Copyright (c) 2005 Rutgers Computer and Technology Law Journal
Rutgers Computer and Technology Law Journal
2005
31 Rutgers Computer & Tech. L.J. 406
LENGTH: 11459 words
NOTE AND COMMENT: MUST THE CHILDREN BE SACRIFICED: THE TENSION
BETWEEN EMERGING IMAGING TECHNOLOGY, FREE SPEECH AND PROTECTING
CHILDREN
NAME: Richard Bernstein*
BIO:
* Candidate for J.D., May 2005, Rutgers School of Law - Newark.
SUMMARY:
... This Note discusses the tension between the First Amendment of the United States
Constitution (ratified over two hundred years ago), modern technologies, and the technologies'
impact on statutory prohibitions against child pornography. ... This Note is concerned primarily
with the collision of the First Amendment, statutory prohibitions against child pornography, and
technology. ... The Senate found that new computer technologies allowed fake visual depictions
to be made of child pornography that were indistinguishable from actual child pornography
("digital child pornography"). ... The Senate found these digitally created and morphed images
worthy of regulation and prohibition for several reasons, including: 1) morphed or digital
pornography could be used to seduce real children into sexual activity; 2) morphed or digital
pornography could be "used by pedophiles and child sexual abusers to stimulate and whet their
own sexual appetites"; 3) morphed and digital images would make the enforcement of child
pornography laws very difficult because law enforcement personnel would be unable to
distinguish between fake/altered images and real images of child pornography; and 4) morphed
and digital images are used in trade for real images of child pornography, thereby supporting the
marketplace for actual child pornography. ... However, in any form of morphed pornography
there is a clear harm to children, harm akin to that found in Ferber and Osborne. ...
HIGHLIGHT:
"If we don't believe in freedom of expression for people we despise, we don't believe in it at all."
n1
TEXT:
[*406]
I. Introduction
This Note discusses the tension between the First Amendment of the United States Constitution
(ratified over two hundred years ago), modern technologies, and the technologies' impact on
statutory prohibitions against child pornography. This Note explores the constitutionality of two
recently enacted federal statutes: 1) the Child Pornography Prevention Act of 1996 (the "1996
Act"); n2 and 2) the Prosecutorial Remedies and Other Tools to end the Exploitation of Children
Today Act of 2003 (the "PROTECT Act"), n3 which seek to regulate digitally created n4 and
morphed n5 images of child pornography. n6 Part II of this Note [*407] provides a background
of the technologies involved, and Part III provides a history of the general statutory prohibitions
against child pornography. Part IV discusses the case law history of pornography in general and
child pornography in particular. Parts V and VI consider whether morphed and digital
technologies can be constitutionally regulated to prevent child pornography. n7
The Constitution's First Amendment provides that "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances." n8 The First Amendment's ratification occurred when
printing and photographic technologies were substantially primitive relative to current
technologies. n9 In voting to approve the First Amendment, the ratifiers had no rational
conception of how technology would change and how the First Amendment would affect the
ability to digitally create and manipulate words and images. This Note addresses whether a
legislature can prohibit the creation of either completely digital images or real images that are
manipulated by computers that depict child pornography without running afoul of the First
Amendment, which was ratified in a much different technological era.
