Content-Type: text/html


Virtual Children

Running Head: VIRTUAL CHILDREN









Slip Sliding Away:
Virtual Children and the First Amendment
Sharron M. Hope
Purdue University

June 2002



Virtual Children and the First Amendment


Virtual Children
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Virtual Children
					U.S. Constitution, Amendment I
The First Amendment is one of the bedrock values of the American people, yet it is regularly abridged in favor of more highly held values, such as protecting people from imminent danger. The two important values of free speech and protecting children have come into direct conflict in the case of Ashcroft v. Free Speech Coalition (2002). One of the issues in this case is the use of computer technology in creating child pornography. 
The Internet has been embraced as a gateway for information, education, and entertainment. One of its most celebrated features is the ability to create communities of people linked through common interests rather than geography. One of the largest communities online is comprised of those interested in child pornography. The World Wide Web has made it much easier for pedophiles to seek out and find one another, then trade pornographic images (Nordland and Bartholet, 2001). 
	It is difficult to calculate the extent of child pornography on the Internet, but the problem is a global one. In 1995, an estimated one million such images existed in cyberspace at any given time (Lee, 1999). Just three years later, police broke up an Internet child pornography ring called Wonderland, whose members lived on three continents. As an entrance fee to this "invitation only" Internet relay chat group, the two hundred members of Wonderland were each required to provide ten thousand images of child pornography. In Britain alone, authorities discovered files with over 750,000 images featuring 1,263 different victims, all under the age of puberty. (Nordland and Bartholet, 2001).
	While United States law enforcement agencies cooperate in international investigations, child pornography is recognized as a domestic concern as well. For example, last September Ohio police announced the discovery of over 300,000 images at Marietta College, calling it one of the world's largest computerized collections of child pornography. According to Kathleen Barch, Ohio's deputy director of Criminal Identification and Investigations, that department spends one-third of its time investigating child pornography cases (Karp, 2001).
Protecting children from harm is the duty of any functioning society. This includes protection from harm caused by the production and distribution of child pornography - images of those under age 18 engaged in sexual conduct. Thus possession of child pornography is a crime in the United States (18 U.S.C. 2252A.). However, advances in computer technology now enable the creation of pornography without using children (S. Report 104-358). Virtual children - computer-generated or enhanced images - can now replace actual children in the production of pornographic material. This raises some important First Amendment questions, including whether pornographic images created without children should be legally classified as child pornography, and whether computer-generated images should be considered "symbolic speech" and thus receive First Amendment protection. 
The purpose of this paper is to answer those questions within the context of existing case law, and determine the constitutionality of the 1996 Child Pornography Protection Act (CPPA), which criminalizes images that depict minors engaged in sexual activity. My study will include analysis of U.S. District, Appeals and Supreme Court decisions; legal and communication journal articles; news articles and books on the subject of the First Amendment and child pornography; and documents available from electronic sources.
Theory
In my analysis of court documents, I will apply the two-level theory for testing freedom of speech that is used by state and federal judges. Before this theory can be applied, however, the statute must meet two general tests of due process that are required of all laws, per the Fourteenth Amendment to the U.S. Constitution. These due process tests are "vagueness" and "overbreadth." 
The Supreme Court defined vagueness in the case of Connally v. General Construction Co. (1926), stating a statute "which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application" is unconstitutional. A law is overbroad if it is worded "so as to cover expression or conduct which is protected by the Constitution in order to 'get at' expression or conduct which is not otherwise protected". Overbreadth has been described as "burning down the barn in order to get rid of the mice." Once a statute passes these two tests, the two-level theory of free speech can be applied (Tedford, 1997, p. 415).
The first step in this theory is to classify the expression under consideration as "speech" or "nonspeech." In this test, the distinction is not made between real and symbolic speech, but rather between "worthwhile" (Level One) and "worthless" (Level Two) expressions. Level One expressions are considered for First Amendment protection while Level Two expressions are not. 
Level One speech is defined as "expression that contains ideas and that has social value." If needed, further tests of Level One speech can be applied when an exception to a rule becomes evident. The case of Chaplinsky v. State of New Hampshire (1942) set the precedent for unprotected speech referred to as Level Two speech. This includes expression that is not vital to the functioning of democracy, is not essential to the exposition of ideas, and is of little value as a step to truth. No further testing is necessary (Tedford, 1997, p.413-416).
