Monday, October 29, 2001

Battle over pornography goes high-tech

U.S. Supreme Court case involves computer images

By Dan Horn
The Cincinnati Enquirer

        The latest U.S. Supreme Court battle over pornography has nothing to do with naked people.

        It's about computer-generated images of naked people, and whether those images should be regulated the same way as the real thing.

        The case, which opens Tuesday, will focus on the notion of computer-generated images of children engaged in sexual activity. The justices will consider whether youthful, though fake, characters in pornographic films should be outlawed like regular child pornography.

        But the decision could redefine how technology is used in other kinds of depictions of sex, such as in mainstream Hollywood films, computer animation, even comic books.

        The key question: whether a character appears to be too young for sex. With computer images, that can be in the eye of the beholder.

        “This could affect so many people,” says H. Louis Sirkin, a Cincinnati lawyer who will argue before the Supreme Court on behalf of the Free Speech Coalition, an adult business trade association.

        “If it's a computer image, there's no birth certificate. It's not a real person. How do you tell how old someone is?”

        The battle began five years ago, with passage of the Child Pornography Prevention Act. Part of the law made it illegal to produce any sexual image that “appears” to involve a child.

        The adult film industry has challenged the law as unconstitutional because the term “appears” is too vague, especially when the images are computer-generated characters, with no legal ages or birthdays.

        Adult filmmakers fear prosecutors will use the law against them by saying an adult actor — real or digital — appears to be too young.

        “They are trying to sneak through a limitation on the First Amendment and artistic expression,” says Bill Lyon, president of the Free Speech Coalition.

        Supporters of the law say the target is not adult entertainment, but pedophiles who can now manipulate and create realistic images on their home computers. They say child pornography laws should not distinguish between real images and realistic computer images.

        “This is not a form of expression entitled to First Amendment protection,” says Bruce Taylor, president of the National Law Center for Children and Families.

Images more realistic

        Until the arrival of computer-generated images, there was little debate about the difference between adult and child pornography.

        If the movie involved anyone younger than 18, it was child porn and it was illegal. If the participants were over 18, it was legal as long as the film was not obscene, which meant it had at least minimal artistic or educational value.

        But increasingly sophisticated computer imaging technology is producing realistic images of everything from talking lizards in TV commercials to computer-generated humans in movies such as Final Fantasy.

        The technology makes the difference between what is legal and illegal far more subjective. It's impossible, after all, to check the driver's license of an “actor” who is just the computer-generated product of a filmmaker's imagination.

        Fearing what imaginative pedophiles might do with the new technology, Congress passed the Child Pornography Prevention Act in 1996. The law criminalized the creation or possession of fake, but realistic, images of children in sexual situations.

        “Child porn is child porn, whether it's actual images or virtual images,” says Phil Burress, president of the Cincinnati-based Citizens for Community Values.

        “People who are into child pornography are very sick individuals. I don't care if the images are computer-generated or real.”

        The theory behind the law is that fake images are just as harmful as real images because both can be used by pedophiles, to fuel their desire and to lure children into sex.

        So even though computer-generated images don't involve an actual child, and therefore a victim, they still are considered harmful to children.

        “Child porn is an insidious tool in the hands of pedophiles,” says Jan LaRue, director of legal stud ies at the Family Research Council in Washington, D.C. “A 6-year-old doesn't know if it's a real person or not.”

A key phrase

        ; Those who challenge the law are quick to point out that they don't support child pornography. They say their main concern is the portion of the law that targets any “visual depiction that is, or appears to be, of a minor engaging in sexually explicit conduct.”

        The phrase “appears to be” is seen by some as an attempt to give prosecutors another weapon in their war on legal adult entertainment.

        “This would have the effect of causing an incredible amount of harassment on adult businesses,” says Mr. Lyon, director of the Free Speech Coalition.

        If the law stands as written, Mr. Lyon and others predict, it will dramatically change adult and mainstream entertainment.

        Comic books and cartoons. Pornographic movies with young-looking adult actors. Any image, real or fake, might be challenged under the law.

        Even a Hollywood blockbuster such as Traffic would technically violate the law because it depicts teen-aged characters in sexual settings. In Traffic, a high school student gets involved in drugs and sex. The actress was an adult.

        “If they appear to be underage, you have a problem,” Mr. Sirkin said.

        Defenders of the law say such talk of a far-reaching impact is ridiculous.

        Only realistic, photo-quality images of children are covered under the law, Mr. Taylor said, and images of young-looking adults would be targeted only if they are marketed or promoted as being images of children.

        “This is not going to change Hollywood or the adult business,” Mr. Taylor said.

        Mr. Sirkin agrees that child pornography is not protected under the constitution, but he objects to the way the law defines it.

        The case is going to the Supreme Court after four lower appeals courts ruled in different ways on the same issue. Three upheld the law and one found it unconstitutional.

        Mr. Sirkin said he will argue that the emphasis on how the images “look” is too subjective. He says artists and filmmakers now will face years in prison if a judge or jury concludes they created an image that “appears to depict” a juvenile.

        There is no way a computer animation filmmaker can defend themselves, he said.

        “It's not real, so there's no defense,” Mr. Sirkin says. “You can't prove the person is of (legal) age.”

Technology's potential

        Most of the debate today is about the potential of the new technology, not what it can do right now.

        Despite recent advances, most attempts at computer imaging by anyone outside of Hollywood are still relatively crude. The Internet is filled with photos that were obviously doctored to depict celebrities doing things they'd never do in public.

        “With computers, you can do whatever you want,” says Bryn Pryor, technology editor for Adult Video News in Van Nuys, Calif. “You can take a 60-year-old woman and make her look like a 16-year-old girl.”

        But no one can produce a realistic, photo-quality feature film involving computer-generated human characters. That, he says, is still a few years off.

        The summer movie Final Fantasy,which featured realistic human characters, was still obviously not real.

        Adult filmmakers are so far only dabbling in computer imaging. Some films have depicted real people in computer-generated settings, but none have featured realistic, computer-generated people.

        “Undoubtedly, someone will do it some day,” Mr. Pryor says.

        That's why both sides in the Supreme Court case want the issue decided soon.

        The court will hear arguments Tuesday afternoon. A decision should follow sometime next year.


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