One consequence of the enhanced manipulability of photographs through digital technology has been the reopening of debate over whether and how child pornography should be excluded from the protection of the First Amendment.(357) With the help of such technology, images of children involved in sexually explicit conduct can be created from innocent images, or even without the involvement of an actual child at all.(358) Under existing First Amendment theory, as well as pre-1996 federal law, such images are constitutionally shielded.(359) But contemporary trends in law and society forebode that they ultimately will be/remain excluded from the protections of the First Amendment.(360) While there may be little of merit--artistic, scientific, or otherwise--in many if not most computer-generated images of naked children, there are legitimate purposes for their creation.(361) Further, if such images are prohibited, all digital technology would effectively be cast as a bogeyman, to be prohibited merely because it allows the expression of fantasy and because it creates evidentiary problems for prosecutors and courts. Such an ubiquitous outcome is clearly not desirable. In contrast to the response of law to the problems digital imaging poses for evidence, for child pornography the response has been swift--but it also has been misguided and injurious.

A. Child Pornography and the Law

The Court reasoned that a separate classification in First Amendment jurisprudence for child pornography was justified because, first, "the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child."(365) Second, the distribution of images of sexual activity by juveniles left behind a permanent record of the children's participation in that activity.(366) Third, closing the distribution network of child pornography was concluded necessary to stop the exploitation of children in the production of child pornography.(367) But, in contrast, the Court noted that material that does "not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection."(368)

The Court thus made clear that works that did not depict actual children remained within the protection of the First Amendment, at least so long as they did not fall outside its sphere for distinct reasons, such as obscenity. Indeed, the Court strongly suggested that the continued protection of such works was a constitutional necessity, in order to ensure that works of value to society were not swept away along with pure child pornography. A "simulation" would be remain an alternative means by which to depict children engaged in sexual conduct, the Court held, if the depiction had literary or artistic value.(369) The Court apparently was thinking primarily of youthful adults--"a person over the statutory age who perhaps looked younger could be utilized"--but it also noted the possibility of a pure "simulation."(370) It was on this basis only that the Court held that "[t]he value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct are exceedingly modest, if not de minimis."(371)

In the early 1980s, the Court's understanding of child pornography appears to have reflected that norm. In the decision below, in the New York Court of Appeals, the state government had argued that the law at issue in Ferber was constitutional because it would permit the use of adult "doubles" for works with artistic and literary value such as Lolita.(372) But in the years after, states and the federal government drafted increasingly strict child pornography laws. Congress, for example, joined the states that prohibited the distribution of images of minors in explicit conduct, even if not obscene, by the Child Pornography Prevention Act of 1984.(373) The law of most states as well as federal law now criminalizes not just the production and distribution but also possession of child pornography:(374) In Osborne v. Ohio,(375) the Supreme Court upheld such prohibitions. But again, the Court's judgment relied on the exploitation of actual children; the law at issue was premised on a legislative belief that it would put an end to a form of child abuse by putting an end to the market for images of that abuse.(376) The Court held the law constitutional "[g]iven the importance of the State's interest in protecting the victims of child pornography":(377) Again, child pornography was evil because it "permanently record[s] the victim's abuse."(378) But the Court did again take note of a secondary rationale, presented by the appellants, that state action was justified because pedophiles use child pornography to seduce other children.(379)

In recent years, however, the Supreme Court has proved unwilling to countenance any further expansion of the regulation of child pornography. In Jacobson v. United States,(380) the Court invalidated a federal child pornography conviction on entrapment grounds; the compelling interest in protecting children from the exploration of child pornography, the Court decided, did not justify the modification of an otherwise relevant principle of criminal procedure under the Constitution.(381) Further, in United States v. X-Citement Video, Inc.,(382) a 7-2 majority of the Court interpreted an amendment to the Protection of Children Against Sexual Exploitation Act of 1977 to require that in a child pornography prosecution the government must prove that a defendant had knowledge that the material at issue in the case actually was produced with the use of minors.(383)

Commentators have described these decisions as affirming the principle that, despite the expansion of laws to control child pornography, the existence of a real child has remained an essential element of any child pornography prosecution.(384) State courts have reinforced this position, ruling that existing state statutes do not encompass "materials that merely offer the illusion that actual children are involved. . . . [T]he child's participation in the act must be real."(385) The court quoted in the sentence above, for example, concluded that an Oregon law as drafted was in application "limited to media that, like other media listed in the statute--i.e., photographs, motion pictures, and videotapes--reproduce actual events involving children taking part in the acts being portrayed."(386)