[*408]
II. Background of the Technologies
Digital imaging's history starts over 300 centuries ago when Neanderthal man drew a picture of a
bull on the walls of a cave. n10 The bull was drawn with multiple legs to give the bull an
animated representation. n11 Digital imaging's modern catalyst is the Walt Disney Company,
which in 1928 created the first animated film, Steamboat Willie. n12 This film essentially relied
on analog n13 technology in which thousands of images, hand-drawn on clear celluloid material,
were flipped rapidly in front of a camera to produce an illusion of movement. n14
In 1951, the first videotape recorder captured live images from a television. n15 This emerging
technology could convert visual, live images into electrical impulses and archive those electronic
impulses onto magnetic tape for subsequent retrieval. n16 In the 1960s, the National Aeronautics
and Space Administration (NASA) developed technology allowing the transmission of
computerized and enhanced digital images to Earth from a lunar space probe. n17 In 1981, the
Sony Corporation marketed their Mavica digital still video camera, the first consumer digital
video device. n18
The modern age of personal computing permits individuals to [*409] manipulate and store
digital images in practically any way they desire. n19 A popular digital image manipulation
software program, Adobe Photoshop, is available to anyone with a computer for $ 99. n20 For
example, with Adobe Photoshop, an amateur computer user can digitally manipulate a family
photograph to remove people who appear in the picture or even add people or individual
anatomical parts. n21
Visual images can be imported on a computer either by the use of a digital camera or digital
video recorder. n22 Additionally, analog images can be scanned into a computer (and converted to
digital images) or digital images can be imported on a magnetic disk or simply as a file over the
Internet. n23 Alternatively, lifelike images can be created entirely via computer. n24
Computer generated images of people have become so lifelike that there is a beauty contest
devoted to representations of female computer images. n25 An article on the CNN web site
contains a [*410] picture of a woman named Kaya, who looks entirely lifelike, but is really a
Brazilian artist's digital creation. n26
Technology now allows for two different methods of image production. The first is a virtual
image that is produced using entirely fictitious computer generated features as demonstrated by
Kaya, the digital woman. n27 The second method is a morphed image that starts with a traditional
image and manipulates it by switching or adding features to a picture. An amateur can easily do
this with Adobe Photoshop n28 digital manipulation software on a home computer. n29 Celebrities
Alyssa Milano and Nancy Kerrigan commenced legal action when their heads were morphed by
use of digital imaging manipulation onto pictures of nude women and placed on commercial
Internet sites to be gawked at by voyeurs. n30
iii. History of Statutory Prohibitions Against Child Pornography
This Note is concerned primarily with the collision of the First Amendment, statutory
prohibitions against child pornography, and technology. A brief history of obscenity laws is
helpful to understanding the current legislative posture regarding morphed and digital child
pornography.
Congress enacted the first federal statute containing specific prohibitions against child
pornography, the Protection of Children Against Sexual Exploitation Act of 1977 ("1977 Act").
n31
The 1977 Act made it a crime, punishable by a maximum fine of $ 15,000 or fifteen years in
jail, for anyone to induce a minor to engage in sexually explicit conduct for the commercial
purposes of producing any "visual or print medium." n32 Moreover, the 1977 Act [*411]
criminalized the distribution of these offending materials. n33
Congress subsequently passed the Child Protection Act of 1984 ("1984 Act"). n34 This legislation
was a direct response to a United States Supreme Court case, New York v. Ferber, n35 which
upheld the constitutionality of a New York State statute that prohibited child pornography even if
the depictions contained within the visual or print medium were not obscene. n36 The 1984 Act
eliminated the requirement that the image be obscene, and raised the age of minority from
sixteen to eighteen years old. n37
In 1986, then United States Attorney General, Edwin Meese, III, n38 released a report concerning
pornography entitled "Attorney General's Commission on Pornography: Suggestions for Citizen
and Community Action and Corporate Responsibility." n39 In direct legislative response to the
Attorney General's report, Congress enacted a statute requiring producers of pornographic films
to create and maintain records of the identities and ages of all performers to aid law enforcement
in combating child pornography. n40 Currently, most adult websites display notices and
