No one needs a First Amendment to write about how cute newborn babies are or to publish a recipe for strawberry shortcake. Nobody needs a First Amendment for innocuous or popular points of view. That's point one. Point two is that the majority--you and I--must always protect the right of a minority--even a minority of one--to express the most outrageous and offensive ideas. Only then is total freedom of expression guaranteed.
--Lyle Stuart in his introduction to The Turner Diaries (1)
In September of 1998, police forces across the world banded together to bring down the Wonderland Club, an online child pornography ring spanning twelve countries. (2) Club membership was contingent on possession of a digital library containing no less than 10,000 indecent images of minors. (3) Members would circulate these photographs throughout the network by sending them from computer to computer as encrypted image files. (4) The network eventually collapsed as the result of a worldwide criminal investigation, code-named Operation Cathedral, when over a hundred men suspected of being members were arrested. (5) Nearly a decade later, in 2007, two undercover reporters, one German and the other British, independently investigated rumors (6) that Wonderland had reemerged and was flourishing as an adult theme park. (7) The reporters confirmed these rumors when they returned with graphic footage of the unsavory activities they had witnessed while undercover. (8)
The new Wonderland, while dedicated to the same cause as the first, was an entirely different beast, it was not a file exchange, but rather a place, with slides and swing sets, schoolrooms and rose-colored bedrooms, and children that moved, spoke, and had sexual relations with adults in real time. (9) Report Mainz, a German television news program, aired a segment featuring scenes from journalist Nick Schader's investigative report. (10) At one point, the camera captures Schader entering a playground, zooming in as he approaches a circle of young children seated calmly on the grass. Moments later, he is propositioned by a small girl. (11)
The taboo nature of the graphically sexual scenes that follow is paralleled only by those featured in Jason Farrell's Wonderland report for British television channel Sky News. (12) During the course of their undercover investigations, Farrell and Schader discovered a dungeon located in a high school basement where children were bound and tortured, came across a club where children spoke of being held against their will and raped repeatedly, and were permitted to enter a room where adults met to watch and participate in the brutal rape of a teenage girl. (13) Though this new Wonderland disappeared shortly after the German and American footage was aired, a new clone has already taken its place. (14)
It is a relief to know that the bleak underworld exposed by Schader and Farrell exists only on the Internet. No real minors were subjected to the violence described above--the sexual partners were little more than high-tech puppets manipulated by adults in an entirely computer-generated environment called Second Life. (15) These online personae, called "avatars," are three-dimensional characters that computer users create to represent themselves in online environments. (16) While some adults design avatars that look like monsters or celebrities, others prefer to adopt a childlike appearance. (17) And while some adults make innocent use of their youthful avatars, others favor less socially acceptable activities and use their young counterparts accordingly. (18) Indeed, "virtual ageplay" (19)--sexual role-play occurring in a virtual world (20) like Second Life, where one avatar appears to be a child and the other an adult--has become a very popular and newsworthy online pastime.
This Comment describes the constitutional problems with legally proscribing "virtual ageplay" (21) under either child pornography or obscenity law. (22) It will begin with an explanation of virtual ageplay and an overview of the laws that bear on its legal standing, followed by a discussion of why regulation of such activity under child pornography law is inappropriate. The Comment concludes by exploring the potential regulation of virtual ageplay under obscenity law, ultimately rejecting that strategy as an unconstitutional restriction on free speech and individual liberty.
WHAT IS SECOND LIFE?
Second Life is a popular virtual world created by Linden Research, Incorporated (Linden). (23) While there are many kinds of virtual environments, many of which are text-based, massively multiplayer online game (MMOG) environments are the most like real-world environments, in appearance and in the way that users can interact with their surroundings and with each other. (24) A user navigates through these virtual worlds as an avatar that, depending on the MMOG, a user can design to look like anything from a wizard, to Bono from U2, (25) to a dominatrix rabbit.
Unlike some online environments that are themed or are specifically tailored to accommodate certain types of roleplay, such as the popular roleplaying games World of Warcraft and Everquest, (26) Second Life has no prefabricated motif, and users are not encouraged to perform set tasks or achieve specific goals. (27) In Second Life, avatars are free to do whatever their creators please: talk, dance, shop, give and attend rock concerts, (28) trade currency, interview for real-world jobs, (29) fly, smoke, and have sex--anything a real person can do, and more. What makes Second Life truly unique, however, is the degree to which users themselves are responsible for creating the environment. (30) At the outset, Linden created the basic software code for Second Life, which laid down the environment's geographical foundations and set the outermost boundaries for what could and could not occur there. (31) Beyond that, individual users are left to create their own content. (32) In Second Life, empty cyberspace can be turned into night clubs, shopping malls, breathtaking natural landscapes, reproductions of real-world places, scenes from dreams, and everything in between. (33) Anyone with enough time and the ability to write new pieces of code can make her fantasy a reality, and those without sufficient time or technological skill can purchase developed land, property, objects, and even complex gestures, such as the ability to French kiss or moonwalk, from someone else. (34)
Although the future of Second Life and similar virtual worlds is uncertain, (35) membership increases daily, (36) and it seems likely that the popularity of the social medium of virtual worlds will only increase as technology advances. (37) In fact, Second Life's economy is growing steadily, and the prospects for investment and development have attracted many new users as well as the attention of many successful real-world companies. (38) Moreover, society is just starting to explore the potential of these forums. For instance, Seventh Circuit federal judge Richard Posner gave an in-world lecture on intellectual property rights to a group of avatars in 2006, (39) and leaders in fields as diverse as architecture and neurology have discussed the use of Second Life as a powerful educational and research tool. (40) For example, John Lester, a research associate at Harvard Medical School, created an island in Second Life for people with Asperger syndrome and their caregivers. (41) The private island provides a safe place for Asperger patients to develop social skills without the pressure of having to face the real-world consequences of failed interactions. (42)
Increasing interest and active participation in virtual worlds are good indications that the popularity of online communities like Second Life will continue to grow, attracting a more diverse user base and impacting the lives of active users ever more significantly. But just as there is great potential for these worlds to have a positive influence on the lives of individuals and on society at large, this social experiment also carries with it potential dangers. Users have already begun to complain about the presence of crime in Second Life, and both the academic and practicing legal communities have started to take these concerns more seriously, writing various papers (cited throughout this Comment) and even in some cases filing lawsuits based on incidents that have occurred in-world. (43)
If the harms arising from participation in virtual worlds only affected people's in-world status, there would be less cause for involvement by real-world legal authorities. However, in-world actions can have real world consequences. For example, the in-world currency of Second Life, called Linden, attained real-world value when users became willing to pay real-world money for virtual property, goods, and services or, indirectly, to pay real-world money for virtual money to buy virtual goods. To facilitate these transactions, Linden Labs set up an online exchange where users can buy or sell Linden dollars. When the LindeX Dollar Exchange closed on February 5, 2008, the Linden traded at 267.7 per U.S. Dollar, and users had spent approximately 1.35 million U.S. Dollars buying virtual goods for use in Second Life since the previous day's closing. (44) Naturally, a number of enterprising Second Life salesmen have already achieved significant real-world success. Virtual real estate developer Ansche Chung, known in-world as Ailin Graef, made a million dollars (and the cover of Business Week) by selling real estate in Second Life. (45) Kevin Alderman, known in world as Stroker Serpentine, in 2007 sold his virtual reproduction of Amsterdam on eBay to a Dutch media firm for $50,000. (46)
The backing of the virtual goods market by real-world currency enables users to violate real-world criminal laws without ever leaving the virtual world. On July 3, 2007, Kevin Alderman brought suit against...