Where does the First Amendment end and Child Pornography begin? Who is winning the war? Is the Constitution becoming a mine field in the battle?

Making or possessing standard photographic style child porn depicting images of real children is illegal. It is also illegal to post child porn on the internet. It is likewise illegal to download child porn off the internet and possess it on your hard drive. It sounds fairly simple. So what questions are left unresolved to be exploited by pedophiles?

Where does free speech end and the “prurient interest” begin? The answers are not that simple. Ten years ago in the Larry Flynt world it was easy. In the new reality of “virtual worlds“, power macs, and hentai anime, it becomes more complicated. Advancing technologies in the creation and distribution of such media are winning the race against the ability of the courts and law enforcement to confront them. Internet “virtual worlds” such as “Second Life” have received criticism for promoting virtual child pornography in the wake of the Supreme Court decision striking down its ban. So what is being done?

Internet providers Verizon, Sprint and Time Warner Cable have recently agreed to block access to child pornography and eliminate the material from their servers. The companies are also contributing $1.1 million to help fund efforts to remove the online child porn created and disseminated by users through their services.

What about “virtual porn”? Computer generated images of children engaging in sex acts taking place in the many “virtual worlds” on the internet. There are some that would argue that this is a form of art and protected by The First Amendment. There are those that counter that if the intent is to appeal to the base “prurient interest” it does not matter what form it takes.

The Supreme Court recently dealt with this issue. In 2002 the Supreme Court struck down a ban on the possession of virtual child pornography which “appeared to” but did actually depict real children engaging in sex acts. This specifically included computer generated or “virtual images” of children engaging in sex acts. The 6-3 ruling stated that the law violated the First Amendment guarantee of freedom of speech. This ruling is considered a major defeat for the Justice Department in its war on child pornography. The majority pointed out several instances of what would be considered legitimate art depicting children in sex acts. Justice Sandra Day O’Connor stated in the dissent that the images at issue unlike the examples pointed out by the majority were virtually indistinguishable from real children. The test for the time being seems to be that if it can be artificially created, no matter how disgusting or explicitly, it will be protected free speech.

After that crushing defeat, the House attempted to re-define the ban or virtual porn to pass Constitutional muster. The House approved the “Child Obscenity and Pornography Prevention Act of 2002″ (COPPA). This act basically redefined “virtual porn” to take out the “art house” element. by banning only those computer images that are “morphed” and indistinguishable” from real child porn images. You can read a primer on the various laws related to internet child porn here

Virtual pornography is in fact illegal in other countries such as Germany. In Germany the general definition of pornography includes virtual porn. The possession of it is punishable by up to five years in prison. German prosecutors have gone after the creators of virtual porn in the Second Life virtual community.

Regardless of the fact that there are no actual children involved, there is concern in the law enforcement community that children are in fact ultimately harmed and exploited by virtual pornography. There are often real pedophiles behind these “virtual personas” in virtual communities. These virtual personas are being used by pedophiles to solicit minors into real life encounters no different than on-line chat rooms. It is a tried and true tactic of pedophiles to show children images of or children engaged in sex to break down to convince them that the behavior is normal. Virtual porn could be used for that purpose and no crime would be committed. With no fear of prosecution if exposed, would this not feed the desires of those with prurient motives? Does this not ultimately put more and more children at risk?

I decided to take my own unscientific pool asking the simple question in the title of this post. The general age range of the pool was 18-34. The answers were overwhelmingly of the opinion that virtual porn was not harmful to children and deserving of protection since it did not depict real children.  Here are some of the comments:

” If it’s virtual then no children are being harmed. Compare it to any other virtual crime – guns – killing – raping – all legal as long as it’s virtual.”

” The big difference is the involvement of actual children. Child porn is pretty unambiguously horrible because to make it, you obviously need to sexually harm children. Virtually creating it doesn’t need to involve children. Either one is still messed up, but they really can’t be considered one and the same.”

” Pedophiles can’t really help what they get turned on by. I would much rather give them a safe outlet for it, than to have them exploit or harm real children.”

” I think virtual child porn should not be protected as free speech. The more that people see these images, the more desensitized they become. When people aren’t shocked by images of children involved in sex acts, the acts themselves start to become accepted behavior. It is, as they say, a slippery slope. Besides, why give pedophiles any encouragement at all?”

Should virtual child pornography be protected under the First Amendment? Is there a point where art and reality overlap to such a degree that something has to be done?