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Supreme Court Strikes Down Ban on Virtual Child Pornography

The ban included sexually explicit material that “conveys the impression” that a child was involved in its creation, even if none were used.

The court ruled the “virtual pornography” law violated free speech rights. The ruling is a blow to the Justice Department, which in March launched “Operation Candyman,” designed to crackdown on Internet-based child pornography.

The 1996 law addressed advanced computer imaging technology enabling the manipulation of non-sexual images of children into images of them engaging in sex acts. Under the law, producing or selling such pornography was punishable by up to 15 years in prison, while possession was punishable by up to five years.

Pornographers and mainstream filmmakers are hailing the ruling as a victory. Critics had said that such a wide ban could make it a crime to depict simulated sex scenes, such as those in the movies “Traffic” and “Lolita.”

Justice Anthony M. Kennedy led the court majority, finding two provisions of the 1996 Child Pornography Prevention Act overly broad and unconstitutional.

“The First Amendment requires a more precise restriction,” wrote Justice Kennedy for himself and Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

In rejecting the Justice Department’s argument, Justice Kennedy asserted that virtual child pornography was not directly related to child sexual abuse. Justice Thomas joined the majority, but wrote a separate opinion.

Justice Sandra Day O’Connor dissented, as did Chief Justice William Rehnquist and Justice Antonin Scalia.

“The aim of ensuring the enforceability of our nation’s child pornography laws is a compelling one. 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,” Rehnquist wrote in a dissent joined by Scalia.

Congress said the ban was necessary as pedophiles could be prompted to harm real children, even if no real children are harmed in creating the pornographic material.

The pornographers’ trade group, the Free Speech Coalition, said it opposes child pornography but that the ban could snare legitimate, if unsavory, films and photographs. The group did not challenge a section of the law banning the use of identifiable children in computer-altered sexual images.