disclaimers on their home page stating that their website complies with this statute. n41
[*412] In another direct legislative response to a United States Supreme Court decision,
Osborne v. Ohio, n42 Congress passed the Child Protection Restoration and Penalties
Enhancement Act of 1990 ("1990 Act"). n43 The 1990 Act made the possession of "3 or more
books, magazines, periodicals, films, video tapes, or other matter which contain any visual
depiction ... of a minor engaging in sexually explicit conduct" a crime punishable by
incarceration of up to fifteen years. n44 The 1990 Act specifically excluded as a punishable
offense the possession of materials containing words and not visual depictions. n45
The 1977, 1984, and 1990 Acts all involved obscenity prohibitions related to real children. n46 In
1996, the United States Senate held hearings on the reformation of obscenity laws in light of new
technology. n47 Their findings resulted in the passage of the 1996 Act. n48 The Senate found that
new computer technologies allowed fake visual depictions to be made of child pornography that
were indistinguishable from actual child pornography ("digital child pornography"). n49
Additionally, the Senate found that images of real children, even in non-pornographic settings,
could be altered so that it appeared that the children were engaged in sexual acts ("morphed
pornography"). n50
The Senate found these digitally created and morphed images worthy of regulation and
prohibition for several reasons, including: 1) morphed or digital pornography could be used to
seduce real children into sexual activity; 2) morphed or digital pornography [*413] could be
"used by pedophiles and child sexual abusers to stimulate and whet their own sexual appetites";
3) morphed and digital images would make the enforcement of child pornography laws very
difficult because law enforcement personnel would be unable to distinguish between fake/altered
images and real images of child pornography; and 4) morphed and digital images are used in
trade for real images of child pornography, thereby supporting the marketplace for actual child
pornography. n51
In light of these findings, Congress passed the 1996 Act, which prohibited child pornography
where "such visual depiction is, or appears to be, of a minor engaging in sexually explicit
conduct" n52 and "has been created, adapted, or modified to appear n53 that an identifiable minor
is engaging in sexually explicit conduct." n54 These new provisions effectively prohibited both
morphed and digital images of child pornography under threat of steep jail sentences of up to ten
years for possession and thirty years for distribution. n55
The 1996 Act's provisions prohibiting digital pornography were effectively held to be
unconstitutional in the United States Supreme Court decision n56 Ashcroft v. The Free Speech
Coalition. n57 The day the Supreme Court announced the Free Speech Coalition decision, Senator
Orrin G. Hatch, a former Mormon Bishop and current Utah Senator, n58 issued a press release n59
stating his disappointment with [*414] the Court's decision. n60 Senator Hatch further stated that
he would "craft new legislation" to reverse the Court's decision in Free Speech Coalition. n61
Congress eventually passed the PROTECT Act. n62 The PROTECT Act deleted the 1996 Act's
problematic "is, or appears to be, of a minor" language and substituted it with "is, or is
indistinguishable n63 from ... a minor." n64
Currently, federal statutes prohibit the following with respect to child pornography: 1) visual
depictions, even if they are not obscene; n65 2) the manner in which pornography is produced, in
that records must be kept of the identities and ages of all participants; n66 3) mere possession; n67
4) morphed child pornography by way of the 1996 Act; n68 and 5) digital child pornography by
way of the PROTECT Act. n69
IV. History of Case Law Involving Pornography
A. Definition of Obscenity
The United States Supreme Court has long battled the competing and contentious values between
the First Amendment's free speech [*415] provisions and the government's need to regulate
obscene materials, specifically child pornography. n70 The tension between these competing
values has been very difficult to judicially placate.
The Court has long recognized, as held in the 1942 case Chaplinsky v. New Hampshire, that
"free speech is not absolute at all times and under all circumstances." n71 The Chaplinsky Court
stated in dictum that "lewd and obscene" speech may not necessarily enjoy First Amendment
protection. n72
It took the Court fifteen years after Chaplinsky to specifically decide if obscene materials were
protected by the First Amendment. n73 The Court found in Roth v. United States that the First
Amendment did not protect obscene materials. n74 The Roth holding begs the bigger and more
elusive question: What images are obscene?
