The U.S. House of Representatives voted on June 25, 2002 to approve overwhelmingly a revised version of a bill restricting computer-generated sexual images of minors. The Child Obscenity and Pornography Prevention Act [pdf format] (COPPA), sponsored by Rep. Lamar Smith (R-TX) was passed by a vote of 318-8. COPPA represents the House’s attempt to overcome the April 16, 2002 U.S. Supreme Court decision in Ashcroft v. The Free Speech Coalition [pdf format], which struck down the 1996 Child Pornography Prevention Act (CPPA).
Two weeks after the decision striking down CPPA in Ashcroft v. The Free Speech Coalition, Attorney General Ashcroft dedicated Justice Department resources to the effort to help Congress craft a new law that would survive Supreme Court review. Some scholars are dubious as to whether the new bill will fare better than the old. "I don't understand why they think this statute is going to eradicate any of the problems that the Supreme Court explicitly delineated in its recent decision," said Megan Gray, a lawyer at the Electronic Privacy Information Center.
The new bill includes relatively minor changes from the 1996 CPPA bill, which prohibited any image that "appears to be" a minor. The new bill refers to any computer-generated image that is "virtually indistinguishable from that of a minor engaging in sexually explicit conduct." Justice Kennedy’s majority opinion in the April 16 Supreme Court decision (joined by Justices Souter, Ginsburg, Stevens and Breyer), which found CPPA violative of the First Amendment, stated that the Act "also prohibits speech having serious redeeming value, proscribing the visual depiction of an idea -- that of teenagers engaging in sexual activity -- that is a fact of modern society and has been a theme in art and literature for centuries."
Why This Matters: Congress seems never to have met an anti-child pornography bill it did not love, and the Senate version of COPPA is expected to pass and the COPPA will become law. Short of a change of Supreme Court justices, there is little reason to believe that this revised law will pass constitutional muster with the Supreme Court.
This article originally appeared in ADLAW By Request, a publication of Hall Dickler Kent Goldstein & Wood LLP.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.