WASHINGTON — In a surprisingly strong defense of the right to free speech, the Supreme Court on Tuesday struck down part of the federal child pornography law that makes it a crime to sell or own images of computer-created children engaged in sex.
The justices also said the 1st Amendment shields films and photographs that show adult actors who "appear to be minors" involved in sex.
In both instances, the court said, in a 6-3 vote, that Congress had gone too far in a laudable effort to stamp out child pornography.
"The sexual abuse of a child is a most serious crime, and an act repugnant to the moral instincts of a decent people," said Justice Anthony M. Kennedy.
But no real children were portrayed in the photographs and films at issue in Tuesday's decision, he said. The government cannot make it a crime to show sexual images that only "appear to be" children without threatening legitimate filmmakers, photographers and advertisers, he said.
Award-winning Hollywood films such as "Traffic" and "American Beauty" could be subject to prosecution, Kennedy said, if the law were applied literally. Those films contain scenes of sexuality featuring adult actors portraying underage characters.
Tuesday's ruling creates an immunity for a new generation of "virtual" pornographers who rely entirely on computer images. So long as no real children are portrayed--or "morphed" into a sex scene--the image, film or photograph cannot be prosecuted as child pornography, the court said.
There is one exception. A truly obscene work can be prosecuted as a crime, the court noted, since obscenity is outside the protections of the 1st Amendment.
But it is hard to win an obscenity case, and prosecutions are rare. To win such a case, the government must convince a jury that a film is sexually graphic, "patently offensive" and lacks any other redeeming value.
Atty. Gen. John Ashcroft condemned the court's ruling, saying it would make the prosecution of child pornography "immeasurably more difficult."
Where possible, the attorney general said prosecutors will "pursue general obscenity charges" against virtual child pornographers.
"I am committed to working with the Congress to develop strong measures to fight child pornography that will survive judicial scrutiny," he added.
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