Significance
The Child Pornography Protection Act pits the rights of adults to free speech against the rights of children to be safe. As mentioned earlier, both are strongly-held values of the American people, but in this case they seem to be mutually exclusive. Erosion of First Amendment rights could threaten other expression privileges, according to the American Civil Liberties Union. One of their publications quotes the Supreme Court as calling freedom of speech "'the matrix, the indispensable condition of nearly every other form of freedom.' Without it, other fundamental rights, like the right to vote, would wither and die" (ACLU Briefing Paper No. 10). There are those, not affiliated with the ACLU, who also believe the CPPA represents a significant threat to adult free expression, placing the country on a slippery slope toward government censorship. 
Those in favor of the CPPA are willing to accept government action and reduced First Amendment privileges in order to address their concerns about child pornography and the real and potential harm to children. Choosing which of these is the greater good will reveal much about the direction of American society. Let us begin our investigation with a review of the law regarding the First Amendment, symbolic speech and child pornography.  
Legislative and Legal History
Since Tinker v. Des Moines Independent Community School District in 1969, the U.S. Supreme Court has consistently held that First Amendment protection is not limited to "pure speech," but also includes symbolic speech - those nonverbal expressions whose purpose is to communicate ideas. In Tinker v. Des Moines, the issue was students wearing black armbands to protest the Vietnam War. Other examples of protected symbolic speech include works of art, T-shirt slogans, political buttons, music lyrics and theatrical performances. Since the "formulation of a comprehensive legal theory in this area remains a challenge to both legal and communications scholars" (Tedford, 1997, p. 278), adding computer-generated images to this list of symbolic speech would be reasonable.
	In regards to child pornography, the Supreme Court has consistently ruled it beyond the protection of the First Amendment. The beginning of this philosophy dates back to the 1942 case of Chaplinksky v. State of New Hampshire, in which the Court ruled that not all speech is entitled to the same protection under the Constitution: 
It is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem_It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
Years later the Court reaffirmed this judgment in Roth v. United States (1957), by 
declaring obscenity "utterly without redeeming social importance" and thus "not within the area of constitutionally protected speech." The Court ruled that states could effectively regulate materials deemed obscene. Years later, in Miller v. California (1973), the Court established guidelines to clarify what was within the scope of regulation. These guidelines consider the opinion of "the average person, applying contemporary community standards," in determining whether questionable materials "appeal to the prurient interest in sex, _portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value."
Recognizing that the government has a duty to protect its children, Congress passed the Protection of Children Against Sexual Exploitation Act of 1977. This Act criminalized using anyone under the age of sixteen to produce any visual depiction of sexually explicit conduct with knowledge that it was, or would be, transported in interstate or foreign commerce. Five years later, in New York v. Ferber (1982), the Supreme Court addressed the issue of child pornography directly, affirming the constitutionality of a state statute that criminalized the distribution of child pornography using actual children. In this unanimous decision, the justices deemed child pornography a new category of speech that was not entitled to First Amendment protection. In its Ferber decision the Court noted "the States are entitled to greater leeway in the regulation of pornographic depictions of children" and gave five reasons why this is so.
1)	The state has a compelling interest in protecting the physical and psychological health of minors and in preventing the sexual exploitation and abuse of children.
2)	Distribution of sexually explicit materials results in the sexual abuse of children. Not only is the child abused during the acts themselves, the materials are a permanent record of the event and their circulation increases the psychological harm to the child. One way to stop distribution is to impose significant penalties on those involved in its sale and promotion.  
3)	There is an economic motive in creating child porn through the advertising and sale of such materials, which encourages production of such materials. 
4)	The social value of allowing children to be involved in live performances that
are recorded for eventual sale is "exceedingly modest, if not de minimis."
5)	Classifying child pornography as a category of material outside of First       
Amendment protection is not incompatible with earlier Supreme Court decisions. 
	The Court also required that child pornography statutes must apply only to visual works of children below a definite age, must state clearly what content is prohibited, and must provide proof that the accused believed those persons appearing in the pornography were minors (New York v. Ferber, 1982).
