Computer underground Digest Sun Sep 7, 1997 Volume 9 : Issue 67
ISSN 1004-042X
Editor: Jim Thomas (cudigest@sun.soci.niu.edu)
News Editor: Gordon Meyer (gmeyer@sun.soci.niu.edu)
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Field Agent Extraordinaire: David Smith
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
CONTENTS, #9.67 (Sun, Sep 7, 1997)
File 1--Free Speech Coalition v. Reno (text of CPPA decision)
File 2--Court Upholds Child Pornography Prevention Act (ACLU fwd)
File 3--Wired News on Child Porn Act Decision
File 4--Boylovers, NAMBLA, and Net-vigilantes, from The Netly News
File 5--Cu Digest Header Info (unchanged since 7 May, 1997)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
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Date: Sat, 30 Aug 1997 14:06:22 -0500
From: jthomas3@SUN.SOCI.NIU.EDU(Jim Thomas)
Subject: File 1--Free Speech Coalition v. Reno (text of CPPA decision)
Following is the ruling in _Free Speech Coalition v. Reno_,
which upholds the Child Pornography Prevention Act on First
Amendment grounds, courtesy of Greg Broilesi at
- http://www.parrhesia.com/cp.html
HTML by Greg Broiles .
_________________________________________________________________
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
THE FREE SPEECH COALITION, et al.,
Plaintiffs,
v.
JANET RENO, et al.,
Defendants.
No. C 97-0281 SC
ORDER RE MOTIONS FOR SUMMARY JUDGMENT
FILED AUG 12 1997, Richard W. Wieking, Clerk, U.S. District Court,
Northern District of California
I. INTRODUCTION
Plaintiffs in this action consist of a trade association that defends
First Amendment rights against censorship, the publisher of a book
"dedicated to the education and expression of the ideals and
philosophy associated with nudism," and individual artists whose works
include nude and erotic photographs and paintings. Plaintiffs have
filed a pre-enforcement challenge to the constitutionality of certain
provisions of the Child Pornography Prevention Act of 1996 ("CPPA"),
alleging that they are vague, overbroad, and constitute impermissible
content-specific regulations and prior restraints on free speech. Both
plaintiffs and defendants have moved for summary judgment.
II. BACKGROUND
Congress has passed several laws(1) in an ongoing attempt to combat
child pornography, the market that such pornography has created and
maintained, and the harms that such pornography wreaks on children's
physical, psychological, emotional, and mental health. S. Rep. No.
104-358, at 8 (1996) ("Sen. Rep."). The most recent of these laws was
passed in 1996, and was enacted specifically to combat the use of
computer technology to produce pornography that conveys the impression
that children were used in the photographs or images. In passing the
legislation, Congress recognized that the dangers of child pornography
are not limited to its effect on the children actually used in the
pornography. Additionally, child pornography "stimulates the sexual
appetites and encourages the activities of child molesters and
pedophiles, who use it to feed their sexual fantasies." Sen. Rep. At
12. Child pornography is also used by child molesters and pedophiles
"as a device to break down the resistance and inhibitions of their
victims or targets of molestation, especially when these are
children." Id. at 13. "A child who may be reluctant to engage in
sexual activity with an adult, or to pose for sexually explicit
photos, can sometimes be persuaded to do so by viewing depictions of
other children participating in such activity." Id.
Congress recognized that computer technology is capable of "alter[ing]
perfectly innocent pictures of children. . . to create visual
depictions of those children engaging in any imaginable form of sexual
conduct." Id. at 15. These computer-generated pictures are often
indistinguishable from photographic images of actual children.
"Computer generated images which appear to depict minors engaging in
sexually explicit conduct are just as dangerous to the well-being of.
. . children as material using actual children." Id. at 19. Thus,
Congress passed the 1996 Act in order to prevent the effects that such
computer-generated images might have, even if no children were
actually used in the creation of the images.