Surprisingly, although the 1986 report of the commission organized by Attorney General Edwin Meese to investigate pornography was widely regarded as hostile to the First Amendment,(387) the report concluded that simulated child pornography was protected by the Constitution, at least to the extent it was not obscene,(388) even while setting out the justifications for the prohibition of child pornography created with the participation of actual children.(389) Like the Supreme Court before it, the Commission acknowledged that the "distinguishing characteristic" of child pornography was the fact that "actual children are photographed"(390)--a distinction proponents of the Act often ignore when citing to its report.(391) The Commission expanded upon Ferber, however, in concluding that the regulation of child pornography is strongly rooted in abuse prevention. The production of child pornography leaves behind a permanent record, and the act of creating that record is itself molestation, and is the objective of the law.(392)

The Commission's elucidation of the harms that justified the prohibition of child pornography did touch upon concerns that might also apply to simulated child pornography--but for the most part, the Commission limited its rationales so that the participation of actual children was requisite. For example, the harm of a permanent record lies in that it can follow a participant throughout life, causing humiliation and embarrassment.(393) The Commission noted that these harms are independent of the production.(394) If a simulation resembled a real child, similar humiliation and embarrassment could result. But the Commission described child pornography as a record of an actual act, not the falsification of one;(395) any humiliation and embarrassment appear premised on the revelation of a real event.(396) Similarly, the Commission noted that the remedy of prohibition was tied to the specific circumstances of the production of child pornography with actual children. In other contexts, harm to performers would not justify the prohibition of their work product instead of their underlying conduct. But the use of actual children is virtually always surreptitious; the targeting of images was justified in this case because they were more accessible to law enforcement.(397)

The Commission also addressed the use of child pornography to convince other children to participate in sex acts with adults, offered as a secondary rationale in Ferber(398) and later Osborne:(399) The Commission did conclude that child pornography not only is used to break down the inhibitions and resistance of children, but feeds the appetite of pedophiles.(400) But it also circumscribed the reach of this rationale. The Commission noted that sexually explicit materials depicting only adults are used for the same purpose, but "we do not take the phenomenon as sufficient to justify restrictions we would not otherwise endorse"(401) If one believes that secondary effects, standing alone, are sufficient to justify the prohibition of child pornography, there is no principled reason why one should not call for less "deviant" materials to be banned(402)--except that it would be virtually impossible to persuade the Supreme Court that such a radical extension of Ferber was necessary to serve a compelling government interest.(403)

A final rationale for the prohibition of child pornography explored by the Commission was that photographs are often an important, if not essential, form of evidence in child molestation prosecutions.(404) But because children are often difficult witnesses, the task is made much simpler if the photographs are the offense itself.(405) But this desire to facilitate the work of prosecutors is never said to justify prohibiting simulated images of children because they might mislead prosecutors, suggesting to them that an act of child molestation transpired when in fact the images were products only of the imagination: This final rationale is premised on the protection of children, not easing the burden of prosecutors for its own sake. Indeed, an essence of Constitution and Bill of Rights is the notion that the government should be required to work hard to prove its case.(406) The protests of certain commentators to the contrary, there has been no showing that the confusion, if any, produced by simulated child pornography has resulted in problems for the administration of justice anywhere near the magnitude of the problems that result from the difficulty of having a child testify in court.(407)

The historical protection of simulated child pornography has parallels in other areas of law. Since 1966, no work of written literature--simulations, if one will--ultimately has been upheld as obscene by the courts.(408) But no court has established a constitutional guarantee to protect simulations. The Supreme Court has ruled that potentially obscene text, published as a book, was not entitled to First Amendment protection merely because it had no pictorial content.(409) Cases have continued to be filed against literature and works in other mediums, such as Anthony Burgess' A Clockwork Orange, which was unsuccessfully prosecuted in 1973.(410) Indeed, one commentator has speculated that one motivation for the tightening of child pornography laws in the 1980s was a case in which, among other problems faced by the prosecution, was whether some of the images the defendant possessed were sketches of real children or simply illustrations,(411) although the changes enacted in the 1980s did not actually address simulations.