	The Child Protection Act of 1977 resulted in only one conviction (Attorney General's Report, 1986). To address the act's limited usefulness and the Supreme Court's Ferber decision, in 1984 Congress passed the Child Protection Act, which increased the age of protected children from sixteen to eighteen and eliminated the requirement that the material be produced or distributed for commerce. It also eliminated the Miller requirement for obscenity in evaluating child pornography, placing child porn in a separate category that can be banned regardless of whether or not it is obscene. 
	Congress amended the law in 1986 by passing the Child Sexual Abuse and Pornography Act which banned the production and use of advertisements for child pornography. Another amendment made offenders liable for personal injuries to children resulting from the production of sexually explicit materials (Child Abuse Victims' Rights Act of 1986).
The Child Protection and Obscenity Enforcement Act of 1988 was passed in response to the beginnings of the Internet and its facilitation of the child pornography business. This act makes it illegal to use a computer to transport, distribute, or receive child pornography and requires certain record keeping and disclosure procedures for producers of certain sexually explicit materials, in order to document that no minors were used in creating the materials. 
In Osborne v. Ohio (1990), the Supreme Court upheld an Ohio state law that criminalized the possession and viewing of child pornography, affirming that child pornography should receive less First Amendment protection than obscenity. As noted in one analysis, the Court "went one step beyond Ferber, justifying a ban on production and distribution not solely based on the harm to the actual children exploited in the creation of materials, but also in the harm inflicted on the victims by pedophiles who use the materials to seduce them" (Wasserman, 1998). In explaining its decision, the Court said the Ohio law serves the state's compelling interest of protecting children in three different ways. First, by providing penalties for possession and viewing child pornography, the law would reduce the demand for such materials, and thus the need for supply. Secondly, with the ban on such materials, the law encourages the destruction of existing pornography, which permanently records the victim's abuse and thus may haunt the child in the future. And thirdly, the destruction of child porn would reduce the probability that pedophiles would use the materials to seduce additional young people (Osborne v. Ohio, 1990). This case concerned only visual depictions of real children. 
In response to Osborne v. Ohio, Congress passed the Child Protection Restoration and Penalties Enhancement Act of 1990. This act criminalized possession of three or more child pornography materials. A scienter requirement was added in United States v. X-Citement Video (1994), in which the Supreme Court said the government needed to prove that a defendant knew, or believed, that a performer in a pornographic work was a real minor. In 1994, Congress criminalized the production or importation of sexually explicit depiction of minors (Pub.L. No. 103-322, 16001, 108 Stat. 2036). Lastly, Congress passed the Child Pornography Protection Act of 1996 (CPPA), which made it illegal to use computer images to create visual depictions of minors or create the impression that children are involved in sexually explicit activity.
Technology and Pornography
	Technology has improved to the point where individuals can use their home computers to generate virtual children or to "morph" (electronically manipulate) images of existing children. To confuse the issue of proper age identification, images of adults can be altered to appear as though they were minor children. "Faces and bodies can be easily interchanged" using relatively inexpensive morphing software, according to Jeffrey Dupilka, Deputy Chief Postal Inspector for Criminal Investigations (S.Hrg. 104-870). This means that children's faces can be placed on the bodies of other children, or on the bodies of youthful looking adults, or on computer-generated bodies. The result is that children appear to be engaging in sexual activity when they never were. In testimony before a Senate Judiciary Committee Hearing (S. Hrg. 104-870), Bruce Taylor of the National Law Center for Children and Families explained how morphing allows the pornographer to create such images. First, the pornographer scans the photographic image of the head of a child into a computer. This image can be obtained from magazines and store catalogues where young children model a variety of benign products. A surreptitiously-taken photograph of a child at play in a park or walking to the school bus could also be used. The pornographer then scans an indecent image from an adult magazine, or an existing indecent image with children, into the computer. The graphics software of the computer allows a pornographer to combine the two images placing the innocent image of the child's face and head on to the pornographic picture of the adult body, or a different child's. With the adult image, the pornographer can use the software to remove pubic hair, shrink the size of the genitals, breasts, and/or other body parts, adjust skin tones, and otherwise manipulate the images to create a very convincing piece of child pornography. Someone who is knowledgeable can create child pornography with nothing more than a good graphics program and his imagination. The image generated by a computer can be so "perfect," determining whether the image was created from a photograph of a real child or from the computer user's imagination becomes impossible (S. Hrg. 104-870, 1996). 
