WASHINGTON - The Supreme Court, affirming that free-speech principles apply with full force in the computer age, struck down provisions of a federal law yesterday that made it a crime to create, distribute or possess "virtual" child pornography using computer images of young adults rather than actual children.
The law, the Child Pornography Prevention Act of 1996, "prohibits speech that records no crime and creates no victims by its production," Justice Anthony M. Kennedy wrote for the majority in the court's latest decision upholding First Amendment protections in cyberspace.
Instead, he said, "the statute prohibits 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."
Six justices agreed that the law violated the First Amendment in all the respects that the court considered in its review of a constitutional challenge brought by a trade association of adult entertainment businesses calling itself the Free Speech Coalition.
A seventh justice, Sandra Day O'Connor, agreed that the government could not constitutionally make it a crime to use young-looking adults and present them as children, making the ruling a 7-2 decision on that aspect of the law. But she, along with Chief Justice William H. Rehnquist and Justice Antonin Scalia, voted to uphold the provision criminalizing computer-generated images, resulting in a 6-3 decision. The increasing technological sophistication of those images, the dissenters said, made it too easy for child pornographers to avoid liability by claiming that their material did not depict real children.
Rehnquist and Scalia said the court should have upheld the entire law by interpreting it more narrowly to apply only to the "pandering" of material that was "virtually indistinguishable" from real child pornography, and not to the Hollywood movies and other mainstream entertainment that was a focus of the majority's concern.
Attorney General John Ashcroft said yesterday that the court's decision would make prosecuting child pornography "immeasurably more difficult" but that the department would review and try to preserve current prosecutions by filing superseding indictments under other laws.
Kennedy said in his majority opinion that the law was unconstitutionally broad, so far-reaching as to have the potential to chill expression with clear artistic and literary merit. Given that Shakespeare's Juliet was only 13 years old, Kennedy said, modern-day productions of Romeo and Juliet could theoretically be vulnerable under the law, along with such recent Academy Award-winning movies as Traffic and American Beauty, which depict teen-agers in explicit sexual situations.
The law was not restricted to obscenity - material that under prevailing community standards has no redeeming social value - but rather applied to "any visual depiction" that "is, or appears to be, of a minor engaging in sexually explicit conduct." In another section struck down yesterday, it also made it a crime to advertise or promote material "in such a manner that conveys the impression" that it is real child pornography.
The law defined minors as those under 18. It was passed with little public attention as part of a budget measure at the end of the 1996 congressional session.
Noting that the statute carries criminal penalties of up to 15 years in prison for a first offense and 30 years for a second, Kennedy said that "few legitimate movie producers or book publishers, or few other speakers in any capacity, would risk distributing images in or near the uncertain reach of this law."
Further, he said, the government's justifications for the law's breadth were insufficient because "the government has shown no more than a remote connection between speech that might encourage thoughts or impulses and any resulting child abuse." The government argued that material appearing to be child pornography harmed children by sustaining the market for it and encouraging those who would exploit children.
"The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it," Kennedy said.
He came close to accusing Congress of having created a thought crime.
"First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end," Kennedy said, adding: "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."
Kennedy's opinion was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Justice Clarence Thomas concurred separately, suggesting the court should not foreclose the possibility of upholding a more narrowly drawn law.