In Roth, the Court determined that obscenity meant "whether to the average person, applying
contemporary community standards, the dominant theme of the material taken as a whole
appealed to [the] prurient n75 interest." n76 This obscenity definition was troubling, [*416] and
did little to clarify this area of law; the Court spent the next sixteen years unsatisfactorily trying
to utilize this definition. n77 The most candid expression of the Court's exasperation in developing
a workable obscenity definition came from the words of Justice Stewart's concurrence in
Jacobellis v. Ohio n78 where he wrote, in an oft-quoted statement, that while he may not be ever
able to intelligibly define obscenity, "I know it when I see it ... ." n79
In 1973, a majority of the Court in Miller v. California refined the Roth definition of obscenity,
n80
ruling that an image is obscene and not worthy of First Amendment protection based on the
following:
(a) whether "the average person, applying contemporary community standards" would find that
the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or
describes, in a patently offensive way, sexual conduct specifically defined by the applicable state
law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or
scientific value. n81
B. Definition of Obscenity as it Relates to Actual Children
The Court's view of mere possession of pornographic materials depends on whether the images
are simply obscene or if the images contain child pornography. In a 1969 case, the Court held
that mere private possession of obscene materials by an adult may not [*417] be made criminal.
n82
The Court reasoned that "if the First Amendment means anything, it means that a State has no
business telling a man, sitting alone in his own house, what books he may read or what films he
may watch." n83 However, the Court felt the interests of children outweighed any First
Amendment right relating to the possession of child pornography. n84 In Osborne, the Court held
that the reason to ban the mere possession of child pornography was to "protect the victims of
child pornography [and] to destroy a market for the exploitative use of children." n85
The Court's enlightened approach in favoring child protection over First Amendment free speech
rights is exemplified in New York v. Ferber. n86 In Ferber, the Court was asked to uphold a New
York State statute banning the distribution of child pornographic images, even if those images
were not, pursuant to Miller, n87 obscene. n88 The particular images under review were of young
boys masturbating. n89 These images, if depicting adult males, would not have been obscene
under New York State law. n90
The Ferber Court held that "the prevention of sexual exploitation and abuse of children
constitutes a government objective of surpassing importance." n91 Harm comes to children in the
production, distribution and continued existence of the pornographic images. n92 The Court
noted, "the use of children as subjects of pornographic materials is harmful to the physiological,
[*418] emotional, and mental health of the child." n93 Additionally, the images are a permanent
record of the physiological and emotional harm done to the child, which "is exacerbated by their
circulation." n94
The Ferber opinion stated that public policy demands that children not be exploited by
production of these pornographic images and that consideration alone overrides any First
Amendment concerns. n95 The Ferber court found additional justification for their holding in that:
1) the distribution of child pornography is related to sexual abuse of children; n96 2) mere
commerce in child pornography perpetuates an economic incentive to continue the production of
child pornography; n97 and 3) there is no redeeming value in child pornography - it is unworthy
of protection. n98
C. Definition of Obscenity as It Relates to Digital or Morphed Child Pornography
A variety of plaintiffs, including: The Free Speech Coalition; n99 a publisher of books dealing
with nudism; and individual erotic artists and photographers, commenced a pre-enforcement
challenge n100 to the 1996 Act in federal district court. n101 The plaintiffs collectively argued that
the 1996 Act prohibited constitutionally protected speech, was impermissibly vague and [*419]
overbroad, and constituted objectionable "content-specific regulations and prior restraints on free
speech." n102 The district court n103 decided the case on cross motions for summary judgment,
holding that the 1996 Act "met constitutional standards and was therefore constitutional as
written." n104
The plaintiffs appealed the district court's decision to the United States Court of Appeals for the
Ninth Circuit ("Ninth Circuit"). n105 In a de novo review of the district court's ruling, the Ninth
Circuit reversed the district court, holding that "criminalizing all visual depictions" that did not
involve real children ran afoul of the First Amendment. n106 Judge Ferguson authored a spirited
dissent, finding that the legislature had provided sufficient evidence of digital pornography's
harm to children in general, as opposed to the specific child involved in the production of the
pornographic material, and that the 1996 Act's language was not substantially overbroad or
vague. n107 The Ninth Circuit denied an en banc rehearing. n108
