1st Amendment and Virtual Child Pornography the Essay

1st Amendment and Virtual Child Pornography

The question whether "virtual child pornography" should be protected by the First Amendment of the U.S. Constitution depends on whether it is a category of speech that falls under the free speech guarantee of this constitutional provision. The First Amendment in its relevant part provides that "Congress shall make no law & #8230; abridging the freedom of speech." The constitutional guarantee of free speech is not limitless. There are some categories of expression developed by the U.S. Supreme Court that do not enjoy constitutional protection by the First Amendment. One of the non-protected categories is "child pornography." In the case New York v. Ferber of 1982 the U.S. Supreme Court has ruled that child pornography, regardless of whether the material was obscene, is one of the exceptions carved out of the scope of the First Amendment free speech protection because the interest of society in protecting children against abuse outweighs its interest in this form of speech (see Coleman. S. You only live twice: How the First Amendment Impacts Child Pornography in Second Life, p. 1). "Virtual child" pornography material is different from "child pornography" material in so far as it does not make use of real children images.Rather the pictures are completely fictional (see Cisneros, D. "Virtual Child" Pornography on the Internet: A "Virtual" Victim?, p. 1). The question therefore is whether both manifestations of child pornography are to be treated alike under the First Amendment. In its "Ashcroft v. The Free Speech Coalition" decision of 2002 the U.S. Supreme Court considered the constitutional validity of a part of the "Child Pornography Prevention Act" ("CPPA) of 1996 that banned "virtual child" pornography and thereby extended the Ferber rule. The Supreme Court came to the conclusion that this part of the CPPA could not be upheld because it was overbroad and unconstitutional under the First Amendment (see Cisneros, p. 1 f.). Congress had enacted the CPPA in 1996 to fight the ongoing battle against sexual exploitation of children by using a very expansive definition of "child pornography" that proscribed all apparently realistic pornographic depictions of children: actual, virtual, or any combination thereof (see Coleman, p. 202). The result has been that as long as material created the impression that a child was actually been depicted therein, it lost its First Amendment protection (see Coleman, p. 202). The government had presented four arguments why the statutory ban on virtual….....