In the first case mentioning virtual reality images, United States v. Kimbrough (1995), the defendant offered evidence that computer programs capable of changing the image of an adult into that of a child were readily available. From that evidence, the defense argued that the government had the burden of proving that each item of alleged child pornography did feature a real minor rather than an adult altered to appear as if a minor. The difficulties this would provide for law enforcement officials in distinguishing real from computer-generated child pornography are obvious and were one consideration in the passage of the CPPA (S. Hrg. 104-870, 1996). 
The Child Pornography Prevention Act of 1996 was a response to such use of home computer technology to create "visual depictions of children engaging in sexually explicit conduct that are virtually indistinguishable from unretouched photographic images of actual children engaging in sexually explicit conduct" (Senate Report 104-358, 1996). Lawmakers did not want persons with child pornography made with real children to escape prosecution because the images could not be separated from those of virtual children. The law defines child pornography as:
_any visual depiction including photograph, film, video, picture or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where - (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct; (C) such visual depiction has been created, adapted, or modified to appear that such an identifiable minor is engaging in sexually explicit conduct; or (D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct_.(18 U.S.C.  2256).
The law goes on to define sexually explicit conduct as "actual or simulated (A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (B) bestiality; (C) masturbation; (D) sadistic or masochistic abuse; or (E) lascivious exhibition of the genitals or pubic area of any person" 
In addition to banning computer-generated images that are indistinguishable from those of real children, the CPPA also had other goals. They included protecting the privacy of real children whose innocent images may be used to create sexually explicit images; reducing the amount of child porn available to pedophiles and child molesters; and depriving child abusers of a "criminal tool" used to seduce and sexually exploit children. Following expert testimony, Congress determined that computer-generated child pornography posed the same threat to the well-being of children as the more traditionally-produced pornography (S. Rep. 104-358). Thus the CPPA expands the definition of child pornography in order to prevent the effects that such computer-created, virtual children might have on real people.
	How can real children be harmed by virtual children having sex? According to Shirley O'Brien in her book Child Pornography (1992), "perpetuating the sexual victimization of children is the most insidious purpose of child pornography" (p. 90). Pedophiles and child molesters use such material to whet their own sexual appetites and to seduce their victims (S. Rep. 104-358).[1] 
Pornography is used to educate a potential victim about the sex act itself, to present sex as acceptable and desirable, to convince the child that other children engage in sexual activity and "have fun." This process is designed to lower the child's natural inhibitions and eventually persuade him to participate in sex acts, which can then be recorded and sold (O'Brien, 1992). In this way pornography produces more pornography. Whether the images are real or computer-generated doesn't matter to the child who is enticed into sexual activity or blackmailed into silence. The molester may not even be able to tell the difference between the real and virtual images, but that is unimportant. Thus "computer-generated images which appear to depict minors engaging in sexually explicit conduct are just as dangerous to the well-being of our children as material produced using actual children" (emphasis in original, S. Rep. 104-358).
	In evaluating the constitutionality of legislation that may infringe on free speech, the Supreme Court has said the "government may impose reasonable restrictions on the time, place, or manner of protected speech," provided the restrictions are unrelated to the content of the regulated speech, that they are focused tightly to address a significant government interest, and that they leave open ample alternative channels for communication (Ward v. Rock Against Racism, 1989). 
In New York v. Ferber (1982), the Supreme Court determined that child pornography is Level Two expression according to the two-level theory for testing freedom of speech, and thus falls outside the realm of protected speech. However, a law that regulates restricted speech may be so overly broad that it encroaches on protected expression, or so vague that a person would be unable to determine if their conduct was illegal or not, thus failing the first test of due process required of all laws. This was the decision of the District Court in Maine concerning the CPPA in U.S. v. Hilton (1998). Judge Gene Carter determined that the use of the term "visual depictions that appear to be of minors" in the CPPA was too subjective to enable the ordinary person to know with certainty what conduct is prohibited. Those words could refer to a significant amount of adult pornography featuring adults who appear youthful. "In light of the criminal penalties_ the Court concludes that expression involving such adults will be chilled by the subjective language of the statute. Thus the statute is unconstitutionally overbroad." (U.S. v. Hilton, 1998)
On appeal, this decision was overturned. The United States Court of Appeals for the First Circuit ruled that the government did have a compelling interest beyond preventing the direct abuse of actual children, thus the Child Pornography Prevention Act was not so overbroad as to breach the First Amendment, even in its prohibition of sexually explicit material involving a person who "appears to be" a minor (U.S. v. Hilton, 1999). The Appeals Court noted that the prohibition was intended to target only visual depictions that viewers are unable to distinguish from untouched photographs of real children engaging in sexually explicit acts. In U.S. v. Hilton (1999), the Court also determined that the CPPA is not unconstitutionally vague, in violation of due process; that the standard of whether a person engaged in sexually explicit conduct "appears to be a minor" is an objective one; and that scienter must be proved to obtain a conviction.