In January 2001, the United States Supreme Court granted the government's petition n109 for
certiorari. n110 Over twelve amicus curiae briefs were filed in this vigorously contested litigation,
including briefs from: the National Center for Missing & Exploited Children (in support of the
government); n111 a coalition of thirty- [*420] seven states and territories; n112 and the American
Civil Liberties Union (in support of the Free Speech Coalition). n113 In a 6-3 decision, the
Supreme Court struck down the prohibitions against digital pornography contained in the 1996
Act. n114 The Free Speech Coalition opinion dealt only with the constitutionality of digital
pornography; the Coalition did not challenge morphed pornography, and the Court did not
consider it." n115 However, the Court stated in dictum that morphed pornography might implicate
the interests of real children and perhaps could be prohibited by the 1996 Act. n116
In Free Speech Coalition, the Court stated its general rule that pornography can be banned only if
it is obscene under Miller, n117 but that under Ferber, n118 all child pornography can be
constitutionally outlawed. n119 Here, though, the Court was asked to uphold the 1996 Act, which
prohibited computer generated images that "[were], or appeared to be, of a minor engaging in
sexually explicit conduct." n120 The Court postulated that while its goal was the prohibition of
digital pornography, the new law also potentially banned a "Renaissance painting depicting a
scene from classical mythology" or perhaps a Hollywood movie using a performer who
"appeared to be" a child. n121
[*421] While acknowledging the legislative rationale for a law that did not immediately
implicate the interest of real children, n122 the Court nevertheless held that the government's
reliance on Ferber's heightened standard of scrutiny for child pornography was misplaced. In
Ferber, the danger to children was real since actual children were being harmed in the production
of the pornography. n123 However, in Free Speech Coalition, there was no harm to actual children
as the pornographic images were fictitious. n124 Moreover, the potential harm to real children was
only speculative and there was only an "unquantified potential for subsequent criminal acts." n125
Indeed, in the Ferber decision, the Court speculated that virtual or substitute images may be an
appropriate alternative when pieces of artistic work need an actor or actress who appears to be
young. n126
The Court rejected the government's position that the 1996 Act must stand because digital
pornography was used by pedophiles to seduce children. n127 The Court noted that there were
many other items that seduce children, n128 but that could not be banned simply because the
objects could be used in a nefarious fashion. n129 Thus, to suppress speech, any ban must be
narrowly drawn so as not to prohibit conduct or speech that is otherwise not subject to
restriction. n130
The Court also rejected the government's argument that digital [*422] pornography "whets the
appetites of pedophiles," n131 noting American jurisprudence does not uphold regulations seeking
to control a person's thoughts as opposed to their actions. n132 Likewise, the Court rejected the
petitioner's argument that digital pornography promoted economic commerce in child
pornography. n133 This argument was rejected as being nonsensical. n134 If digital pornography
were truly indistinguishable, then child pornographers would not use real children and risk the
severe punishments that attach to child pornography. Instead, child pornographers would only
use digital pornography, causing the market for real child pornography to disappear and the
attendant harm to children to be eliminated. n135 Finally, the Court rejected the argument that
digital pornography made it difficult for law enforcement authorities to prosecute those who use
real children in pornographic images. n136 The Court noted that the Constitution required that the
"possible harm to society in permitting some unprotected speech to go unpunished was
outweighed by the possibility that protected speech of others might be muted." n137 It was the
government's burden to prove the particular speech was illegal, not the burden of the "accused to
prove the speech was lawful." n138 Thus, the 1996 Act, as written, impermissibly shifted the
burden of proof. n139
In dissent, Chief Justice Rehnquist and Justice Scalia found the 1996 Act constitutional as
written. n140 They argued that the statute's definition of "sexually explicit conduct" n141 would
limit the [*423] applicability of the 1996 Act to the odious Ferber n142 conduct, which was void
of merit and unworthy of constitutional protection. n143 The dissent further argued that the need
for child pornography laws was compelling and a narrow reading of the 1996 Act was "not
offensive to the First Amendment." n144
D. Summary of the Current State of the Law for Child Pornography
In the immediate aftermath of Free Speech Coalition, Senator Hatch and his fellow legislators
enacted the PROTECT Act. n145 Currently, morphed pornography n146 is banned by the
provisions of the 1996 Act and digital pornography is prohibited by the PROTECT Act. n147
V. Are the Prohibitions Against Morphed Pornography as Contained in the 1996 Act
Constitutional?