Specifically, the CPPA defines child pornography as:
any visual depiction, including any photograph, film, video,
picture, or computer or computer-generated image or picture, whether
made or produced by electronic, mechanical, or other means, of
sexually explicit conduct, where --
(A) the production of such visual depiction involves the use of a
minor engaging in sexually explicit conduct;
(B) such visual depiction is, or appears to be, of a minor engaging
in sexually explicit conduct;
(C) such visual depiction has been created, adapted, or modified to
appear that such an identifiable minor is engaging in sexually
explicit conduct; or
(D) such visual depiction is advertised, promoted, presented,
described, or distributed in such a manner that conveys the
impression that the material is or contains a visual depiction of a
minor engaging in sexually explicit conduct. . . .
18 U.S.C. 2256(8).
The CPPA goes on the define "sexually explicit conduct" as actual or
simulated:
(A) sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the same or
opposite sex;
(B) bestiality;
(C) masturbation;
(D) sadistic or masochistic abuse; or
(E) lascivious exhibition of the genitals or pubic area of any
person.
18 U.S.C. 2256(2).
The CPPA also provides an affirmative defense for violations of the
Act if:
(1) the alleged child pornography was produced using an actual
person or persons engaging in sexually explicit conduct;
(2) each such person was an adult at the time the material was
produced; and
(3) the defendant did not advertise, promote, present, describe, or
distribute the material in such a manner as to convey the impression
that it is or contains a visual depiction of a minor engaging in
sexually explicit conduct.
18 U.S.C. 2252A(c).
Plaintiffs contend that the CPPA "sweeps within its purview materials
that involve no actual children and that traditionally and logically
have never been considered to be child pornography." Pls.' Mem in
Supp. Of Mot. For Summ. Judg. at 3. They argue that the CPPA, by
prohibiting images that appear to be of children, actually
criminalizes the production and sale of legitimate works that include
images that look like children, but that in reality were made using
adults, not children. They allege that the CPPA's "use of overbroad
and vague language criminalizes forms of expression in violation of
the First and Fifth Amendments." Pls.' Mem. in Supp. of Mot. for Summ.
Judg. at 4.
III. LEGAL ANALYSIS
A. Standing
Defendants first argue that plaintiffs do not have standing to bring a
claim in this Court, as they have not suffered "actual or threatened
injury as a result of the putatively illegal conduct of the
defendant." Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464, 472 (1982).
Defendants contend that plaintiffs' activities fall squarely within
the affirmative defense set out in 18 U.S.C. 2252A(c), as plaintiffs
have admitted that their works involve the depiction only of
non-minors(2) and that they do not market their works as child
pornography.(3)
Plaintiffs counter that they have indeed been injured by the CPPA, as
plaintiffs have, in some cases, discontinued the production,
distribution, and possession of the certain materials for fear of
prosecution under the CPPA. The CPPA, therefore, has had a chilling
effect on their speech which is sufficient to constitute standing.
See, e.g., San Diego County Gun Rights Committee v. Reno, 98 F.3d
1121, 1129 (9th Cir. 1996)(holding that a chilling effect on speech is
a sufficient basis to establish standing in overbreadth facial
challenges to government actions involving free speech); Stoianoff v.
Montana, 695 F.2d 1214, 1223 (9th Cir. 1983).
Furthermore, plaintiffs contend that they have standing to bring their
suit because the affirmative defense set out in 18 U.S.C. 2252A(c)
does not protect consumers and distributors who possess the
potentially illegal materials but who are not involved in the
production of sexually explicit materials, and who therefore have no
way of knowing whether or not the persons depicted are real and are
not minors. Plaintiffs have set forth affidavits of businesses and
individuals engaged in distributing, selling, or renting sexually
explicit materials who have withheld or stopped distributing certain
of plaintiffs' products that plaintiffs argue should fit within the
statutory defense, out of fear that they will be prosecuted under the
CPPA for possession of the materials. Plaintiffs are no longer
marketing or sending those products to its distributors. See Virginia
v. Am. Booksellers Ass'n., Inc., 484 U.S. 383, 393 (1988)(harm
resulting from speech regulation may be one of self-censorship).