Meanwhile, on the other side of the country, the Free Speech Coalition challenged the CPPA in the Northern District Court of California, contending that provisions of the law "are vague, overbroad, and constitute impermissible content-specific regulations and prior restraints on free speech"(Free Speech Coalition v. Reno, 1997). The plaintiffs said the CPPA expands the law to include materials that do not include actual children and that logically have never been considered child pornography. They also argued that by prohibiting images that appear to be children, the CPPA criminalizes the production and sale of legitimate materials that include adults who look like children. Finally, the Free Speech Coalition contended that the language used in the CPPA is "overbroad and vague" and serves to criminalize certain forms of expression. 
	The district court ruled that the CPPA is a content-neutral regulation, passed to address the secondary effects of the child porn industry, namely the sexual exploitation of children and encouraging pedophilia and the molestation of children. Additionally, the lower court deemed that the legislation was not intended to regulate or outlaw the ideas themselves. The district court also ruled that the protection of children is a strong enough compelling reason for the government to intervene (Free Speech Coalition v. Reno, No. 97-0281 SC, 1997).
	The Ninth Circuit Court of Appeals disagreed, citing U.S. v. Hilton (1999) in which the First Circuit court determined that the CPPA was content-based because it:
expressly aims to curb a particular category of expression [child pornography] by singling out that type of expression based on its content and banning it. Blanket suppression of an entire type of speech is by its very nature a content-discriminating act. Furthermore, Congress has not kept secret that one of its motivating reasons for enacting the CPPA was to counter the primary effect child pornography has on those who view it. With such a division of opinions among the district and appeals courts, a review by the U.S. Supreme Court was inevitable.
Discussion
In Free Speech Coalition v. Reno (1999), the Ninth Circuit Court of Appeals noted that Congress has defined the problem of child pornography in terms of real children throughout its legislative history. However, the CPPA significantly changes that course, shifting from "defining child pornography in terms of the harm inflicted upon real children to a determination that child pornography was evil in and of itself, whether it involved real children or not."
The district court that initially heard Free Speech v. Reno (1997) accepted the Supreme Court's ruling in that States have a legitimate interest in preventing pedophiles from "using child pornography to seduce other children into sexual activity" Osborne v. Ohio (1990). According to the Northern California district court (Free Speech Coalition v. Reno, 1997) and the dissent from Ninth Circuit Appeals Court (Free Speech Coalition v. Reno, 2000), there is a justification or compelling governmental interest to protect children from the harmful secondary effects of images that don't involve real people. However, Osborne v. Ohio (1990) dealt only with depictions of real minors - and in all of its considerations, the Supreme Court emphasized the participation of the child. "Thus, the Supreme Court has limited this new category of unprotected speech, child pornography, to a visual depiction of an actual minor" (Geating, 1998).
Like the Supreme Court, Congress had defined the problem of child porn only in terms of real children as well. But with the language of the CPPA, Congress moves into new territory. Images that are, or can be, a complete work of fiction, imagined in the mind and expressed through a computer, are criminalized. The definition of child pornography used in the CPPA includes visual depictions that "appear" to be minors, or images that merely "convey" the notion that minors are involved in sexually explicit activities, whether or not they really are. "The constitutionality of this definition is not supported by existing case law" (Free Speech Coalition v. Reno, 1999). Specifically, the Supreme Court noted that in New York v. Ferber (1982), images or depictions of sexual activity "which do not involve live performance or photographic or other visual reproduction of live performances, retain First Amendment protection." Computer-generated images based on one's thoughts would fit within this definition and thus should receive First Amendment protection.
Also in New York v. Ferber (1982), the Court suggested alternatives to actual children if necessary for literary or scientific value in a work, including a person over the statutory age that appears to be younger or a "simulation outside the prohibition of the statute." Virtual children certainly fall within this definition as well. 