Adjudication of the constitutionality of prohibitions against morphed pornography has not
occurred in any United States federal court. In Free Speech Coalition, the respondents did not
challenge the morphed pornography provisions of the 1996 Act. n148 Accordingly, the Court did
not consider the issue. n149 However, had the Court considered the issue, or if it is considered in
the future, they would likely find that the 1996 Act's provisions could constitutionally prohibit
morphed pornography.
Morphed child pornography can conceivably be accomplished in a number of ways. n150 The first
way is digitally adding anatomical [*424] features to an otherwise innocuous existing image of
a child. For example, a typical picture of a father and daughter hugging could be perversely
altered to show a sexual act. The second method is to take a posed picture of a child and,
digitally, add anatomical features or remove clothing. n151 The third and fourth ways are to take a
pornographic image of a child and remove any identifying features (such as digitally altering the
face) or taking a pornographic image of an adult and swapping the face with that of a minor.
In Free Speech Coalition, the Court found that, in digital imaging, there was no actual harm to
real children. n152 However, in any form of morphed pornography there is a clear harm to
children, harm akin to that found in Ferber and Osborne. n153 In morphed pornography images,
where a child is innocuously posed with the intent of later digitally altering the image to make it
pornographic, the child model is still under the direction of a lecherous photographer or
videographer. The Ferber Court found that process to be harmful to the well being of children.
n154
Even in situations of morphed pornographic, where child and photographer are never in
contact, a morphed, digitally altered picture would still exist. This Ferber-type "permanent
record" of pornography is [*425] equally as harmful to a child's welfare and is further
exacerbated by the continued circulation of the offending images over traditional print media and
the Internet. n155
Moreover, the morphed pornographic images lead to sexual abuse of children, provide economic
incentive to continue child pornography, and have no redeeming social value. n156 Since there is
harm to a child based on the above factors, the Court should have no qualms about finding the
1996 Act's prohibitions against morphed pornography constitutional. The harm that the 1996 Act
sought to prevent outweighed the First Amendment's guarantees, and the legislation was
narrowly tailored to achieve that end.
VI. Are the Prohibitions Against Digital Pornography as Contained in the PROTECT Act
Constitutional?
When the Court found the prohibition against digital pornography to be unconstitutional, n157
Congress immediately passed the PROTECT Act, which removed the problematic "is, or appears
to be, of a minor" language regarding digital pornography, and substituted it with "is, or is
indistinguishable n158 from ... a minor." n159 The PROTECT Act sought to mollify the Court's
concerns that the prohibitions against digital pornography were overbroad and covered
constitutionally protected speech.
The "indistinguishable from" language of the PROTECT Act is more narrowly tailored from a
constitutional point of view than the "is, or appears to be, of a minor" language of the 1996 Act.
However, the "indistinguishable from" language could be found to be constitutionally offensive.
The Court would likely strike down the statute once again as being overly broad.
