Court overturns fake child porn act
The section in question made it a crime to possess digital images or videos of people who "appear" to be minors engaging in sexual acts, even if the participants are youthful-looking adults who appear to be under the age of consent.
In a 2-1 ruling on Friday, the court said, "We find that the phrases 'appears to be' a minor, and 'convey the impression' that the depiction portrays a minor, are vague and overbroad and thus do not meet the requirements of the First Amendment."
The court said the balance of the Child Pornography Prevention Act, or CPPA, was constitutional when those phrases are removed. The U.S. government now has the option of requesting an "en banc" hearing on the issue, in which 11 judges would consider the case.
The decision overturns an August 1997 ruling by U.S. District Judge Samuel Conti, who said fake child porn could be regulated because of the "the devastating" effect it has on society and on the well-being of children.
Opponents "ecstatic" after ruling
The Free Speech Coalition -- a trade association representing the adult entertainment industry -- had challenged the law, saying it was overly broad and could have criminalized the distribution of movies such as "Return to the Blue Lagoon," a controversial 1991 movie that depicted teenagers involved in sexual activity. The ACLU supported the coalition in its efforts to get that part of the CPPA overturned
"I'm ecstatic," said Jeffrey Douglas, chairman of the Free Speech Coalition's board of directors. "What's exciting is it's a validation of a very important First Amendment right."
The Ninth Circuit ruling is contrary to rulings by other appeals courts. Two other district courts have upheld the CPPA. Douglas said that's because those cases dealt with pornography involving actual children while his group's case raised the question of whether movies with characters portraying minors engaging in sexual acts were breaking the law.
Friday's ruling could have the most immediate impact on Patrick Naughton, a former Infoseek executive convicted Thursday of possession of child pornography. The Ninth Circuit has been considering the CPPA for nearly two years, and Naughton's attorneys think the judges were waiting for his trial to finish.
Experts involved in the CPPA case think Naughton's attorneys will cite the ruling in an effort to free their client pending his sentencing on March 6.
Naughton and his attorneys were caught off guard Thursday when a federal judge ruled he should be immediately jailed because the law considers child pornography a "crime of violence."
The judge could release Naughton until the sentencing if there is a likelihood he will prevail on appeal. Naughton's attorneys intend to appeal the child porn conviction based in part on the assertion that the CPPA is unconstitutional. Friday's Ninth Circuit ruling may bolster that effort.
However, during Naughton's trial, a prosecution witness testified that two of the children appearing in some of the images found on Naughton's computer were 8- and 9-year-olds who belonged to a child porn ring, not adults who "appear" to be under-age.
Naughton claimed he didn't know the images were on his computer, which was seized after his arrest for allegedly soliciting sex from an undercover FBI agent posing as a 13-year-old girl in a chat room. A jury deadlocked on charges that he traveled over state lines to have sex with an underage girl and used the Internet to entice a minor.