In Free Speech Coalition v. Reno (198 F.3d 1083, 1999), the Ninth Circuit Court ruled that the CPPA ban on virtual child pornography "makes no constitutional sense in light of Ferber's acknowledgement that adults who look like minors can be used in place of minors in sexually explicit 'art' or film depictions." This is exactly what was done in the 1997 movie production of Vladimir Nabokov's "Lolita," where a 19-year-old body double was used for a 15-year old actress in the nude shots. Still, American film distributors refused to release "Lolita" for play on the big screen in the U.S., fearful of CPPA violations. (The film is now available on cable and video) (Simon, 1999). A more recent example (2000) is the Academy-Award winning "Traffic," in which an underage character, played by an older actress, is portrayed as having sex with her drug dealer.  
If an adult who looks like a minor can be used, as the Supreme Court itself suggested, why not a virtual child who looks like a minor? It seems a rather classic syllogism that if images of child pornography are outlawed because of the harm caused to real children in creating and distributing the images, and there is no child involved in the creation of an image, then the image should not be classified as child pornography because there is no harm caused to a child in creating or distributing the material. Surely there is even less harm done to actual children by using a virtual child than by using an adult actor posing as a child, especially if that substitution is well publicized. Thus the CPPA attempts to outlaw images that fall clearly within the frame of First Amendment protection, failing the due process test of overbreadth. 
The secondary effects analysis disagrees that no harm comes to children from virtual images, because children can be exploited and abused through the use of these materials by pedophiles using the materials to seduce victims. But the fault in this analysis is that it "shifts the argument focus from whether the questioned speech or images are constitutionally protected to a focus on how the speech or images affects those who hear it or see it" (Free Speech Coalition v. Reno, 1999). The Ninth Circuit Court of Appeals observed that to "accept the secondary effects argument as the gauge against which the statute must be measured requires a remarkable shift in the First Amendment paradigm. Such a transformation, how speech impacts the listener or viewer, would turn First Amendment jurisprudence on its head" (Free Speech Coalition v. Reno, 1999). As noted by the Seventh Circuit Court of Appeals in American Booksellers Ass'n, Inc. v. Hudnut (1985), the effects of pornography depend on the mental intermediation of the viewer and that speech cannot be quashed based on possible consequences. In this case, the Court said the ability of sexually explicit materials in preserving systems of sexual oppression of women "simply demonstrated the power of pornography as speech_If the fact that speech plays a role in a process of conditioning were enough to permit governmental regulation, that would be the end of freedom of speech" (American Booksellers Ass'n, Inc. v. Hudnut, 1985). Further, 
by criminalizing all visual depictions that "appear to be" or "convey the impression" of child pornography, even where no child is ever used or harmed in its production, Congress has outlawed the type of depictions explicitly protected by the Supreme Court's interpretation of the First Amendment. Because the 1996 Act attempts to criminalize disavowed impulses of the mind, manifested in illicit creative acts, we determine that censorship through the enactment of criminal laws intended to control an evil idea cannot satisfy the constitutional requirements of the First Amendment (Free Speech Coalition v. Reno, 1999).	
In Stanley v. Georgia (1969), the Supreme Court held that private possession of obscenity cannot be prohibited because the government may not control the moral content of a person's thoughts: "If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what film he may watch." Today one might also include what computer files he may view. This is as true for a pedophile as it is for the general population. Viewing make-believe images for one's own enjoyment should not be a crime, just as creating those images for one's own use should not be a crime. Those who are adept at using computer animation software are no less engaged in self-expression than a writer, an artist or a sculptor. "Like art, virtual images are given life only by the imagination of their creators" (Simon, 1999) and are expressions of thoughts, which are beyond the control of the government. 
In considering the possible secondary effects of child pornography, it should be noted that legal adult pornography, as wells as toys and candy, are also used by pedophiles to seduce children and thus cause them harm. It is ridiculous to attempt to criminalize everything that can be used to entice children into sexual activity. It seems more appropriate to make the use of any type of pornography to seduce children a punishable offense, rather than punishing all possessors of virtual porn as potential child seducers. As the Ninth Circuit noted in its 1999 Free Speech Coalition v. Reno decision, "factual studies that establish the link between computer-generated child pornography and the subsequent sexual abuse of children apparently do not yet exist." 
