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House Passes Virtual Child Pornography Law

11 Jul, 2002 By: Kurt Indvik

The recent passage of the Child Obscenity and Pornography Prevention Act of 2002 (COPPA) by the House of Representatives (HR 4623) has reignited the constitutional controversy that flared when the Supreme Court in April of this year found portions of a similar law unconstitutional.

The new bill, which focuses more acutely on computer-generated images, might still fail under judicial review, according to Sean Bersell, VP of public affairs for the Video Software Dealers Association (VSDA).

“We have looked at the house bill and we think that it would still fail the Supreme Court test under the Free Speech Coalition case,” Bersell said, referring to the April decision.

The bill passed 413-8 in the house and has strong support from the Department of Justice and Attorney General John Ashcroft, arguing that the restriction of computer-generated images of child pornography are key in fighting the exploitation of children.

The new act is intended to replace, and supposedly make more constitutionally-defensible, the 1996 law known as the Child Pornography Prevention Act, which the justices ruled against in a decision earlier this year (VSM, April 21–27, 2002). At that time, the court found that the law was too broad in its language and violated First Amendment rights. The law attempts to ban not only virtual, animated and computer-altered images, but also would be far-reaching enough in its language to be applied to movies in which it appears as if minors were engaged in sexual acts, even if the actors were over the age of 18.

“That decision, to us, says that you can't outlaw child pornography unless either children are used or exploited in creation of the work, or it is judged to be obscene,” Bersell said.The new law has reportedly been carefully recrafted from the CPPA, but narrowed in its approach in that it refers to any “ … computer image or computer-generated image that is, or appears virtually indistinguishable from, that of a minor engaging in sexually explicit conduct … ”

But that would still fail to pass muster with the courts, said Bersell, who met with fellow members of the Media Coalition, a group of media companies and organizations that work together on free speech and First Amendment issues. Bersell said the group also is concerned that the bill contains an “affirmative defense” provision that essentially shifts the burden to defendants to prove they have not broken any laws prosecuted under the act. Bersell said courts have found these provisions “very suspect” in the past.

A similar bill has been introduced into the Senate, and is called The Prosecutorial Remedies and Tools Against Exploitation of Children Today Act (PROTECT) (S 2520). Bersell calls this bill “fixable” and less problematic, since its overall intention is to use the law as a way of helping prosecutors go after real child pornographers who might use computer-generated images as a way to lure real children into participating in pornography.

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