Given that, prior to the widespread availability of digital technology, realistic simulations were uncommon,(412) it is understandable that relatively little was written on the subject. The default assumption for commentators, as for the courts, appears to have been that works created without the participation of actual children were no threat and of no harm. One commentator noted that the evil that justified putting child pornography outside the First Amendment was the sexual exploitation of real children, and any statutory ban therefore must be limited to actual or photographically recorded child sex.(413) Thus, by definition, writings and imaginary drawings of children having sex were not child pornography.(414) Similarly, another set of commentators noted that their focus was visual works because they involved "actual conduct which directly harms a child. By contrast, child pornography in written form does not necessarily entail this harm."(415) Yet a further commentator proposed a theoretical distinction between "child erotica" and child pornography.(416) The latter encompasses photographs that are not sexually explicit and drawings and writings;(417) child pornography, which was and is still illegal, was a distinct subset because of its effect on the child portrayed.(418)

In the early 1990s, therefore, individuals using digital technology to create or alter images would have been on safe ground to assume that any images they created from their imagination, even if they would be culpable if created with the participation of actual children, were protected by the Constitution. It would be inconsistent for simulations to be allowed in one First Amendment context, such as obscenity, and not in another; further, commentators, when they had turned to simulations, were confident of their constitutionality. But there in fact has been long-running debate over if and how the same First Amendment standards should apply in every context.(419) Furthermore, child pornography always has been an outlier, difficult to square with general First Amendment principles.(420) Although ordinarily "[t]he first amendment assumes that the public may react wrongly to information, be antagonized, or even be duped or misled," when children are at stake, the usual and expected principles are often forgotten--and trampled.(421)

B. A Changing Paradigm

Consequently, the assumption of Ferber and its progeny, that adults and simulations that appear to be children can and must continue to be constitutionally protected, is under direct attack.(427) A sponsor of the Act, Senator Orrin Hatch (R-UT), noted that it did not create new or expanded restrictions or regulations regarding the Internet.(428) This may be literally true, but it misses the point; the Act is a broad-based attack against technology in general. Its restrictions extend beyond the Internet to digital imagery in the privacy of the home. Indeed, what Hatch and other sponsors have actually done is blend the harms of the exploitation of actual children with common fears about technology to create a bogeyman, regardless if digital imagery based on the facts presents a real danger, or, if so, if it should or can be regulated. Hatch claimed that: "It is impossible for any decent American not to be outraged by child pornography and the sexual exploitation of children. . . . While federal law has failed to keep pace with technology, the purveyors of child pornography have been right on line with it."(429)

Some of the Act's sponsors do appear to have acknowledged the potentially far-reaching implications of the Act. Senator Joseph R. Biden Jr. (D-DE) described his motivation as "because of advances in computer technology, child pornographers are getting around the law by using 'computer morphing.'"(430) In theory, at least, computers can be used to take the face of a child and put it on the body of an adult engaging in a sexually explicit act, or erase a child's bathing suit to create an explicit image.(431) "In other words, they are preying upon children without anyone ever knowing it."(432) But Biden also stated that he was "concerned that a provision in this bill which criminalizes the depiction of something that appears to be a minor engaging in sexually explicit conduct will not pass constitutional muster."(433) Nevertheless, he let the Act became law without any challenge to the provisions about which he expressed concern.(434) Biden merely proposed a narrow amendment, which would endure if the broader provisions of the Act were struck down, and it was not even enacted.(435)

To the surprise of many commentators, a federal District Court upheld the constitutionality of the Act in Free Speech Coalition v. Reno.(436) The plaintiffs had emphasized that the rationale for the prohibition of child pornography is the necessity of eliminating the market for such materials, in order to prevent harm to participating children's physical, psychological, and mental health.(437) They therefore alleged that the Act was unconstitutional because it swept "within its purview materials that involve no actual children and that traditionally and logically have never been considered to be child pornography."(438) But reaching a decision without trial, U.S. District Judge Samuel Conti upheld the Act, finding that its primary (and constitutional) purpose was to prevent the negative effects of sexual images of children rather than to prohibit the images themselves.

The statute, Conti held, was "passed in order to prevent the secondary effects of the child pornography industry, including the exploitation and degradation of children and the encouragement of pedophilia and molestation of children."(439) Citing the broad latitude granted by the U.S. Supreme Court to Congress and the states in regard to child pornography, Conti held that "even if no children are involved in the production of sexually explicit materials . . . the devastating secondary effect that such materials have on society and the well-being of children merits the regulation of such images."(440) Conti rejected the argument that prohibitions on child pornography can only be based on the harm caused to the minors used to produce it, noting that "Congress recognized that the dangers of child pornography are not limited to its effect on the children actually used in the pornography."(441) Therefore, Conti concluded, the Act's protection of children from the harms brought on by child pornography and the child pornography industry advanced a compelling governmental interest, sufficient to exempt the Act from the strictures of the First Amendment.(442)

Conti further noted that the Act, by broadly prohibiting the depiction of minors engaged in explicit sexual conduct, was not in violation of the First Amendment for being content-based, because the depiction were prohibited independent of their context.(443) Furthermore, content-neutral regulations are upheld under the First Amendment if they advance "important governmental interests unrelated to the suppression of free speech," and do not "burden substantially more speech than necessary to further those interests."(444) Conti held that the Act met these conditions.(445) In addition, alternative channels would remain open because "plaintiffs are free to communicate any substantive message they desire, through any medium they desire, as long as they are not depicting actual or computer-generated children engaged in sexually explicit conduct."(446)