The new "indistinguishable from" terminology goes a long way [*426] towards eliminating a
whole group of activity that clearly does not harm children, but would nevertheless subject a
person to criminal prosecution for child pornography. The new terminology explicitly excludes
from its definition those images that are "drawings, cartoons, sculptures, or paintings." n160 For
example, if a clearly animated film were produced that contained scenes of child pornography,
such conduct, even though morally repulsive to the vast majority of adults, would not be subject
to criminal sanction because the conduct is specifically excluded. n161 These exclusions are
consistent with the Free Speech Coalition requirement that there be harm to real children in order
to prohibit the conduct and not run afoul of the First Amendment. Likewise, the new exclusions
explicitly eliminate other visual media that do not directly implicate the interests of real children.
n162
However, the PROTECT Act's new "indistinguishable from" language does little to exclude
otherwise legal activity from being included within the ambit of prohibited activities - for
example, when the director of a feature film needs an actress to depict a teenager engaged in
sexual activity. n163 If the director were to use an actress over the age of eighteen, but who
appeared to be younger, the director and all involved with the film could be subject to the
substantial incarceration penalties of the PROTECT Act because an ordinary and reasonable
person could believe that an actual minor was engaged in sexually explicit conduct. Notably, this
would be the effect that the director of the film intended. This exemplifies that the PROTECT
Act is once again overbroad in its actual application and therefore will likely not stand the United
States Supreme Court's constitutional scrutiny. The Court would likely strike down the
PROTECT Act as it struck down the 1996 [*427] Act in Free Speech Coalition for being overly
broad. n164
Moreover, the "indistinguishable from" prohibition language will once again capture purely
digital child pornography in its grasp. If a production of a completely digital child in a
pornographic act was of such high quality that "an ordinary person viewing the depiction would
conclude that the depiction was of an actual minor engaged in sexually explicit conduct," it
would be a criminal act. However, the Court held in Free Speech Coalition, without the attendant
harm to actual children, this new Congressional mandate was overbroad. n165 Since there is no
actual harm to children that trumps First Amendment considerations, the law cannot be held to
be constitutional.
The "indistinguishable from" language of the PROTECT Act provides some safe harbor for
certain visual mediums (cartoon, drawings, etc.) but it does little to distinguish between real and
digital child pornography and pornography whose performers look like children, but in reality
are not. When the courts rule on the issue, the PROTECT Act will likely meet the same result as
the 1996 Act and be found unconstitutional.
VII. Conclusion
Questions considered by the Court involving the First Amendment are some of the most
emotional and problematic ones. Speech that the vast majority of reasonable citizens would
consider hurtful, offensive, or despicable is nevertheless protected by our Constitution. This
includes cross-burning, n166 offensive language, n167 and Nazi demonstrations. n168 In general, it
has been very difficult to [*428] regulate pornography; locales can only regulate pornography
that violates the community standards test set forth in Miller. n169 We have seen that when the
subjects of the pornography are children, the state's desire to prevent actual harm to real children
outweighs the infringement of some First Amendment rights and that pornographic images of
children can be regulated even if they are not inherently obscene under Miller. n170 However, like
most statutes that seek to infringe a First Amendment right, any statute seeking to regulate child
pornography must be narrowly tailored.
Advances in technology have allowed various forms of advanced digital imagery to take place.
Our legislators have responded to this by trying to regulate these new forms of pornography.
However, the regulators will fail and they regrettably must fail. Digital child pornography simply
does not implicate the interests of real children and, therefore, while offensive, absent some
compelling reason, cannot be used to infringe upon our First Amendment rights. There is more
room for regulation with morphed pornography, as that form of digital manipulation implicates
the interests of real children. The PROTECT Act is simply the 1996 Act restated, and when that
legislation is litigated in the courts, it too will probably be found to be unconstitutional.
As a society, we pay a high price for our First Amendment rights. We must put up with crossburnings, parades by groups whose mere existence is repugnant to persons of goodwill, offensive
language on t-shirts, and now digital child pornography. The price is high, but the value of living
in a society with free speech is even higher.