The Court finds that plaintiffs' allegations are sufficient to
establish the requisite standing to bring their claims before the
Court.
B. Standard of Review
In evaluating the constitutionality of legislation that infringes free
speech under the First Amendment, the Supreme Court has identified the
appropriate criteria by which the language of the act and the purposes
underlying the passage of the act shall be judged. "[T]he government
may impose reasonable restrictions on the time, place, or manner of
protected speech, provided the restrictions are justified without
reference to the content of the regulated speech, that they are
narrowly tailored to serve a significant governmental interest, and
that they leave open ample alternative channels for communication of
the information." Ward v. Rock Against Racism, 491 U.S. 781, 791,
reh'g denied, 492 U.S. 937 (1989)(internal quotations omitted).
In order to determine whether a regulation is content-neutral, "the
principal inquiry. . . is whether the government has adopted a
regulation of speech because of disagreement with the message it
conveys." Id. A "regulation that serves purposes unrelated to the
content of expression is deemed neutral, even if it has an incidental
effect on some speakers or messages but not others." Id.; see also
City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 47-48, reh'g
denied 475 U.S. 1132 (1986)(upholding ordinance prohibiting adult
motion picture theaters within 1,000 feet of residential zones,
churches, parks, or schools on basis that regulation was
content-neutral because it was aimed at the secondary effects of such
theaters on the surrounding community). If it can be shown that the
regulation is justified without reference to the content of the
speech, then it is deemed content-neutral. Renton, 475 U.S. at 48.
The contested provisions of the CPPA are content-neutral regulations.
They have clearly been passed in order to prevent the secondary
effects of the child pornography industry, including the exploitation
and degradation of children and the encouragement of pedophilia and
molestation of children. Furthermore, the Supreme Court has afforded
"greater leeway" to regulations of child pornography. New York v.
Ferber, 458 U.S. 747, 756 (1982). The Supreme Court has "sustained
legislation aimed at protecting the physical and well-being of youth
even when the laws have operated in the sensitive area of
constitutionally protected rights." Id. at 757. Given the nature of
the evils that anti-child pornography laws are intended to prevent,
the CPPA can easily be deemed a content-neutral regulation. For even
if no children are involved in the production of sexually explicit
materials, the devastating secondary effect that such materials have
on society and the well-being of children merits the regulation of
such images.
Plaintiffs' contention that the CPPA is content-specific is
unpersuasive. They claim that the terms of the CPPA clearly target
materials that convey certain ideas to their viewers. The Court finds
that the CPPA is designed to counteract the effect that such materials
has on its viewers, on children, and to society as a whole, and is not
intended to regulate or outlaw the ideas themselves. If child
pornography is targeted by the regulation, it is due to the effect of
the pornography on innocent children, not to the nature of the
materials themselves, especially if that pornography contains
computer-generated images of children. See, e.g., Am. Library Ass'n v.
Reno, 33 F.3d 78, 86 (D.C. Cir. 1994)(legislation requiring producers
of sexually explicit material to document the names and ages of the
persons portrayed was content-neutral, as it was intended "not to
regulate the content of sexually explicit materials, but to protect
children by deterring the production and distribution of child
pornography"); Chesapeake B&M Inc., v. Hartford County, 58 F.3d 1005,
1010 (4th Cir.), cert denied, 116 S.Ct. 567 (1995).
According to the Supreme Court, "[a] content-neutral regulation will
be sustained under the First Amendment if it advances important
governmental interests unrelated to the suppression of free speech and
does not burden substantially more speech than necessary to further
those interests." Turner Broadcasting Sys., Inc. v. Fed.
Communications Comm'n, 117 S.Ct. 1174, 1186 (1997).
The CPPA clearly advances important and compelling government
interests: the protection of children from the harms brought on by
child pornography and the industry that such pornography has created.
It is beyond debate that the protection of children from sexual
exploitation is an important governmental interest; indeed, the
Supreme Court has deemed the protection of the physical and
psychological well-being of minors to be a "compelling" interest.
Ferber, 458 U.S. at 756-7; see also Sen. Rep. At 9 (There is a
"compelling governmental interest [in prohibiting] all forms of child
pornography.") Furthermore, the CPPA burdens no more speech than
necessary in order to protect children from the harms of child
pornography. As stated aforesaid, the CPPA specifically defines
"sexually explicit conduct" as "sexual intercourse, including
genital-genital, oral-genital, anal-genital, or oral-anal, whether
between persons of the same or opposite sex; bestiality; masturbation;
sadistic or masochistic abuse; or lascivious exhibition of the
genitals or pubic area of any person." 18 U.S.C. 2256(2). It also
defines "child pornography" as any visual depiction of sexually
explicit conduct where the production involves the actual use of
minors engaging in such conduct, the depiction is or appears to be of
a minor engaging in such conduct, the depiction has been created,
adapted, or modified to appear that a minor is engaging in such
conduct, or the depiction is advertised, presented or promoted in such
a way as to convey the impression that minor is engaging in such
conduct. 18 U.S.C. 2256(8). Although there may be a degree of
ambiguity in the phrase "appears to be a minor," any ambiguity
regarding whether a particular person depicted in a particular work
appears to be over the age of eighteen can be resolved by examining
whether the work was marketed and advertised as child pornography.
Given that the goal of the CPPA is to prevent the digital manipulation
of images to create child pornography even when no children were
actually used in the production of the material, the CPPA meets that
goal by regulating the narrowest range of materials that might fall
within the targeted category and including an explicit definition of
the prohibited conduct. Congress certainly intended to exclude from
the CPPA's reach materials that do not involve the actual or apparent
depiction of children: "[The CPPA] does not, and is not intended to,
apply to a depiction produced using adults engaging in sexually
explicit conduct, even where a depicted individual may appear to be a
minor." Sen. Rep. At 21.
The affirmative defense laid out in 18 U.S.C. 2252A(c) limits even
further the scope of the CPPA by removing from the range of criminal
behavior the exact type of activity in which plaintiffs claim to
engage. Plaintiffs contend that their works do not involve actual
children, and that their works are not marketed or advertised as works
featuring sexually explicit conduct by children. Their behavior, then,
falls squarely within the category specifically set out by Congress as
beyond the scope of the CPPA. The Court finds that the incidental
harms laid out by the plaintiffs as support for their assertion of
standing in this action do not amount to the CPPA's regulating
"substantially more speech than necessary to further" the goal of
preventing the dangers of child molestation and pedophilia.(4) See
Pls.' Opp. to Defs.' Mot. for Summ. Judg. at 7-8. Although the
effects of a content-neutral speech regulation may be substantial, if
they are incidental and largely unavoidable, they will pass
constitutional muster. Am. Library Ass'n. v. Reno, 33 F.3d at 87-8.
Also, "[t]he mere assertion of some possible self-censorship resulting
from a statute is not enough to render an antiobscenity law
unconstitutional." Fort Wayne Books, Inc. v. Indiana 489 U.S. 46, 60
(1989). The contested provisions of the CPPA survive the intermediate
scrutiny set forth by the Supreme Court for content-neutral
regulations.
The instant case is quite similar to that which the Supreme Court
confronted in New York v. Ferber, 458 U.S. 747 (1982). In Ferber, the
Court upheld a New York statute that prohibited person from knowingly
promoting a sexual performance by a child under the age of 16 by
distributing material which depicts such a performance. The Court
concluded that the statute did not violate the First Amendment.
According to the Court, the unprotected nature of the works involved
permitted the state to prohibit the particular category of works from
distribution, especially given the compelling state interest in
protecting children from the harms of child pornography. 458 U.S. at
765.
The final inquiry this Court must make is whether the regulations
leave open alternative channels for communication of the information
at issue. Defendants contend that "plaintiffs are free to communicate
any substantive message they desire, through any medium they desire,
as long as they are not depicting actual or computer-generated
children engaged in sexually explicit conduct." Defs.' Mem. In Supp.
of Mot. for Summ. Judg. at 20. The Court finds this argument
persuasive. Because plaintiffs allege that their materials are not
produced using minor children, and that they do not market their
materials so as to suggest that they are child pornography or to
exploit the sexual qualities of the work as child pornography,
plaintiffs should have no trouble conforming their activities to fit
within the confines of the text of the CPPA or to escape the reach of
the law altogether.
C. Overbreadth and Vagueness
Plaintiffs contend that the CPPA is unconstitutionally overbroad and
vague. First, regulations that prohibit constitutionally protected
speech as well as activity that can legitimately be prohibited are
considered to be overbroad. Thornhill v. Alabama, 310 U.S. 88, 97
(1940). Plaintiffs base their overbreadth argument on the assertion
that the CPPA "impermissibly suppresses material that is protected
under the First Amendment" by defining child pornography as including
visual depictions of adults that appear to be minors. Pls.' Mem. In
Supp. of Mot. for Summ. Judg. at 12. In doing so, plaintiffs argue,
the CPPA "bans a wide array of sexually-explicit, non-obscene material
that has serious literary, artistic, political, and scientific value."
Pls.' Mem. in Supp. of Mot. for Summ. Judg. at 13. Finally, plaintiffs
cite the Supreme Court's recent ruling in Reno v. ACLU that the
governmental interest in protecting children "does not justify an
unnecessarily broad suppression of speech addressed to adults." 1997
U.S. LEXIS 4037 at *54 (striking as unconstitutional two provisions of
the Communications Decency Act of 1996 that prevent the transmission
of "indecent" and "patently offensive" materials over the Internet).
The Court finds that the CPPA is not overbroad. It specifies that only
materials that do not use adults and that appear to be child
pornography, even if they are digitally produced, are prohibited. By
plaintiffs' own admission, plaintiffs' products do not fall into these
categories and are also exempt under the CPPA's affirmative defense
provisions. It is highly unlikely that the types of valuable works
plaintiffs fear will be outlawed under the CPPA -- depictions used by
the medical profession to treat adolescent disorders, adaptations of
sexual works like "Romeo and Juliet," and artistically-valued drawings
and sketches of young adults engaging in passionate behavior -- will
be treated as "criminal contraband." As long as a work does not depict
children, or what appears to be children, engaged in sexually explicit
conduct as defined by the statute, and the work is not marketed as
child pornography or in such a way that exploits its sexual nature as
child pornography, then there is no likelihood that the work will be
prohibited by the CPPA. The CPPA is not overbroad because it prohibits
only those works necessary to prevent the secondary pernicious effects
of child pornography from reaching minors.
Plaintiffs contend that the CPPA is also unconstitutionally vague
because it does not give a person of ordinary intelligence a
reasonable opportunity to know what is prohibited so that he may act
accordingly. Grayned v. City of Rockford 408 U.S. 104, 108 (1972).
However, the CPPA does exactly what the Supreme Court has required of
child pornography legislation as set out in Ferber: it must (1)
adequately define the prohibited conduct; (2) be limited to visual
depictions of children below a specific age; and (3) suitably limit
and describe the category of forbidden "sexual conduct." 458 U.S. at
764. The CPPA clearly and specifically defines the prohibited conduct
as the depiction of children engaged in sexually explicit conduct. It
is limited to visual depictions of minors, but simply redefines the
term "depiction" to include images of children that were produced
using computers or other artificial means. Finally, it suitably limits
and describes the category of forbidden conduct. As long as the person
portrayed in the work is an adult, and the work is not marketed or
advertised as child pornography and does not convey the impression
that it is child pornography, then the CPPA's affirmative defense
applies and removes the work from the scope of its provisions. The
Court finds that the CPPA is not unconstitutionally vague, as it gives
sufficient guidance to a person of reasonable intelligence as to what
it prohibits.(5)
D. Prior Restraint
Plaintiffs contend that the CPPA imposes a prior restraint on speech
by enacting a complete ban on material that contains sexually-explicit
depictions of adults who appear to be minors and by chilling the
expression of "artists, photographers, film makers, publishers, and
merchants" by preventing them from disseminating such depictions.
Plaintiffs also contend that the CPPA places unbridled discretion in
the hands of government officials and deals an unnecessarily severe
punishment for an incorrect determination of whether or not an adult
appears to be a minor. The Court agrees with defendants that the CPPA
neither completely bans depictions of adults who appear to be minors
nor punishes producers or distributors who create works in which
adults appear who might be mistaken as minors. Indeed, the affirmative
defense laid out in 18 U.S.C. 2252A(c) clearly permits the use of
adults, even if they look like minors, as long as the works in which
they appear are not marketed as child pornography. In addition "[n]o
government official is vested with authority to permit or deny
plaintiffs the right to produce these works, and thus the [CPPA]
imposes no unconstitutional prior restraint on speech." Defs.' Opp. to
Pls.' Mot. for Summ. Judg. at 17-18. The CPPA represents no more of a
prior restraint on speech than the New York statute at issue in
Ferber, and the CPPA comes within the rationale of the Supreme
Court's holding in that case. Because the CPPA does not require
advance approval for production or distribution of adult pornography
that does not use minors, and does not effect a complete ban on
constitutionally protected material, it does not constitute an
improper prior restraint on speech.
IV. CONCLUSION
Therefore, this court finds that the CPPA meets constitutional
standards and is therefore constitutional as written. For the
foregoing reasons, plaintiffs' motion for summary judgment is hereby
DENIED. Defendant's motion for judgment on the pleadings is GRANTED.
IT IS SO ORDERED.
Dated: August 12, 1997.
/s/ Samuel Conti
United States District Judge
1 See Am. Library Ass'n v. Barr 956 F.2d 1178, 1181-85 (D.C. Cir.
1992) for a discussion of the history of national anti-child
pornography legislation.
2 Pls.' Opp. to Defs.' Mot. for Summ. Judg. at 1.
3 Defendants also contend that plaintiffs lack standing because, in
their complaint, plaintiffs allege that they do not produce the type
of "hard-core" sexual images that would be subject to regulation by
the CPPA. As a result, defendants argue, plaintiffs cannot demonstrate
a real and immediate threat of injury and therefore cannot bring this
claim. See Barr, 956 F.2d at 1187. The Court rejects this argument.
The parameters of pornography are difficult to define, and dismissing
plaintiffs' claims for lack of standing is not appropriate in this
case, given the variety of the plaintiffs' products.
4 These incidental harms include the depiction of images created
within the imagination of the artist. If the images depicted are of
children, albeit imaginary ones, and not of actual adults or imaginary
people who unequivocally appear to be adults, then the evils
associated with child pornography cannot be avoided.
5 For examples of other cases that have upheld similarly worded child
pornography statutes against vagueness challenges, see, e.g., U.S. v.
Smith, 795 F.2d 841 (9th Cir. 1986), cert. denied, 481 U.S. 1032
(1987); U.S. v. Lamb, 945 F. Supp. 441 (N.D.N.Y. 1996).
------------------------------
Date: Tue, 2 Sep 1997 15:51:59 GMT
From: "ACLU Cyber-Liberties Update Owner"@newmedium.com
Subject: File 2--Court Upholds Child Pornography Prevention Act (ACLU fwd)
Source - ACLU Cyber-Liberties Update, Tuesday, September 2, 1997
Free speech activists have vowed to appeal a recent decision by a
U.S. District Court for the Northern District of California that
upholds the Child Pornography Protection Act of 1996 ("CPPA"),
calling it vague, overbroad and an impermissible prior restraint
on speech.
The lawsuit, filed by the Free Speech Coalition, which includes
free speech activists and producers and distributors of
"adult-oriented materials," was a pre-enforcement challenge to the
CPPA which argued that the law is so broadly worded that it covers
any picture in which an adult portrays a minor engaged in sexual
activity. The CPPA applies to computer-generated images as well
as films and photographs and bans any visual depiction that "is,
or appears to be, of a minor engaged in sexually explicit
conduct."
In his decision, U.S. District Judge Samuel Conti rejected claims
that the CPPA is content based and stated that the law was passed
to prevent "secondary effects" of the child pornography industry.
"The court finds that the CPPA is designed to counteract the
effect that such materials has on its viewers, on children, and to
society as a whole, and is not intended to regulate or outlaw the
ideas themselves. If child pornography is targeted by the
regulation, it is due to the effect of the pornography on innocent
children, not to the nature of the materials themselves,
especially if that pornography contains computer generated images
of children."
The opinion states that "[e]ven if no children are involved in the
production of sexually explicit materials, the devastating ...
effect that such materials have on society and the well-being of
children merits the regulation of such images."
However, Ann Brick, a staff attorney for the ACLU of Northern
California contended, "This is not a law about using real kids to
make pornography. It's a law that wants to put off-limits the
subject of teenagers engaging in sex --- regardless of whether
real minors are used in the portrayal."
Brick added that Congress did not merely ban computer-generated
images of children in sexual activities, but also declared that it
was "illegal to use young-looking adults if we don't like the way
you marketed it."
She said the rationale used by Congress and Conti -- that the
images would help molesters recruit young victims -- could ban all
"literature that describes sex in a way that makes it seem
beautiful."
In a supporting brief, the American Civil Liberties Union and
others said the vagueness of the law was particularly dangerous in
light of a recent court ruling applying the previous child
pornography ban to sexually suggestive pictures of fully clad
minors. However, Judge Conti's opinion claims that any ambiguity
of the laws application "can be resolved by examining whether the
work was marketed and advertised as child pornography."
Full text of this decision is available at the Free Speech
Coalition Site at <http://www.freeexpression.org>
------------------------------
Date: Thu, 14 Aug 1997 12:47:29 -0800
From: "--Todd Lappin-->" <telstar@wired.com>
Subject: File 3--Wired News on Child Porn Act Decision
Source - fight-censorship@vorlon.mit.edu
http://www.wired.com/news/news/politics/story/6012.html
Activists Down on Child Porn Act Decision
by Ashley Craddock
5:06am 13.Aug.97.PDT
Free-speech activists said they
would appeal a San Francisco judge's decision to uphold the
1996 Child Pornography Protection Act, a ruling they
called ridiculous. The court on Tuesday rejected arguments
that a new federal definition of pornography created an
overbroad and unconstitutional prior restraint on content.
"The court totally ignored the fact that this law creates a
whole new unprotected category of speech - non-obscene
depictions of what only appear to be minors engaged in
sexual activity," said William Bennett Turner, a First
Amendment specialist in San Francisco who, in conjunction
with the American Civil Liberties Union, filed a brief
arguing that the Child Pornography Protection Act was
unconstitutionally vague. "It galls me that the court ruled
that the law is content-neutral."
"Anyone who's concerned about the First Amendment should
find this ruling scary," said Louis Sirkin, who originally
filed suit on behalf of the Free Speech Coalition, a group of
more than 600 producers and distributors of
adult-oriented materials. Sirkin was denied the chance to
argue his case in court when US District Court Judge
Samuel Conti last week canceled a hearing on the matter in
favor of perusing both sides' briefs in the comfort of his
chambers. He will appeal the decision today.
In his original brief, Sirkin argued that the 1996 law,
which bans visual depictions that are or appear to be "of a
minor engaged in sexually explicit conduct," is so broad that
it could criminalize the manufacture or possession of any
movie - think Lolita or Romeo and Juliet - in which a
body double is used to depict a minor involved in sexual
activity.
In Tuesday's decision, however, Conti rejected that
argument outright, finding that the child-porn act merely
attempts to limit the consequences of pseudo-child-smut.
"Even if no children are involved in the production of
sexually explicit materials, the devastating ... effect that
such materials have on society and the well-being of
children merits the regulation of such images," Conti wrote.
While well-intentioned, that judgment, says Ann Brick, a
staff attorney with the Northern California ACLU, is
completely inconsistent with the Supreme Court's definition
of content-based regulation. "Over and over again, the court
has ruled that banning speech because of its potential
secondary affect on listeners is an unconstitutional
restraint on content."
"I mean, if your argument is, 'It's illegal because it might
make someone want to go out and have sex with kids,' where
do you draw the line? What about books that describe sex
with kids? What about movies that depict adults having
sex? What about sexy drawings and paintings?"
According to a brief filed by government attorneys, part of
the Child Pornography Protection Act's explicit aim was, in
fact, to move that line forward and address the digital-age
problem of technologically manufactured juvi porn.
But that argument is ridiculous, contend Turner and Brick.
"There is a real difference between touching children
sexually and touching computer keys to create images: The
former is wrong in itself and within the power of
government to prohibit; but there is nothing inherently
wrongful about using either a computer or adults to create
sexually explicit images," argued the ACLU brief.
Copyright 1993-97 Wired Ventures Inc. and affiliated
companies.
All rights reserved.
------------------------------
Date: Tue, 29 Jul 1997 10:03:46 -0700 (PDT)
From: Declan McCullagh <declan@well.com>
Subject: File 4--Boylovers, NAMBLA, and Net-vigilantes, from The Netly News
((MODERATORS' NOTE: Some of the best Net-related discussions and
information come from Declan McCullah's fight-censorship
discussion group. In this issue, we include a few items from his
list related to "net porn."))
Source - fight-censorship@vorlon.mit.edu
-----
http://pathfinder.com/netly/opinion/0,1042,1222,00.html
The Netly News (http://netlynews.com/)
July 29, 1997
This Boy-Lover's Life
by Declan McCullagh (declan@well.com)
Anne Cox is nothing if not determined. For months the
Net-vigilante has been unwavering in her crusade against pedophiles,
undaunted by insults, threats and even the "horrible things" done to
pictures of her as a baby that she had digitized and placed online.
She fought back with just about every possible tactic: argument,
public humiliation and sometimes-spurious threats of legal action.
Now, the war is escalating.
It started in May, after Cox launched an assault on "boy-lover"
web sites in an attempt to force them offline. But she and her allies
ran into a serious obstacle: the sites aren't illegal. They're filled
not with child pornography -- which is banned by federal law -- but,
instead, photos of boys in swimsuits. "They shouldn't be doing these
things with the children's pictures," Cox says.
[...]
Some argue that Cox and her allies have gone too far. Besides
boy-pix sites, this team of Net-vigilantes has attacked a group of gay
teens organizing "to fight against" discrimination. They've tried to
take down a consensual spanking page for gay adults, and even an
archive of sexually-explicit stories that specifically rejects tales
about pedophilia. Then there's the murky Children's Protection and
Advocacy Coalition, which Cox claims to run -- yet she refuses to name
its member organizations.
------------------------------
Date: Thu, 7 May 1997 22:51:01 CST
From: CuD Moderators <cudigest@sun.soci.niu.edu>
Subject: File 5--Cu Digest Header Info (unchanged since 7 May, 1997)
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End of Computer Underground Digest #9.67
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