Finally, Conti noted that the Act did not suffer from the flaw of vagueness: "Although there may be a degree of ambiguity in the phrase 'appears to be a minor' . . . any ambiguity . . . can be resolved by examining whether the work was marketed and advertised as child pornography."(447) The Act's "safe harbor"(448) was sufficient to ameliorate any lingering constitutional concerns, he concluded: "[A]s long as the person portrayed in the work is an adult, and the work is not marketed or advertised as child pornography and does not create the impression that it is child pornography," then the affirmative defense applies.(449)

The decision in Free Speech Coalition took many by surprise. Conti's protestations to the contrary, his ruling is in open conflict with Ferber. Ferber did not justify the prohibition of child pornography because of its effects on non-participants.(450) It has long been assumed that the interests of a real child must be at stake.(451) Even Frederick Schauer, a former member of the staunchly anti-pornography Meese Commission, for example, testified before Congress that computer-generated child pornography in general was "highly likely" to be deemed constitutional.(452) This is because Ferber depended on two prongs: past and future harms.(453) Simulated child pornography may lead to future harms, but its creation is harmless. "[T]o include drawings or computer-generated images of non-recognizable children, which is keyed to no justification that is recognized in existing law, is unconstitutional on the existing state of the law."(454)

Other commentators were not surprised. Dee Jepsen, President of "Enough is Enough!" had testified that all the Act did was "address child pornography from the perspective of the 1990's."(455) Because "[a] direct relationship exists between pornographic literature and the sexual molestation of young children," its prohibition is justified, no matter what its origins.(456) But even if technology has advanced in the 1990s, there is no more justification for a knee-jerk response than there is for a plodding response, as seen in the previous Part in the context of evidence. Jepsen's own comments demonstrate the flawed foundation on which the Act is built; he admitted that "[i]t is difficult to quantify 'cause and effect' as it relates to what actions mentally-recorded stimuli initiate or encourage. We must rely often upon 'antidotal' evidence."(457) Such practice cannot generate good law.

C. The Looking Glass

If an image is not a complete work of fiction, but an altered photograph in which a child is still recognizable, or an entirely original work made to resemble an actual child, then there is a strong argument that the image is susceptible to government regulation under current law and the Constitution. The possibility of the creation of such images has been a focus of many supporters of the Act. "Computer graphics software and morphing allow pornographers to alter the images of the faces and bodies of children so they appear to be engaged in explicit sexual acts even though the original images depicted completely unrelated activity."(462) Images of the heads of children, pulled from magazines and store catalogs where young children are used as models for the advertising of many benign products, can be combined with a pornographic picture of the adult body.(463) These children would be subject the same kind of life-long shame and embarrassment with which Ferber was concerned and in part relied.(464) The appearance of an image of a child in pornography is itself an emotional harm, they argue, through its invasiveness and suggestiveness.(465) Other threats commentators claim are real include extortion and blackmail,(466) and enhanced seductive effect if a child can be shown images of friends engaging in sex acts.(467)

But the fact that "the images of the faces of actual, recognizable children can be expropriated by pornographers and circulated in cyberspace"(468) is not proof that it is a problem of sufficient magnitude--or for that matter, any magnitude--worthy of attention.(469) Previously, although altered pictures might be deemed obscene, they did not constitute child pornography,(470) without strife, even though such images could be created by low-tech means.(471) Conspicuously lacking is any proof that computer-generated images are a problem any more severe,(472) or that they cannot be dealt with via existing law and doctrine, such as false light privacy.(473) The claims of proponents of the Act are conclusory, such as that an image alone makes a child vulnerable to sexual dependency.(474) The only example that has been given was described as crude and an obvious forgery--and Canadian.(475) Deputy Assistant Attorney General Kevin DiGregory testified that the Department of Justice, has not come across any pedophiles who have actually used the technology.(476) Furthermore, simulated child pornography that resembles or is based on actual images of real children again was not the subject of Ferber. That decision predicated the harm produced by images that are a "permanent record of the child's participation."(477) If there was no participation, there is arguably no more reason that such images should be prohibited than any other falsified images which produce shame and embarrassment should be prohibited.(478)

