- The Washington Times - Wednesday, April 17, 2002

The government went too far in trying to ban computer simulations and other fool-the-eye depictions of teen-agers or children having sex, the Supreme Court ruled yesterday.
Youthful sexuality is an old theme in art, from Shakespeare to Academy Award-winning movies, the court said in striking down two provisions of a 1996 child-pornography law on free-speech grounds.
The provisions would call into question legitimate educational, scientific or artistic depictions of youthful sex, Justice Anthony M. Kennedy wrote for a 6-3 majority.
Also in the majority were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, Stephen G. Breyer and Clarence Thomas. Dissenting were Chief Justice William H. Rehnquist, Justice Antonin Scalia and Justice Sandra Day O'Connor.
"The statute proscribes the visual depiction of an idea that of teen-agers engaging in sexual activity that is a fact of modern society and has been a theme in art and literature throughout the ages," Justice Kennedy wrote for four other justices.
Justice Thomas, in a separate concurring opinion, said the court's ruling appropriately struck down a ban that was too sweeping but left a window for future regulation of some kinds of virtual child pornography.
Justice O'Connor agreed with the part of the ruling that struck down the ban on images of adults who looked like children. But in dissent, she said she would uphold the ban on virtual child pornography created wholly on a computer.
Chief Justice Rehnquist and Justice Scalia argued in their dissent that the law need not be read as banning the kind of artistic material that concerned Justice Kennedy.
"The aim of ensuring the enforceability of our nation's child pornography laws is a compelling one," Chief Justice Rehnquist wrote for the pair. "The [law] is targeted to this aim by extending the definition of child pornography to reach computer-generated images that are virtually indistinguishable from real children engaged in sexually explicit conduct."
The court invalidated two provisions of the Child Pornography Prevention Act as overly broad and unconstitutional. Free-speech advo- cates and pornographers have challenged the law's ban on material that "appears to be" a child in a sexually explicit situation or that is advertised to convey the impression that someone younger than 18 is involved.
Attorney General John Ashcroft said he was "disappointed" the court chose to make the prosecution of child pornography "more difficult" but was "undeterred" in his resolve "to do all that I can to protect our children from the pornographers and other predators who would prey on their innocence."
Mr. Ashcroft said he had directed the Justice Department's criminal division to work with U.S. attorneys nationwide to ensure that the ruling affected as few of the department's pending child-pornography cases as possible.
"To avoid the dismissal of cases brought under the two provisions that the Supreme Court has struck, we will amend where possible and pursue general obscenity charges against those who have victimized children by producing or procuring child pornography," he said.
Mr. Ashcroft also said he was eager to work with Congress to revise the law.
One section of the law was not challenged and remained in force. It bans prurient computer alteration of innocent images of children, such as the grafting of a child's school picture onto a naked body.
Conservatives were outraged by yesterday's decision.
"That the Supreme Court of the United States can entertain the notion that virtual images of children being sexually violated has 'value' that needs protection is an abomination," said Jan LaRue, legal-studies director at the Family Research Council.
"The high court sided with pedophiles over children," said Rep. Mark Foley, Florida Republican and co-chairman of a congressional caucus on missing and exploited children. "This decision has set back years of work on behalf of the most innocent of Americans."
Congress passed the law as a bulwark against emerging computer technology that allowed pornographers to simulate child sex without using actual children.
The law was intended primarily to stop pornography produced through computer wizardry not available when the court placed child pornography outside First Amendment protection in 1982.
But moviemakers and other artists complained that the law also swept up scenes such as those in works Justice Kennedy named, where youthful sex would be pantomimed or filmed using adults disguised as children.
"Teen-age sexual activity and the sexual abuse of children have inspired countless literary works. William Shakespeare created the most famous pair of teen-age lovers, one of whom is just 13," Justice Kennedy wrote, referring to "Romeo and Juliet."
"In the drama, Shakespeare portrays the relationship as something splendid and innocent," yet modern staging of the play could run afoul of the anti-child-pornography law, he suggested.
The Academy Award-winning dramas "Traffic" and "American Beauty" also would be suspect, Justice Kennedy said.
Jerry Seper contributed to this report.

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