A law that could have potentially criminalized the making of movies like Academy Award-winner \American Beauty"" was struck down by the U.S. Supreme Court Tuesday.
The Child Pornography Protection Act of 1996, which expanded on the laws already banning pornography that depicts actual children involved in sexual conduct to include adult actors who are portrayed as under 18, was declared unconstitutional for its violation of First Amendment rights.
In voicing the opinion of the court's six justices who voted to strike down the law, Justice Anthony Kennedy said the act could be used against legitimate popular culture. Justices Sandra Day O'Connor and Antonin Scalia were accompanied by Chief Justice William Rehnquist in their dissenting votes.
""The CPPA prohibits speech despite its serious literary, artistic, political or scientific value,"" Justice Kennedy wrote. ""Teenagers engaging in sexual activity ... is a fact of modern society and has been a theme in art and literature throughout the ages.""
UW-Madison Professor Paul Boyer said he was puzzled by the court's decision to uphold the lower court ruling in favor of a pornography trade group, the Free Speech Coalition.
""I was a bit surprised, because this court is unpredictable and has a very strong conservative contingent which would tend to support legislation like this,"" he said.
O'Connor agreed, in part, with the majority opinion, but dissented on the basis that she disagreed on the issue of virtual child pornography, which involves completely computer-generated images of children, which the act also bans.
""Such images whet the appetites of child molesters,"" she said in her dissenting opinion. ""Of even more serious concern is the prospect that defendants indicted for the production, distribution or possession of actual child pornography may evade liability by claiming that the images attributed to them are, in fact, computer generated.""
The case did not deal with a third aspect of the law, which places penalties on altering real photos of children to make them appear in a sexual manner.
Boyer added that the case was not an uncommon situation in the American political system.
""It's a classic example of an issue that nearly everyone feels is a general problem, but the formation of the legislation addressing such problems must very carefully deal with First Amendment considerations,"" he said.
Legislators will have a laborious journey ahead if they wish to rewrite the law to make it more constitutionally sound, according to UW-Madison law Professor Gordon Baldwin.
""I think it would be difficult to reach the problem which they addressed, which was not real exploitation of children, but merely a technology problem,"" he said.
Even if Congress does pass a law that could make it pass the scrutiny of the high court, Boyer said it will be almost impossible to keep tabs on the millions of Web sites on the Internet, as well as other mediums for child pornography.
""The problem will become one of enforcement. Regulating the Internet is very difficult,"" he said.