But the issue of simulations that resemble real children is largely a red herring. Despite support for the proposition in Ferber that such images cannot be prohibited, commentators largely appear to agree that they can,(479) and they may be regulatable on alternative grounds.(480) More significantly, however, is that the majority of debate--and constitutional questions--center around the creation of images that are entirely products of the imagination, with no anchor in reality. Again, current law is structured around the premise that an actual child to be harmed by the production of the image, or by its lingering presence because "[t]he child in the photograph is young forever."(481) The prohibition of child pornography is premised on the chain of effects that flow from the abuse inherent in its making; such images can be used for blackmail purposes,(482) and victims have been known to commit burglary to recover such images, for example.(483) Indeed, child pornography is sometimes simply equated with child molestation.(484) But if no actual child is involved in its production, that simply cannot be the case--unless one adopts the convoluted logic of commentators such as Catherine MacKinnon who argue--and in almost any other context but this would be and usually are derided for so doing(485)--that imagination is in fact reality.(486)

But in the child pornography context, the distinction between imagination and reality is commonly jettisoned.(487) Indeed, commentators record that child pornography legislation is largely political: "[I]f a law is passed in the name of children, it must be constitutional."(488) The penalties for creating hard-core child pornography are now so severe that almost none has been produced commercially in the United States since the 1970s.(489) But, as Hatch has done, a politician can condemn it with the comfortable knowledge that few will disagree; it is a scare tactic, like Communism and drug use.(490) "What may have begun as a legitimate concern for the well-being of children quickly turned into a 'moral panic' which swept the nation."(491) The Act's supporters, for example, assert that laws against child pornography must be extended because of "pedophiles' use of new technology"(492)--the actual nature of these images is seemingly irrelevant. Indeed, child pornography laws even prior to the era of digital technology already extended questionably far; a century after Lewis Carroll created photographs of naked children with their parents' permission, they are still prosecutable, despite the fact that no victim is now alive--if there ever was a proper "victim."(493)

The current state of the law indicates that new legislation is not necessary to deal with problems digital imaging may create in regard to child pornography; the refining of existing doctrines and procedures would be sufficient. As in the context of evidence, the potential problems are not new, but mere enhancements of existing ones. The primary problem of legal procedure raised as a justification by the Act by its supporters is the prospect that, upon examining a photograph, prosecutors may not be able to determine if it is of a real child, justifying the pursuit of criminal charges, or merely a simulation.(494) "[C]omputers can . . . be used to alter sexually explicit photographs, films, and videos in such a way as to make it virtually impossible for prosecutors to identify the individuals, or to prove that the offending material was produced using children."(495) Supporters such as Bruce A. Taylor, President and Chief Counsel of the National Law Center for Children and Families, therefore conclude that all such images should be prohibited: "If you can't tell the difference . . . there isn't any difference."(496)

But this is simply not true.(497) While there is precedent for remedial measures in cases of otherwise insurmountable prosecutorial barriers,(498) simulated child pornography is not such a case. While supporters of the Act may claim that technology can make such a good counterfeit that no one can tell the difference between a photograph and a computer-generated image,(499) experts in special effects disagree; the technology does not exist--at least, not yet. To a computer, it's the little things that are most confusing about humanity: e.g., the skin, its subtle sheen, and the complexity of pores.(500) "The more realistic it tries to get, the faker and faker it can tend to get."(501) Likewise, although DiGregory testified that "[a]ll that will be necessary will be an inexpensive computer, readily available software and a photograph of a neighbor's child shot while the child walked to school or waited for the bus,"(502) the reality is not so simple. It is true that image editing and morphing software, costing as little as $50 or $100, is available at virtually any computer store, or through mail-order catalogs.(503) But the high-powered software--and more importantly, the skill--required to create realistic images that can fool even experts have not been shown to be common.(504)

Furthermore, even today courts often must consider whether a photograph is an actual child. For example, even if an image is authentic, it may be difficult to determine if the person depicted is a minor.(505) The courts have found solutions other than excommunicating all images that could be of a minor, and other than inverting of the traditional notice of the burden of proof, sending innocents to jail to ensure the punishment of the guilty. Ordinarily, the trier of fact is trusted to determine the age of those persons depicted; no one, such as their photographer, need verify them.(506) A further solution is to call upon the expert testimony of pediatricians.(507) Commentators do urge caution in relying on such testimony,(508) but multiple states provide for it.(509) Indeed, expert testimony has been relied upon to determine not just the age of children but that real children are depicted, and not wax dummies.(510) If experts can make such determinations today, no principled distinction has been put forward as to why they could not do so for digital images.(511) Further, as discussed previously, if experts cannot distinguish whether an image is a forgery or not, commentators urge that no image should be accepted as evidence, not that all such images should be regarded as authentic.(512)

