Sitting in a borrowed courtroom for a second day, the court considered a free speech case with implications for the future of high technology if not high art. Free speech advocates and pornographers challenged a 1996 law in which Congress forbade any visual depiction of what "appears to be" children in sexually explicit situations or that is advertised to convey the impression that someone under 18 is involved.
Through computer wizardry not available when the court placed child pornography outside First Amendment protection in 1982, pornographers can create dirty movies about children and adolescents that involve no actual children. Legitimate filmmakers also can fool the eye by using youthful-looking adult actors to portray adolescents, and it was the consequences of that practice that captured the justices' attention Tuesday.
Told that the 1996 Child Pornography Prevention Act would stomp on artistic freedom, Justice Antonin Scalia reacted strongly. "Such as what?" he demanded. "I'm trying to think what great works of art would be taken away from us if we were unable to see minors copulating." Louis Sirkin, representing a trade association for pornographers, drew unintended laughter by replying that along with the 1979 Academy Award-winning drama "The Tin Drum," old Brooke Shields movies might be off-limits under a strict interpretation of the government's position.
"The Tin Drum" is an allegorical tale of a school-age boy growing up in Nazi Germany. It includes a gauzy scene of the boy apparently engaged in oral sex with an older girl.
Justice Sandra Day O'Connor asked the government's lawyer about a sex scene in the movie "Traffic," last year's Academy Award-winning drama about the mechanics and politics of the drug trade. The movie depicts a high school girl in bed with an older drug dealer. A startlingly frank discussion of the scene ensued, along with a pointed question for the administration from Justice Stephen Breyer. "I go to the video store, and I buy three movies: "Traffic,' "Lolita" and "Titanic,"' Breyer said. "Each contains simulated sexual activity by someone who is 17" or younger. "The question is, why am I not guilty (of possessing child pornography) under your interpretation?"
Deputy Solicitor General Paul Clement tried to reply that the government is only trying to protect children but was interrupted by more questions. He later said the government isn't after people who "pick up "Traffic' at the Blockbuster." He also said that, in his opinion, the movie would not have suffered if that sex scene had been cut.
Outright use of children to depict sex acts is illegal, as is possession or transmission of illicit child pornography. The California-based pornographers' group says it opposes child pornography but thinks the 1996 law went too far. The 9th U.S. Court of Appeals agreed, but other federal appeals panels have ruled the other way.
The Justice Department claims that without the law prosecutors will have difficulty winning cases in which it is hard to discern images of real children from computer-generated fakes. "If you want to make it easier for the government to get convictions, do away with the Bill of Rights," Sirkin replied in exasperation.
The case is Ashcroft v. Free Speech Coalition, 00-795.