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UPDATE: Supreme Court Eases Limits On Faux Child Porn

18 Apr, 2002 By: Jessica Wolf


In what video industry leaders call a ringing endorsement of the First Amendment, the Supreme Court last week struck down two sections of the 1996 Child Pornography Prevention Act (CPPA) in a 6-3 decision.
“We were pleasantly surprised by the breadth of the court's dec- ision in this case,” said VSDA VP of Public Affairs Sean Bersell. “It is a definitive, ringing endorsement of the First Amendment and it is an absolute, wholesale victory for the definition of free speech, the Free Speech Coalition, the VSDA and all those who weighed in with the court arguing that this law was unconstitutional.”
The language of the CPAA was too broad, and the law violated First Amendment rights, the court found. Under the CPPA, the definition of child pornography included not only virtual, animated or computer-altered images, but also spread to include many other intellectual properties that do not meet the requirements for the so-called “Miller” test — the accepted legal test for obscenity — according to the ruling.
The CPPA was far-reaching enough to include movies that made it look like a child was engaged in a sexual act — even if the actors were over the age of 18 and there was no actual sexual activity going on. This would effectively criminalize a large number of legitimate Hollywood movies, the court found.
In writing the decision, Justice Anthony Kennedy cited such films as American Beauty, Traffic and Romeo + Juliet,/I> that could ostensibly have come under the CPPA, and thus might have resulted in a charge of child pornography distribution for studios or home video retailers, subject to a mandatory minimum sentence of 15 years. For charges of possession only, the mandatory minimum sentence under the law was five years in prison for a first offense.
Justice Kennedy's decision cited the chilling effect such stringent penalties could have. Video retailers or Hollywood producers could begin self-censoring and not buy or make certain products because of the law, which would infringe upon their First Amendment right to free speech and free expression of ideas.
Last year, the VSDA, along with other publications and media rights organizations, filed a “friend of the court” (amicus) brief requesting that the high court overturn the unconstitutional portion of the law that would spread to these mainstream movies that depict no real sexual act.
“It's never easy to argue against a law that claims to be aimed at something as vile as child pornography,” said VSDA president Bo Andersen in an official statement regarding the Supreme Court's decision. “This discomfort is one reason we have trade associations —-to argue in favor of unpopular but protected speech.”
The Free Speech Coalition, advocates for the adult entertainment industry, led the charge against the law and won an appeal in California's ninth circuit court in 1999.The government appealed that decision, which resulted in last week's ruling.
“This decision is great news,” said coalition board chairman Jeffrey Douglas. “Not only did we win, but the court's language could not have been better; they addressed all of the issues.”
The court also overturned the portion of the law that effectively shifted the burden of defense onto anyone who may have been prosecuted under the CPPA.
The affirmative defense issue paved a way for producers of content to be acquitted of child pornography charges by proving that any actors involved in a movie were over the age of 18.

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