Proponents of the Act discount not just the competence of expert witnesses but of non-expert factfinders; juries are commonly entrusted to evaluate whether photographs are authentic, based on their personal perusal of them, in child pornography cases.(513) In United States v. Nolan, the court noted that "ordinary people in today's society are quite accustomed to seeing photographs and to distinguishing them from other forms of visual representations. We believe it to be within the range of ordinary competence for someone not a photography expert to determine that she is viewing a photograph rather than, say, an artistic reproduction"(514) It is true, however, that Nolan was decided prior to widespread digital imagery. The court held that "common sense tells us that considerable skill and expense would be required to make realistic composites of activities of these types from other sources, if indeed they can be made."(515) A "conglomeration of parts, body parts, would be very bizarre appearing, because of the differences in size, texture."(516) The court thus rejected any contention that images before it of children engaged in explicit sexual conduct could be computer-generated: "There is no evidence in the record that possibilities along these lines exist, much less that the costs of such technical means, if extant, are low enough to have been practicable for the manufacture of pornographic magazines like these."(517)

Today, little more than a decade later, the reasoning and conclusion of Nolan do appear quaint. Nolan, like Ferber, was decided in an era in which "we did not have the wizardry of the Internet and World Wide Web, there were no Pentium processors, it was before 'desktop publishing' reached every desk top, before we moved from the obviousness of 'Max Headroom' to the not-so-obvious 'Jurassic Park,' and before color copiers could be made to copy money so well that the U.S. Treasury was forced to redesign our currency."(518) But its essential conclusion endures: there is no need to cast digital imagery as a bogeyman. The advance of technology does not purge existing First Amendment interests, already addressed and shielded by the law. Again, although limited by the technology of its era, Ferber did explicitly address the possibility of computer simulations of children engaged in explicit sexual conduct, and held them to be constitutionally protected;(519) Ferber's foundation--rooted in the Constitution, not statute(520)--remains the elimination of the market for child pornography that requires the exploitation of real children for its production,(521) and not as some contend the protection of "imaginary ones conjured up in the minds of its viewers."(522)

Which is not to say that no change in the law may be necessary. Although courts, for example, recognized that child pornography stored in digital format were included in existing laws prohibiting the shipment of tangible pornography in interstate commerce,(523) it was determined prudent to amend such statutes to recognize the existence of computers.(524) Since 1988, federal child pornography laws in fact have addressed the transport of child pornography by computer.(525) But any changes in other federal child pornography laws should be tempered to real needs, not imagined perils. Child pornography simulated by computer has become an issue relatively suddenly.(526) But courts have evidenced a likewise ability to apply existing child pornography statutes on the digital frontier: "That pornographic images of children are scanned into a computer rather than pressed onto the pages of a magazine, or that the images are stored on a hard drive rather than in a shoebox, does not change the fact that a defendant possesses pornographic representations of actual children."(527) Nolan failed to demonstrate that an expert could not detect simulations, or even that an expert is necessary in a trial.(528) There simply has been no need demonstrated to ban all sexually-explicit images of children in order to catch actual child abusers; there is no reason to believe Taylor's claim that if a defendant can claim that images could have been simulated, a built-in reasonable doubt argument will exist for the defendant in and be able to shut down any and every child pornography prosecution.(529)

According to Taylor, if the government must prove beyond a reasonable doubt in an era of digital imagery that mailed photos, smuggled magazines or videos, and images transmitted via the Internet are depictions of an actual minor, actually engaging in the sex act portrayed, prosecutions will all but grind to a halt.(530) But this is a false peril. Courts hold in child pornography cases that it is not necessary to call a photography expert to negate a mere possibility of fakery, if no evidence is presented to support such a claim.(531) The burden to prove that photographs are in fact simulations lies with the defendant. Although the issue has not been definitively resolved, practice so far is that if a prosecutor concedes that he is unable to show that pornographic activity was engaged in by an actual child is to leave the issue for the factfinder, not to dismiss the case.(532) No claim that an image was altered and not of an actual child appears to have succeeded to date.(533) Indeed, the lone on-point case cited by the Act's supporters is United States v. Kimbrough,(534) the outcome of which works against any assertion that digital imagery is a threat requiring new legislation.(535) Further, if the burden of proof is to be shifted, it must be to aid judicial processes, not ban all simulated images.(536)

