Child pornography: real and pseudo

As I assume everyone knows, the possession, distribution and/or creation of child pornography is a crime in the U.S. and in many other countries, including the United Kingdom.

I want to talk generally about the criminalization of child pornography, why we have it, what it encompasses, what it does not encompass, etc., but I want to begin with a recent case from the UK.

Stafford Sven Tudor-Miles of Easton, Middlesbrough in the UK, recently pled guilty to (a) five counts of attempting to make indecent pseudo-photographs of children and (b) one count of possessing indecent pseudo-photographs of children.

What did he really do? What he did, and please don’t ask me why, was to scan “photographs of adult porn stars into his computer and used sophisticated digital equipment to reduce the size of their breasts.” I assume the photos had the porn stars engaged in some of their professional activity.

Tudor-Miles’ attorney argued that no crime had been committed because the pictures were really those of adult women. That defense apparently did not work. According to the story in the TimesOnline, under the UK’s “Protection of Children Act 1978, as amended by the Criminal Justice and Public Order Act 1994, a pseudophotograph of a child is defined as an image, whether made by computer graphics or otherwise, which appears to be that of a child.” And UK law treats such an image “as showing a child even if some of the physical characteristics are those of an adult.”

Let’s talk for a minute about how this case would be handled under US law, and then we’ll analyze the result.

Our First Amendment protects speech, except in certain, very limited instances. The Supreme Court recognized, in New York v. Ferber, 458 U.S. 761 (1978), that child pornography is speech within the compass of the First Amendment, but held it can be criminalized for two reasons: One is that children are harmed – physically and emotionally – in the creation of child pornography. The other is that the child pornography is a permanent record of the “harms” inflicted on the children, and this record can remain in essentially permanent circulation. The Supreme Court found that the infliction of these two “harms” overrode First Amendment considerations.

(I often analogize this to the concept of a snuff film. If anyone were idiotic enough to make a First Amendment argument to support the creation and possession of a snuff film, the argument would fail because of the “harm” – the death of a human being – involved in creating the film.)

The Ferber Court was talking about “real” child pornography – child pornography involving the use of “real” children. Computer technology is making it possible, at some level, to create “virtual” child pornography – either by morphing existing images of adults, as Tudor-Miles did, or by using CGI to create the images from scratch. Now, computer technology still is far from the point at which a CGI image is indistinguishable from that of a real person, or a real child, but you can create a good simulacrum.

In 2002, in Ashcroft v. Free Speech Coalition, 535 U.S. 234, the Supreme Court struck down the federal statute that criminalized virtual child pornography. More specifically, the statute made it a crime to create, possess and/or distribute any image “that is, or appears to be, of a child engaging in sexually explicit conduct.” Since “real” children are not involved in the creation of virtual child pornography, the government could not rely on Ferber.

Instead, it said there are two other reasons why virtual child pornography should not be protected by the First Amendment (and can therefore be criminalized): One is that it “whets the appetites” of pedophiles. The other is that pedophiles use child pornography to seduce children into sexual activity. The Supreme Court rejected both.

As to the “whets the appetite” argument, it found this claim was too broad. As the Court noted, the “mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.” If that were true, we’d have no Grand Theft Auto, no slasher flicks, no “caper” movies, none of that.

As to the premise that pedophiles use child pornography to seduce children, the Court found that equally unpersuasive. It noted that other things – “cartoons, video games, and candy” – would be at least as effective for this purpose, but we do not ban them. The Court concluded that the government cannot “ban speech fit for adults simply because it may fall into the hands of children.”

Congress quickly adopted another statute, which pretty much does the same thing as the one the Court struck down, but it has not, to my knowledge, been challenged as yet. I think the new statute is unconstitutional for the same reasons the first one was.

Which brings me back to the issue I wanted to raise: Is there any reason to criminalize virtual child pornography, i.e., pornography that appears to involve children engaging in sexual activity but really does not?

Child pornography is by definition not obscene. We have other statutes (which are also, I think, constitutionally problematic) that ban obscene material. Child pornography is material that is not obscene, that would be mere pornography if it involved adults. It has been criminalized for the reasons given in Ferber.

Why, if at all, does it make sense to prosecute and incarcerate Tudor-Miles for making fake child pornography? Why, if at all, would it make sense to prosecute someone who used next-generation computer technology to create what seems to be child pornography but is really just the depiction of activity by computer-generated images?

There’s a case from Canada, that went all the way to the Canadian Supreme Court, which involved “textual child pornography.” Canadian police seized a CD from the home office of a fellow; on it were stories he had written that featured children engaged in sexual activities (with, I believe, adults). He was prosecuted for possessing the stories, ones he had written and that he had not distributed. The Canadian Supreme Court held, basically, that the charge was improper, because nothing “real” was involved – the stories were, as the court said, mere fantasies, the products of his imagination.

So, is virtual child pornography mere fantasy and, as such, something the law should not condem? Or is there a good reason to go after people like Tudor-Miles?