Even if such a link can be proved, a person viewing the virtual material is still only guilty of whatever thoughts he or she may have, not actual child molestation. Until the person acts on those thoughts, there is no criminal behavior, only the potential to commit one. "Punishing the potential to commit a crime is punishing thought, not action. This rationale is similar to prohibiting the sale of chemistry books because someone may use the information to make a bomb" (Simon, 1999). It may logically follow, then, that a husband expressing desires that his wife were dead would be guilty of murder, which is, of course, a ridiculous notion. It should be evident that if one had to consider every possible behavior that could follow the expression of every possible thought, one would be afraid to think at all. There would be a profound chilling effect on the free expression of ideas of all kinds. That is unacceptable in America. 
Conclusion
	Child pornography law is solidly based on the premise that actual children are harmed as a result of its production and distribution. I believe that I have demonstrated that pornographic images created without children should not be legally classified as child pornography, since no real children are harmed in the creation of such materials. This moves virtual depictions of children from Level Two to Level One speech. Further, by placing computer-generated images in the same category of expression as art, I believe I have demonstrated that such images should be considered "symbolic speech" and thus receive First Amendment protection.
Through discussion of case law and application of due process, I believe I have demonstrated that the CPPA is unconstitutional because it fails the initial test of due process. The terms "appear to be" and "convey the impression of" minors engaged in sexual conduct are unclear and can be interpreted in ways that would criminalize depictions of minors that may be acceptable under the Miller test for obscenity. The CPPA also runs contrary to the Ferber decision, which was based on the harm caused to real children in the production and distribution of pornographic materials. With virtual children, there can be no such harm. Thus the CPPA language is overly broad in its attempt to regulate child pornography; this law accepts burning down the barn as an acceptable solution to kill mice. 
Based on my research, I have concluded that by banning the images of virtual children, the CPPA essentially criminalizes a person's thoughts and the expression of those thoughts through the use of a computer. This is a direct contradiction of the First Amendment. As Justice Potter Stewart noted in his dissent in Ginzburg v. United States (1966), "the Constitution protects coarse expression as well as refined, and vulgarity no less than elegance." He also observed, "Censorship reflects a society's lack of confidence in itself." 
Mike Godwin, legal counsel for the Electronic Frontier Foundation, which promotes civil liberties in cyberspace (Sussman, 1995), commented, "I think we're still in the turmoil that comes when a new medium is presented to the public and to the government. There's a tendency to first embrace it and then to fear it. And the question is, how will we respond to the fear?"
	Through the CPPA, Congress admits to both a lack of confidence in the enlightened choice of free people, and a fear of the computer technology that allows us to express our most private thoughts. As technology presents greater challenges to the preservation of fundamental freedoms such as the First Amendment, "opening the door to the punishment of virtual crimes, based upon a fear that actual crimes will occur, or that society as a whole will degenerate, is frightful" (Burke, 1997). 
Epilogue
	The Supreme Court issued its opinion in Ashcroft v. Free Speech Coalition on April 16, 2002. In a divided opinion (6-3), the court held that the prohibitions of 18 U.S.C. 2256(8)(B) ("such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct") and 2256(8)(D) ("such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct") are overbroad and unconstitutional. 
In its opinion, the court said the CPPA "prohibits speech that records no crime and creates no victims by its production" and that "the statute prohibits the visual depiction of an idea - that of teenagers engaging in sexual activity - that is a fact of modern society and has been a theme in art and literature throughout the ages." Three justices voted to uphold the section that criminalized computer images, saying the law should have been interpreted narrowly to facilitate child pornography prosecutions rather than broadly to include mainstream entertainment like the movies "Lolita" and "Traffic." (Greenhouse, 2002).
I expect that lawmakers will attempt to rework legislation that would criminalize virtual child porn and pass Supreme Court scrutiny. Perhaps they should reconsider. If allowed to market virtual child pornography, what businessperson (pornographers are concerned with profit) would venture into the illegal production of material that depicted real children? The risks would be too great, production would move into the virtual arena, and real children would not be involved or harmed. Ironically, allowing virtual child porn to exist may be a way to protect children, which is the ultimate goal.
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[1]  It should be noted that not all consumers of child pornography physically abuse children. In child pornography investigations conducted by the United States Postal Inspection Service since 1997, 36 percent turned up actual child molesters (Nordland and Bartholet, 2001).