Lawmakers, angry at the Supreme Court for striking down parts of an anti-child pornography law, are proposing legislation they hope will pass constitutional muster while banning computer simulations and other fool-the-eye depictions of teen-agers or children having sex.

The government went too far in its first attempt to ban such simulations, the Supreme Court ruled April 16. Many opponents of the ruling claim it will put schoolchildren at greater risk from pedophiles.

“I hope this legislation meets the standard set by the Supreme Court,” said Rep. Mark Foley, R-Fla., at a news conference held May 1. “Pedophiles do not have a First Amendment right to gawk over exploited children, real or virtual.”

The 1996 Child Pornography Prevention Act was intended primarily to stop pornography produced through computer wizardry not available when the court placed child pornography outside First Amendment protection in 1982.

But on April 16, the court threw out parts as overly broad and unconstitutional. Free-speech advocates and pornographers had challenged the law’s ban on material that “appears to be” a child in a sexually explicit situation or that is advertised to convey the impression that someone under 18 is involved.

Youthful sexuality is a venerable theme in art, from Shakespeare to Academy Award-winning movies, the court found in striking down key provisions of the 1996 law.

The law would call into question legitimate educational, scientific, or artistic depictions of youthful sex, Justice Anthony M. Kennedy wrote for a 6-3 majority.

“The statute proscribes the visual depiction of an idea—that of teen-agers engaging in sexual activity—that is a fact of modern society and has been a theme in art and literature throughout the ages,” Kennedy wrote in a decision joined by four other justices.

Clarence Thomas, one of the court’s most conservative justices, wrote a separate opinion agreeing with the outcome.

Attorney General John Ashcroft said the ruling makes prosecution of child pornographers “immeasurably more difficult.” He offered to work with Congress on new legislation that could withstand the court’s scrutiny.

Another section of the 1996 law was not challenged, and remains in force. It bans prurient computer alteration of innocent images of children, such as the grafting of a child’s school picture onto a naked body.

Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer signed Kennedy’s opinion. Thomas, in a separate concurring opinion, said the court’s ruling appropriately strikes down a ban that was too sweeping but leaves a window for future regulation of some kinds of virtual child pornography.

Justice Sandra Day O’Connor partially agreed with the majority and partially disagreed. The law is indeed too broad, but a portion of it could be salvaged, O’Connor wrote.

Chief Justice William H. Rehnquist and Justice Antonin Scalia dissented, arguing that the law need not be read to ban the kind of artistic material that concerned Kennedy.

“The aim of ensuring the enforceability of our nation’s child pornography laws is a compelling one,” Rehnquist wrote for the pair. “The [law] is targeted to this aim by extending the definition of child pornography to reach computer-generated images that are virtually indistinguishable from real children engaged in sexually explicit conduct.”

Conservatives outside the court were outraged.

“That the Supreme Court of the United States can entertain the notion that virtual images of children being sexually violated has ‘value’ that needs protection is an abomination,” said Jan LaRue, legal studies director at the Family Research Council.

“The high court sided with pedophiles over children,” said Foley, who co-chairs a congressional caucus on missing and exploited children. “This decision has set back years of work on behalf of the most innocent of Americans.”

The case is Ashcroft v. Free Speech Coalition, 00-795.

Related links:
Rep. Mark Foley, R-Fla.
http://www.house.gov/foley

U.S. Supreme Court
http://www.supremecourtus.gov

Family Research Council
http://www.frc.org