Indeed, even data on the amount of child pornography in circulation and the reach of its distribution networks is speculative, an unconvincing basis for draconian legislation. What commercial distribution networks still existed by the mid-1980s were clandestine.(537) The rise of the Internet does mean that what then was the product of small-scale production by amateurs can now obtain worldwide distribution,(538) virtually instantaneously.(539) DiGregory has stated that computers have reinvigorated distribution to an audience "the size of which pedophiles could not have envisioned 10 or 20 years ago."(540) But specific data is absent--and there is good reason not to trust data about online pornography provided by the Department of Justice.(541) Further, claims of supporters of the Act are--perhaps even intentionally--confusing. Barry Crimmins claims that the current situation reflects a simple matter of supply and demand: "The increased demand for child pornography directly translates into an increased number of sexually abused children."(542) But Crimmins does not explain the origin of the demand, nor why the supply will be of real children. Others contend that "[a]n epidemic of child abuse going to result from this. People will say, 'I've thought about it, but I've never thought about doing it."(543) But again, the claim lacks a proper foundation; it assumes that pornography is addictive, and ultimately will escalate to "acting out."(544) Indeed, one should note that some researchers find that many normal heterosexual men experience a sexual reaction to minor females, and suggest that a desire for adolescents should be considered normative as a scientific matter, if legally deviant--and rarely acted upon, despite allegedly being widespread.(545)

Furthermore, even if simulated child pornography created through digital technology were to be acknowledged as a potentially disruptive element for legal proceedings, because it cannot be distinguished from images of real children, it also remains to be shown that the magnitude of the effects of this simulated child pornography, in theory or practice, would justify the prohibition. Supporters of the Act rely upon the secondary effects of child pornography, as a "training manual."(546) The Act is said to protect not children who are participants in the production of child pornography, but rather victims of secondary effects.(547) In Free Speech Coalition, the government argued that virtual pornography is used to whet the sexual appetites of pedophiles who then act out their fantasies with real children,(548) and recruit victims with the images.(549) Seduction thus is equated with production: "[T]he two incite the same reaction in pedophiles and thus pose comparable threats to children."(550) But it is manifestly not true that simulations are as dangerous as real abuse of children.(551) Again, a MacKinnonesque fallacy is uniquely tolerated in the context of child pornography.(552) Simulations are "not even close to what the Court was imagining when it talked about materials being an 'integral part' of the illegal activity."(553) Despite what supporters of the Act repeatedly may claim,(554) Ferber was not premised on harm to the viewers of child pornography.(555) Again, implicit in Ferber were real children: The decision noted that "a State's interest in 'safeguarding the physical and psychological well-being of a minor' is 'compelling.'"(556) The dictum in cases such as Osborne positing alternative grounds are an extremely weak foundation for regulation.(557)

Furthermore, the government carries the burden of doing more than just positing the existence of a disease to be cured in a case if speech is involved.(558) Except in the contexts of broadcasting and commercial advertising, no modern court has held moral and aesthetic disapproval alone to be a sufficient basis for the regulation of speech.(559) Similarly, anticipatory criminal offenses typically require proof of intent to use materials in a criminal act, such as for burglar's tools.(560) This is exactly the sort of evidence that the government in the past has failed to produce in this context.(561) Little evidence exists indicating the impact child pornography has on its possessor, much less a cause-and-effect relation.(562)

Child pornography is prohibited because it is indicative of, not a cause, of actual abuse. The Meese Commission noted that child pornography is distinct--and its prohibition justified--specifically because "a great deal of this trade involves photographs taken by child abusers themselves, and then either kept or informally distributed to other child abusers."(563) Supporters of the Act argue that the link between the perusal of child pornography and child molestation is well documented, and should itself justify legislative action.(564) Victor Cline testified that an overwhelming majority of pedophiles use child pornography to stimulate their sexual appetites and act out against children.(565) Many studies allegedly find a link between consumers of child pornography and child abusers.(566) But these conclusions are not cognizable by law based on Ferber--nor are they universally ratified. The Meese Commission, for example, recorded that the desire to have a collection of child pornography was a common, but not universal, characteristic of pedophiles.(567) Other studies find that pedophiles are usually not attracted by child pornography.(568) Studies of men incarcerated for sex crimes against children have found that they had little exposure to pornography:(569) Most sexual contacts were initiated as a result of proximity, opportunity, and convenience.(570) In sum, in the absence of clear evidence, the argument that by providing a virtual substitute simulated child pornography would reduce actual incidents of child abuse is as compelling as any arguments for its prohibition as an instigator.(571)

Further, even if simulated images do instigate some conduct, censorship is still not justified. A principle plank of the First Amendment is that an idea should not be proscribed because it has been successfully communicated, even if it is repugnant.(572) Factors such as that child pornography may inspire pedophiles to act have been considered and rejected by the Supreme Court in the past, notes Eric Freedman, a Hofstra University Law School professor who signed a letter of protest against the bill.(573) In Brandenburg v. Ohio,(574) the Supreme Court rejected the notion that the government could ban works that did not directly incite people to commit an illegal act.(575) That same year, in Stanley v. Georgia,(576) Justice Thurgood Marshall wrote for the Court that trying to "protect the individual's mind from the effects of obscenity" may be tantamount to asserting "that the state has the right to control the content of a person's thoughts."(577) Banning works because of what they might inspire others to do, even if that would be the abuse of a child, "is to reduce the level of the First Amendment to the level of the most perverted criminal among us."(578) There has been no evidence presented that if simulated child pornography exists, so necessarily will seduction and victims.(579)

But both Brandenburg and Stanley predate Ferber; and some commentators argue that Ferber therefore was intended to exempted child pornography from their requirements.(580) There is no clear judicial statement on the subject, but based on common sense this would appear to be another example of what can happen when children are held up as in need of protection: the reasoning applied in other disputes over the reach of the First Amendment mysteriously vanishes.(581) It is difficult to deny that images can influence viewers, even if one does not go so far as to say that "[i]mages feed our minds and hearts."(582) But the influence the supporters of the Act attribute to images is hardly credible. In 1995, Calvin Klein fell under intense criticism for a series of suggestive ads featuring young-looking models.(583) Certainly, they had an effect, given the uproar.(584) But few asserted that they would actually lead to the abuse of children.(585) Most commentators found them merely offensive at most: "To even suggest that an advertising with fully clothed people in them, whether or not they're minors, amounts to child sexual abuse is an insult--it trivializes the very serious crime of child sexual abuse.(586) Ultimately, no charges were filed because the models were of legal age.(587) But if the ads were displayed today, under the Act, Calvin Klein could be guilty of the production of child pornography, depending on who decides if the images were marketed as culpable child pornography.(588) The chilling effect of child pornography hysteria is clear--"if you use your computer to generate a work of art that has some nudes in it, you better put gray hair on your nudes."(589)

Indeed, the fact that gray hair could be a solution indicates the fundamental flaw in the reasoning of supporters of the Act--and why it threatens digital technology in general. If "[t]he real and the apparent become and are equally dangerous because both have the same incitement effect on the pedophile and the same seductive effect on a child victim"(590) than all pornography should be banned, because adult pornography can be and/or is for the same purposes as child pornography.(591) Cline, for example, testified that some of the pornography pedophiles accumulate is of females fully developed anatomically but made to look young and immature;(592) what matters is that they are perceived as minors by the psyche.(593) Any kind of pornography, he asserted, can be an incitement to a sexual predator.(594) But supporters of the Act do not take their reasoning to its logical conclusion, because shorn of the rationale of protecting children, it would be politically unpalatable.(595) Indeed, although some supporters of the Act have conceded that it does not apply to cartoons, drawings, or other representations which are obviously not real children,(596) the Act itself does not so elucidate.(597)

The true specter therefore is not child pornography, but the reasoning of the supporters of the Act, political opportunists who play off existing fears in order to pursue their agenda of repression. Already, by the Child Pornography Prevention Act of 1996 they have created what is in effect a thought crime, premised on secondary effects: "We believe what you created on your computer appears to be a minor and we don't approve of that, therefore we're going to prosecute you."(598) The scope of censorship premised on secondary effects is potentially unlimited.(599) Secondary effects are slippery things--consider the case of Traci Lords, who appeared to be an adult when she appeared in pornography, although she was in fact a minor. If child pornography laws are to be premised on secondary effects, why should her films be illegal, if few but her mother could tell that she was underage?(600) Or, alternatively, why should the use of "young looking" adults be distinguished, if they are as much a simulation as a computer generated image?(601) The Act itself provides no limits on secondary effects(602)--a contrast to a core message of the Supreme Court's decision in Reno v. ACLU, that a law premised on the well-being of children was yet limited to regulating primary effects.(603) The vagaries of politics is by far too thin a shield for a still-developing technology. Already too much has been swept away by the Act--but if the reasoning of Free Speech Coalition were to become pervasive, so would a vast stretch of the digital domain, all the good potential along with the bad.(604)

D. The Lessons of Hysteria

Many works of indubitable societal value--and many that were once or remain controversial--fall within the auspices of the Act, protected only by the thin veil of prosecutorial discretion. Films such as Kids and adaptations of Vladimir Nabokov's Lolita are examples of well-known--and contentiously-debated--movies in which apparent minors engage in explicit sexual conduct.(611) But other movies which contain scenes in which teenagers or women of unclear ages but who may be construed as minors engage in sexual activity include Animal House, A Clockwork Orange, and The Last Picture Show;(612) Elizabeth Taylor's Cleopatra, Midnight Cowboy, and The Prime of Miss Jean Brodie;(613) and Fast Times at Ridgemont High and The People vs. Larry Flynt.(614) Further, given that only a simulation is required, films are not the only possible targets. The iconic advertisement for