love. It seemed to be alive, Its face to be a real girl's, a girl Who wished to move-but modesty forbade. Such art his art concealed. In admiration His heart desired the body he had formed.

Pygmalion Ovid, Metamorphoses

Pygmalion was a man unable to find a suitable woman, and so he sculpted one for himself out of ivory. However, her perfect beauty aroused his passions and he ended up falling in love with his own creation. Luckily for Pygmalion, Venus took pity on him and gave life to the sculpture, and Pygmalion and his bride lived happily ever after. The "Pygmalions" of today are not so fortunate in this age of modern technology. Like Pygmalion's tools, technology allows the modern man to create his own statues of ivory. Computers provide the necessary technology and man provides the creativity. It is this creativity and the uses to which it is put that is the subject of this Comment. For, unlike Pygmalion, some of today's creators have used their artistic ability to impute the ugly morass of their own primal instincts into their creations. The creature born is computer-generated child pornography. And fortunately, Venus has not intervened.

Computer technology has become much more complex within the last decade. Technology allows a user to generate simulated images of child pornography by altering or "morphing"(fn1) innocent photographs that are scanned into a computer. With the dawn of the Internet, users can now disseminate and receive information at a much faster rate and reach a wider population than ever before. Thus, the Internet is a powerful tool for someone wishing to distribute child pornography to a large population.

Although federal statutes criminalize placing child pornography into the federal mails,(fn2) the development of the Internet has made the distribution of information via the electronic analogue of the "mails" much more accessible to the average computer user. Computer technology allows the Internet to distribute information via telephone lines to locations all over the world.(fn3) However, it also creates a new set of problems. Like a twisted version of Alice's looking glass, all the wonderful new possibilities presented by computer technology can easily become contorted into the perverse.

Congress reacted to this capacity to pervert technology by amending an existing child pornography statute to address such technology and its impact on child pornography. The Child Pornography Prevention Act's(fn4) 1996 amendments include computer-generated children(fn5) within its scope by adding "computer-generated image or picture" to the list of visual depictions already criminalized.(fn6)

This Comment does not debate the efficacy of the Child Pornography Prevention Act in accomplishing its purpose-the effective regulation of computer-generated images. Nor does this Comment address adult-simulated child pornography.(fn7) Rather, working under the assumption that the statute accomplishes what it aims to accomplish-namely the regulation of computer-generated child pornography-this Comment looks beyond the statute and its language to the broader discussion of the value in regulating this type of material. Specifically, this Comment will focus on two issues: first, whether legislation regulating computer-generated child pornography can survive First Amendment considerations of free speech, and second, the social arguments made in favor of regulating computer-generated child pornography. As this Comment will show, the government has a strong interest in protecting its children. It likewise has a legitimate interest in protecting other members of society. Both of these interests, combined with the material's lack of social value, propel computer-generated child pornography into that narrow class of unprotected speech in which obscenity and child pornography currently reside, rendering computer-generated child pornography subject to regulation despite any First Amendment concerns.

I. Background

A. Obscenity and Its Spin-Off, Child Pornography

Obscenity has long been recognized as falling outside the protective umbrella of freedom of speech.(fn8) Obscenity's cousin, child pornography, raises many of the same social concerns. Both are regulated in some respect to safeguard society from material that has little or no social value.(fn9)

The foundation for the exclusion of obscenity from First Amendment protection was laid down by the United States Supreme Court in Chaplinsky v. New Hampshire.(fn10) In Chaplinsky, the court stated that:There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene. . . . It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.(fn11)

Although the Court acknowledged the lack of any First Amendment protection for obscene speech more than fifty years ago, it took legislatures quite a while longer to place child pornography within that same category.(fn12) Child pornography first received federal legislative attention in 1977, when Congress met to discuss the rising problem of child pornography in the United States. The Committee on Human Resources passed a resolution stating that the Committee had a "deep and abiding concern" for the well-being of the children of the United States and, because of that concern, felt it necessary to consider legislation targeted toward the elimination of child exploitation.(fn13) The Committee's legislative goal in addressing the issue was to prevent the detrimental effects child pornography has on the children involved.(fn14) Thus, Congress passed the Protection of Children Against Sexual Exploitation Act of 1977.(fn15) In cases interpreting the Act and similar legislation, courts have consistently upheld the Act and other legislative prohibitions of child pornography due to government's legitimate interest in protecting children from the harms of sexual exploitation.(fn16)

B. Judicial Construction of the 1977 Act and Its Progeny

Legislation prohibiting child pornography has been judicially upheld because of its impact on the depicted children. For example, in New York v. Ferber,(fn17) decided in 1982, the Court heard a constitutional challenge to a New York statute that prohibited promoting the sexual performance of minors. The New York law stated that "[t]he care of children is a sacred trust and should not be abused by those who seek to profit through a commercial network based upon the exploitation of children."(fn18) The Court, in acknowledging that nearly all of the States had enacted legislation targeted at combating child pornography, stated that "[t]he legislative judgment, as well as the judgment found in the relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child."(fn19) Furthermore, the Ferber Court stated that "[i]t is evident beyond the need for elaboration that a State's interest in 'safeguarding the physical and psychological well-being of a minor' is 'compelling.'"(fn20)

When the Supreme Court first addressed the issue of child pornography in Ferber, it found that child pornography did not fit within its previous definition of obscenity as enunciated in Miller v. California.(fn21) Almost a decade earlier, the Miller Court created a test for determining obscenity, stating that [t]he basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically denned by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.(fn22) In Ferber, the Court held that the Miller test could not apply to the area of child pornography, given that the test lacked a stated interest in protecting the welfare of the children involved.(fn23) Because the Miller test was designed to combat obscenity and not child pornography, it did not adequately reflect the psychological or physiological state of the child. According to the Court, a child could still be harmed under the Miller test when the work produced had an artistic or literary social value-emotional and physical damage to a child still occurs when the child is depicted in pornography, regardless of how "artistic" the pose.(fn24) To fill that void in the Miller test, the Ferber Court modified the test by holding that "[a] trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered...