WASHINGTON, Oct. 30 (UPI) -- A top Bush administration lawyer told the Supreme Court of the United States Tuesday that a 1996 law banning computer-generated sexual images of minors is constitutional, regardless of whether minors were actually involved in the production of such material.
The law also bans simulations of sexual activity by minors or depictions of sexual activity that are promoted as acts by minors -- again, regardless of whether minors were actually involved in the production.
A lower court has struck the law down.
The Supreme Court first carved out a free speech exemption for child pornography in 1982's New York vs. Ferber. But the court majority warned that its exemption applied only to live performances or images of live performances -- in effect, protecting printed material of whatever stripe that described sex by minors.
Since then, Congress has passed a number of laws banning the production or possession of images that depict minors, those under 18, in sexual situations.
The latest such law, the Child Pornography Prevention Act of 1996, contains the provisions now at issue before the high court.
At the time, Congress was particularly concerned that some pornographers were taking digital images of children and manipulating them into other digital images to make it appear the children were engaged in sex -- much like a computer graphics artist taking the face of a celebrity and putting it on the nude body of another person and claiming to have "nude photos" of the celebrity.
In 1997, a group of "adult" businesses, the Free Speech Coalition, challenged the new law in federal court in Los Angles.
A federal judge upheld the law, but an appeals court panel ruled 2-1 in 1999 that it was an unconstitutional restriction of free expression. The panel majority said the law erroneously did not rely on preventing harm to children -- since no children were engaged in sexual acts in the production of the material.
The Clinton administration then asked the Supreme Court for review.
Tuesday, one of the Bush administration's top lawyers told the Supreme Court the new law was trying to "keep pace with technological developments."
Deputy Solicitor General Paul Clement said the law's provisions are constitutional because "they protect real children from real abuse" by preventing the seduction of children through the use of such images, and by allowing the government more freedom to prosecute traditional child pornography.
Without the new provisions, Clement told the justices, prosecutors would have a hard time proving that actual depictions of child sex were not fictional, computer-generated images.
Several of the justices expressed reservations about the law when it came to films and simulations of sex by minors.
Justice Stephen Breyer said, "Suppose I buy (the movies) 'Traffic,' 'Lolita' and 'Titanic,' " each of which depict simulations of sex with minors.
Clement pointed out that the law gives movie producers and others an "affirmative defense" -- witnesses and documents can show the performers were 18 or older, even if the story line makes them minors.
Clement conceded that there is no such "affirmative defense" for possession of such movies, but argued that no prosecutor would be able to prove intent when it came to major motion pictures, a crucial element of any possession violation.
Justice Sandra Day O'Connor questioned Clement's approach, saying "the courts rely heavily on the fact that if you use actual children (in the production of sexual images), they are actually harmed."
And Justice Ruth Bader Ginsburg expressed worry about a "slippery slope" for the First Amendment, and said it was "a big step away from the effects on an actual child to the effects on a viewer."
Clement countered that the law was not sliding down a "slippery slope." When computer-generated images depict "material that is virtually indistinguishable from material outside the First Amendment, then the material is outside the First Amendment."
Speaking for the Free Speech Coalition, Cincinnati attorney H. Louis Sirkin told the justices that if they adopt Clement's argument there would be three negative effects on the First Amendment.
First, "In the name of protecting children, all sexual messages, regardless of artistic or scientific value, would be taken away" from them.
(When Justice Antonin Scalia told Sirkin he had never heard of any depiction of sex involving minors that had artistic value, Justice John Paul Stevens cited "Romeo and Juliet."
"You must have seen a different version than I did," Scalia snapped back.)
Second, Clement's argument would prohibit the performance of adults who appear to be younger than 18, Sirkin said.
Third, Clement's argument would allow the government to ban free expression of the many because of the abuses of the few, Sirkin contended.
The 1996 law creates a "chilling effect," Sirkin said. If an actor or play runs "close to the line, don't risk it. That's censorship."
The Supreme Court should rule in a month or two.
(No. 00-795, Ashcroft et al vs. The Free Speech Coalition et al)
