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Can a roast turkey be "child pornography"? US federal courts can't decide.

Within the past year, the sweeping Child Pornography Protection Act (CPPA) of 1996 has been struck down by one federal appeals court and upheld by another. Earlier, two other such courts upheld the law. On November 3rd, the 4th Circuit Court of Appeals in Baltimore weighed in with its opinion, declaring the CPPA constitutionally sound, and affirming the conviction of Joseph Mento III for possession of digital images he found on the Internet.

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Conflicting opinions among federal judges about the first amendment aspects of depictions of minors are expected to hasten the inevitable review of the CPPA by the US Supreme Court.

The most hotly disputed feature of the CPPA is its expansion of the federal kiddie-porn proscription to include "morphed" or otherwise digitally-altered images. In addition, it criminalizes sexual depictions by actors over 18 of persons under that magic age, and other material whose creation involves no actual minors. Indeed, the law declares that any object at all presented or advertised as kiddie porn is exactly that.

Introduced in the US Senate by the reactionary Orrin Hatch (R.-Utah), the CPPA was a hands-across-the-aisle effort supported by Christian Right Republicans and victim-culture Democrats, notably Diane Feinstein (D.-California). The legislation floated in on a tide of hype about the depraved potential of new technologies, and the need to step in and regulate that purported hotbed of sexual predation (and source of profit), the Internet. Most members of Congress were afraid to vote against it. It hardly mattered that commercial kiddie porn was virtually nonexistent in the US, except for material cobbled together by government agents for sting operations.

Shift to thought-crime

Philosophically, the CPPA represents a shift in focus from the alleged harm done to minors used in the creation of porn to the alleged harm caused by its dissemination. Janet Reno's Justice Department defends the law on the grounds that both real and simulated kiddie porn serve as aids to illegal sex.

When the CPPA was signed into law, some civil libertarians assumed it had little chance of survival once tested in court. But in its first serious court challenge, the CPPA was upheld. In August 1997, dismissing a lawsuit by the Free Speech Coalition, an alliance of 600 adult entertainment businesses, federal Judge Samuel Conti of the US District Court of Northern California ruled that "Even if no children are involved in the production of sexually explicit materials," the harmful effects of such materials on society and "the well-being of children" mandates regulation. Drawing on rhetoric bandied about in Congressional hearings. Judge Conti expressed concern that such materials serve to whet the erotic appetite and are used to "desensitize" youngsters into sex. The Free Speech Coalition appealed the decision.

While the appeal in Free Speech v. Reno was pending, a criminal case in Maine involving possession of child porn by David Hilton, a self-described anti-smut crusader, followed a different trajectory. In March 1998, Judge Gene Carter of the US District Court in Portland ruled in Hilton's favor, striking down the portion of the law criminalizing computer-generated sexual images of children. But in January 1999, the Justice Department won a reversal of the Hilton decision in the 1st District Court of Appeals.

Then, in December 1999, the 9th Circuit Court of Appeals in San Francisco weighed in with an opposite ruling in Free Speech v. Reno. Deciding the case two-to-one in favor of the plaintiff, the three-judge panel voided portions of the CPPA for the nine Western states within its jurisdiction. Judges Donald Molloy and Sidney Thomas found that the government "has no compelling interest in regulating sexually explicit materials that do not contain visual images of actual children." Eleven months later, in the Mento case, the 4th Circuit Court of Appeals would repudiate that point of view.

While jurists argue over its merits, the CPPA can be and is being applied to everything from marginal Internet sleaze to popular and high art. It helps legitimize efforts like the Focus on the Family campaign to prosecute mainstream bookstores for selling books of nude photography by Jock Sturges, or the attempt by Oklahoman fundamentalist Christians to have Volker Schlondorff's award-winning film The Tin Drum, based on the classic novel by Nobel laureate Gunter Grass, seized as child porn.

You're a child pornographer

Because key scenes in James Cameron's Titanic show a 17-year-old character played by 21-year-old Kate Winslet posing nude and having PG13 sex, the film is arguably child pornography under the law. Sexual situations involving a gay 15-year-old boy played by 18-year-old Charlie Hunnam could qualify the original British version of the TV series Queer as Folk for seizure by American law enforcement officials. (In Showtime's American remake of the acclaimed teleplay, the15-year-old's age has been raised to a less provocative but still risky 17.)

"The worst part of the CPPA," says David Greene of the First Amendment Project, "is its potential application to utterly nonrealistic representations such as cartoons and drawings. It calls into question the legality of every Renaissance painting with naked cherubs, bare-chested nymphs, or the unswaddled Baby Jesus."

In millennial America, where one end of the political spectrum is as eager to censor as the other, the CPPA may survive its journey to the highest court. "It's a difficult issue politically," says David Greene. "I would not be surprised if the Court punted on the main issues." In 1995, punting on the issues, the Supreme Court upheld without comment a lower court ruling in a Pennsylvania case where a student named Stephen Knox was found guilty of possession of kiddie porn, even though the video in question contained neither nudity nor sex. As First Amendment protections erode, the next step may be to assert the illegality of material depicting neither nudity, sex, nor actual children.