Morphing of Child Porn
At issue before the Circuit Courts has been the constitutionality of the 1996 Child Pornography Prevention Act (CPPA) in which Congress sought to modernize federal law by enhancing its ability to combat child pornography in the cyberspace era(Free Speech). There is a split in the circuit courts regarding this bill, and this essay will address the discrepancy.
This piece of legislation classifies an image that "appears to be" or "conveys the impression" of a minor engaging in sexually explicit acts as "virtual" child pornography. Such images include a photograph of a real child that may be scanned, replicated and manipulated by computer to create a sexually-oriented photo, or a wholly fake child that may be generated solely by computer graphics.
Congress recognized a loophole in the child pornography law, in that technological improvements have made it possible for child pornographers to use computers to "morph" or alter innocent images of actual children to create a composite image showing them in sexually explicit poses.
With this in mind Congress intended to (1) ban computer-generated images that are "virtually indistinguishable" from those of real children, (2) to protect the privacy of actual children whose innocuous images are altered to create sexually explicit images and (3) to deprive child abusers of a "criminal tool" frequently used to facilitate the sexual abuse of children.
On December 17, 1999, in Free Speech Coalition v. Reno, the Ninth Circuit struck down the law as a content-based restriction on protected speech not in furtherance of any compelling governmental interest because the prohibited images are not of actual children. According to that Court "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."(Ibid.)
This ruling created a split with the First Circuit which held in United States v. Hilton, that the CPPA's definition of child pornography withstands constitutional scrutiny. The First Circuit found itself "firmly satisfied that it is well within Congress's power to regulate virtual pornography of minors of all ages."(United)
The Ninth Circuit recognized there is a compelling interest in banning child pornography but stated that the U.S. Supreme Court in Ferber "implicitly rejected the regulation of...