Protecting our children and the constitution: an analysis of the 'virtual' child pornography provisions of the Protect Act of 2003.

• Author: Kornegay, James Nicholas

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND TO THE CURRENT DEBATE A. The Dangers of Child Pornography B. The Supreme Court Weighs In: Pornography and the First Amendment 1. First Amendment Jurisprudence Generally 2. Defining the Standard of Obscenity: Miller v. California 3. Possession of Obscene Materials: Stanley v. Georgia 4. A New Class of Unprotected Speech: Child Pornography and New York v. Ferber 5. Possession of Child Pornography: Osborne v. Ohio II. THE CHILD PORNOGRAPHY PREVENTION ACT OF 1996 III. ASHCROFT V. FREE SPEECH COALITION IV. THE CONGRESSIONAL RESPONSE TO ASHCROFT V. FREE SPEECH COALITION: THE PROTECT ACT OF 2003 A. Congressional Findings B. The Child Pornography Provisions: 18 U.S.C. [section] 2256 and [section] 2252A 1. The Revised Definition of Child Pornography of [section] 2256 2. The Affirmative Defense of [section] 2252A a. Interpreting the Affirmative Defense as a Constitutionally Sound Rebuttable Presumption b. A "Complete and Sufficient" Affirmative Defense and the Ability To Meet Its Burden of Production 3. Surviving a Facial Constitutional Challenge C. The Obscenity Offense: [section] 1466A CONCLUSION INTRODUCTION

In 2003, Congress passed the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (PROTECT). (1) The Act was passed as a response to the Supreme Court's 2002 decision in Ashcroft v. Free Speech Coalition, (2) which held unconstitutionally overbroad two provisions of the Child Pornography Prevention Act of 1996 (CPPA) (3) relating to what material could permissibly be described as child pornography. This Note will argue that the statutory amendments to reconstitute the definition of child pornography in the PROTECT Act are a constitutionally sound response to the Supreme Court's concerns and can survive a facial challenge in the courts. Portions of the Act's obscenity offense, however, are likely unconstitutional.

This Note will begin in Part I by providing a background to the issue. Part I will describe the traditional concerns associated with child pornography, its dangers, and the rationale behind its proscription. It will then briefly outline the Supreme Court's past cases with regard to the First Amendment generally and as applied to obscenity and child pornography specifically. Part II will describe the CPPA, the statute at issue in Free Speech Coalition. Part III will examine the Supreme Court's decision in Free Speech Coalition. Part IV will analyze the PROTECT Act and will conclude that the revised statutory definition of child pornography no longer contains within its purview a substantial amount of otherwise protected speech. Further, its reconstituted affirmative defense now adequately protects those individuals on its face. Moreover, the revised statutory definition and the affirmative defense work in tandem to create a rebuttable presumption that is constitutionally sound under the Due Process Clause of the Fifth Amendment. Finally, this Note will argue that the creation of an obscenity offense for distribution and possession of virtual child pornography is a valiant effort to eliminate those materials not proscribable as child pornography. Because the PROTECT Act's obscenity offense fails to fully apply the Court's standard of obscenity as defined in Miller v. California, (4) however, it will not survive judicial review in its current form.

1. BACKGROUND TO THE CURRENT DEBATE

   1. The Dangers of Child Pornography

      Before delving into the legal issues surrounding the First Amendment's protection of free speech and its application to child pornography, it is important first to consider the impact of pornography's production and dissemination. Traditional child pornography, which includes actual children in its production, necessarily involves the sexual abuse or exploitation of children. (5) Victims of child sexual abuse "frequently experience feelings of guilt and responsibility for the abuse and betrayal, a sense of powerlessness, and feelings of worthlessness and low self-esteem." (6) They often display symptoms of nightmares and flashbacks associated with posttraumatic stress. (7) In attempting to cope with the traumatic events associated with child sexual abuse, victims often suffer from substance abuse and depression, can become involved in prostitution, or even attempt suicide. (8)

      As Eva Klain for the National Center for Missing and Exploited Children has noted:

      All these effects may be exacerbated when pornography is involved. Child victims of pornography face the possibility of a lifetime of victimization because the pornography can be distributed indefinitely. Physical, psychological, and emotional effects of child sexual abuse are coupled with the possibility of the pornography resurfacing. Being photographed during sexual abuse intensifies the child's shame, humiliation, and powerlessness. In addition children tend to blame themselves for their involvement in pornography, and this makes the experience that much more painful. (9) Producers and possessors of child pornography use the sexually explicit material in several ways. The material serves as a "permanent record for arousal and gratification" of the abuse of the victimized child. (10) But even more crucial to the well-being of the child, offenders can use the material to blackmail victims by threatening to show the material to others so that the victim is too afraid to go to the police or his parents to tell them he has been abused. (11) The material is also often traded or sold, perpetuating the existence of the photographic record of the victim's abuse. (12) Finally, the material is used by pedophiles "to lower children's inhibitions to engage in sexual behavior" and "to make adult-child sexual activity appear 'normal.'" (13)

   2. The Supreme Court Weighs In: Pornography and the First Amendment

      1. First Amendment Jurisprudence Generally

         The First Amendment to the United States Constitution provides that "Congress shall make no law ... abridging the freedom of speech." (14) Generally, the Supreme Court has held that the First Amendment's guarantee means that content-based restrictions on speech are subject to the so-called "strict scrutiny" standard. To survive judicial review, the government's interest in restricting constitutionally protected speech must be compelling. (15) Even then, the government's regulation "must be narrowly tailored to promote [the] compelling Government interest," (16) meaning it must "choose[] the least restrictive means to further" that interest. (17)

         The Supreme Court has determined, however, that some categories of speech may be regulated and restricted despite the protections of the First Amendment. This is because the Court has deemed these narrow categories of speech to be "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." (18) Among these categories are defamation, (19) incitement, (20) and fighting words. (21) In addition, there are two categories of speech this Note will be looking at more closely: obscenity and child pornography.

      2. Defining the Standard of Obscenity: Miller v. California

         For many years, the Supreme Court struggled with the concept of obscenity. (22) In Roth v. United States, the Court held that the First Amendment did not protect obscenity. (23) Although ideas with "even the slightest redeeming social importance ... have the full protection of the [First Amendment]," obscenity, the Court observed, was "utterly without redeeming social importance." (24)

         The Court in Roth found that the proper standard for determining obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." (25) In Jacobellis v. Ohio, a plurality of the Court held that "contemporary community standards" referred "not to state and local 'communities,' but rather to 'the community' in the sense of 'society at large." (26) Thus, the definition of obscenity became a national standard and did not change depending on geographic location. (27) Rather, it would vary only with the passage of time. (28) The Court, however, only summarily determined that the film in question in Jacobellis was not obscene. (29) Indeed, the trouble with the standard was that it left the factfinder unable to articulate why the material in question was obscene. As Justice Stewart famously noted in Jacobellis, "I know it when I see it." (30)

         In A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General, (31) a three-justice plurality of the Supreme Court further complicated the rule by holding that for the Roth standard to apply,

         three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value. (32) Finally, the Court revealed how split it was in the per curiam opinion of Redrup v. New York. (33) With two Justices dissenting, a seven-Justice majority found constitutional violations in each of the three consolidated cases, but did so on four different grounds. (34)

         A majority of the Court finally coalesced in Miller v. California. (35) The Court in Miller criticized the third prong of the Memoirs test because it forced the prosecution in an obscenity case to "prove a negative," which it viewed as "a burden virtually impossible to discharge." (36) The Court then formulated the obscenity standard as it remains today:

         (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...