House of Representatives Passes COPPA -- ABFFE and Others Warn Bill Is Unconstitutional

On Tuesday, June 25, the U.S. House of Representatives voted, by a margin of 413 to 8, to pass the Child Obscenity and Pornography Protection Act of 2002 (COPPA). The bill, HR 4623, amends the federal criminal code to criminalize the production, dissemination, or possession of computer-generated, or computer images that are, or are virtually indistinguishable from, child pornography. Civil liberty groups warn that COPPA contains similar flaws to the Child Pornography Prevention Act (CPPA), a bill banning obscene images that "appear" to be of minors, which was declared unconstitutional by the United States Supreme Court in April 2002.

"The passage of this new bill is an example of the difficulty that elected politicians have in dealing with such a politically sensitive issue as child pornography," said Chris Finan, president of the American Booksellers Foundation for Free Expression (ABFFE). "The House has almost unanimously passed a bill that violates the First Amendment in the same ways as the law that was struck down by the Supreme Court. In fact, this bill is even worse because not only does it cover images that do not involve real children, it covers media that were not included in the first bill -- sculptures and paintings."

In short, COPPA criminalizes as child pornography any image as long as it is, or is indistinguishable from, child pornography. This would include images in which adults were used and made to look like minors. COPPA also prohibits selling or receiving materials that are, or are advertised as, child pornography.

Furthermore, in Section 5 of HR 4623, it criminalizes anyone who knowingly produces, distributes, receives, or possesses a visual depiction that is, or is indistinguishable from, a pre-pubescent child engaging in sexually explicit conduct, including drawings, cartoons, sculptures, and paintings.

As a result, COPPA could conceivably impact booksellers, warned David Horowitz, executive director of the Media Coalition, a trade association that defends businesses’ First Amendment right to produce and sell books, magazines, recordings, videotapes, and videogames. "There are picture books, or some books of art, that could be troubling," he said, and added: "Why are paintings [mentioned] in [COPPA]? They keep putting it back in there."

Also making COPPA constitutionally problematic is that it criminalizes images that use adults made to look like minors. "If you’re not using minors, then you’re outlawing the idea -- you’re calling it child pornography because of the idea it conveys," Horowitz explained. "The rationale for outlawing child pornography is not the idea -- however terrible that is -- it is the fact that the state had a compelling interest in protecting a child from physical harm. If you’re not using real children, you cannot outlaw ideas."

The U.S. Supreme Court struck down CPPA for a similar reason. The court found CPPA unconstitutional because "the prohibition on child pornography is based on the link between the creation of the image and the sexual abuse of the children shown in the image. If an image is created by use of computer technology or by photographing adults pretending to be children, there is no basis in the law to ban the image." Additionally, the Supreme Court wrote, "The law, as written, is overbroad, prohibiting otherwise legal, non-obscene images depicting teenagers engaging in sexual activity, such as filmed depictions of Romeo and Juliet or Lolita."

For their part, supporters in Congress are confident that COPPA has answered the Supreme Court’s issues with CPPA and can withstand constitutional review. Rep. Adam Schiff, (D-California) said the bill had been written "as narrowly as possible" to avoid violating the First Amendment, as reported by News.com. --David Grogan