Eye on Big Brother
by Liz Highleyman

From Issue 3.2 - December 1996/January 1997

New Pornography Restrictions

The federal appropriations bill passed by Congress in October included a provision known as the Child Pornography Prevention Act of 1996 that bans "any visual depiction" that "appears to be" a minor engaging in sexually explicit conduct, even if no children are actually involved in its production.

The legislation will outlaw computer-generated depictions of children and altered photographs, as well as the use of older models or actors who "appear to be" under 18 years of age. Previously, only porn that showed actual children was illegal. Violators are subject to a fifteen year jail sentence.

Free speech advocates claim that the law is unconstitutional. Daniel Katz of the American Civil Liberties Union (ACLU) noted that the purpose of the previous law -- which the ACLU supports -- was the protection of children exploited in the production of pornography; in the case of computer-generated images, there are no such children to protect.

CDA Appealed to Supreme Court

On October 31, the ACLU filed a motion asking the Supreme Court to affirm a lower court ruling that the Communications Decency Act (CDA) -- a law that would severely restrict computer-based communication that is "indecent" or "patently offensive" -- is unconstitutional. Co-plaintiffs in the lawsuit (American Library Association, Citizens' Internet Empowerment Coalition, and others) filed a similar brief.

The lower court ruling in the CDA case -- known as ACLU vs Reno -- was delivered by a three-judge panel in Philadelphia in June. The judges ruled that the CDA was not the "least restrictive" means of protecting children from sexually explicit material, and was an impermissible restriction on what adults can see and read.

The Department of Justice appealed the ruling to the Supreme Court. In a late September jurisdictional statement, the government argued for a change in the scope of the law at the appeal stage, a highly unusual practice.

The ACLU motion asks the Supreme Court to find that the lower court's decision was constitutionally correct, and therefore does not merit further examination. Such a "summary affirmance" is rarely granted when the constitutionality of a federal law in under consideration.

NEA Ruling Overturned

The 9th Circuit Court of Appeals ruled on November 5 that a 1990 law requiring the National Endowment for the Arts (NEA) to consider "decency and respect" for "public values" when making grants to artists is unconstitutional. In a 2-1 ruling, the three-judge panel called the law "overly vague" and discriminatory, since artists could be refused funding based on controversial political, social, or sexual messages. According to Judge James Browning, "Government funding of the arts...must be viewpoint neutral."

The law has been on hold since 1992 when it was challenged by four performance artists who were denied NEA funding for their controversial and often sexually explicit work. The NEA issue gained attention when Senator Jesse Helms condemned funding of art that is homoerotic, offensive to religion, or judged to be otherwise objectionable.

Judges Browning and Warren Ferguson stated that terms like "decency and respect" and "public values" provide no measurable standard, since Americans "have a great many beliefs and values." Dissenting Judge Andrew Kleinfeld claimed that while the government cannot forbid indecent speech, it is not obligated to subsidize it.

Newsrack Appeal Fails

In a less favorable ruling, the 9th Circuit Court decided on September 11 to uphold a California law that bans the sale of sexually explicit newspapers from street newsracks. The law, known as AB17, was passed in 1994 and has been on hold pending appeal. The legislation would require 24-hour guards near newspaper vending machines to prevent access by minors.

The legal challenge was put forth by a coalition of adult publications including Spectator newspaper. The opposing attorney argued that non-obscene sexually explicit materials are "harmful to minors," even if no minors actually access the material. The editors of Spectator argue that newsrack sales are necessary to get their sexual freedom message out to the broader mainstream public, rather than only to the "converted" who will seek out the newspaper in stores.

The plaintiffs have requested reconsideration by the full 9th Circuit panel. If this is denied, the only remaining level of appeal is the Supreme Court. First Amendment lawyer Stanley Fleishman believes the Supreme Court may be inclined to hear the case because it addresses concerns similar to those in the pending Communications Decency Act case.

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Last updated: 8 January 1997