As Justice Kennedy most prolifically said when he delivered the opinion of the Court in Free
Speech Coalition, "First Amendment freedoms are most in danger when the government seeks to
control thought or to justify its laws for that impermissible end. The right to think is the
beginning of freedom, and speech must be protected from the government because speech is the
beginning of thought." n171
[*429]
Legal Topics:
For related research and practice materials, see the following legal topics:
Constitutional LawBill of RightsFundamental FreedomsFreedom of
SpeechObscenityConstitutional LawBill of RightsFundamental FreedomsFreedom of
SpeechScope of FreedomCriminal Law & ProcedureCriminal OffensesSex CrimesChild
PornographyElements
FOOTNOTES:
n1. Noam Chomsky, Professor of Linguistics, Massachusetts Institute of Technology, Boston,
Massachusetts. Professor Chomsky is a voracious writer and frequent critic of United States
foreign policy. See Media Quotes, available at http://64.233.167.104/search?q=cache:uXfHBLuT2YJ:www.publicaccesstv.net/quotes (last visited Mar. 31, 2005) (on file with the Rutgers
Computer and Technology Law Journal).
n2. Child Pornography Prevention Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-26 to -31
(1996).
n3. Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today
(PROTECT) Act of 2003, Pub. L. No. 108-21, 117 Stat. 650 (2003).
n4. See discussion infra Part III.
n5. Id.
n6. There has been much debate in American jurisprudence on what exactly is obscene and what
constitutes child pornography. Reasonable people can disagree about this subject to a point. See
discussion infra Parts IV.A-B. This Note will briefly discuss the definition of child pornography
as developed by the courts in case law and by the legislature in statutes, but a full discussion of
the definitional aspect of obscenity and child pornography is beyond the scope of this Note. See
id.
n7. This Note explores only United States federal laws regulating digital and morphed images of
child pornography. Many states have similar laws that regulate the same conduct. For example,
New Jersey state statute 2C:24-4(b)(5)(a)-(b). Generally, state courts have arrived at the same
conclusions as the United States Supreme Court regarding the constitutionality of these laws. See
New Jersey v. May, 829 A.2d 1106 (App. Div. 2003) (holding that a state statute that prohibited
purely digital images of child pornography was unconstitutional). Other countries have similarly
passed statutes prohibiting digital and morphed pornography. See e.g., Great Britain Criminal
Justice Act, 1988, 160(4), which references the Protection of Children Act, 1978, 1, as amended
by the Criminal Justice and Public Order Act, 1994, 84 (prohibiting production, distribution or
possession of "pseudo-photographs"); Canadian Criminal Code 163.1 (prohibiting computer
generated pornography that "shows a person who is depicted" as a child).
n8. U.S. Const. amend. I.
n9. Congress ratified the First Amendment to the United States Constitution in 1791. U.S. Const.
amend. I.
n10. Roy P. Madsen, Animated Film: Concepts, Methods, Uses 3 (1969).
n11. Id.
n12. Id. at 9. In 1937, the Walt Disney Company released the first feature-length animated film,
entitled Snow White and the Seven Dwarfs. Id.
n13. In contrast to digital technology, analog is essentially when physical items represent data.
For example, an analog watch is one in which the data (the time) is represented by the physical
movement of the hands over the watch face. In a digital watch, the time is represented by a liquid
crystal display in response to electronic stimulus within the computer chip of the watch. See
Analog Watch - Definition of Analog Watch in Encyclopedia, available at
http://encyclopedia.laborlawtalk.com/analog_watch (last visited Nov. 15, 2003) (on file with the
Rutgers Computer and Technology Law Journal).
n14. Id.
n15. Mary Bellis, History of the Digital Camera, San Francisco Art Institute, available at
http://inventors.about.com/library/inventors/bldigitalcamera.htm (last visited Nov. 15, 2003) (on
file with the Rutgers Computer and Technology Law Journal).
n16. Id.
n17. Id.
n18. Robert McMahan, Pixel Photography: An Illustrated Introduction to Digital Photography 13
(1993).
n19. For example, a specially built desktop computer with digital imaging manipulation software
is available from the Dell Corporation web site for approximately $ 586. The desktop computer
includes a high-speed processor, high capacity hard drive, special high definition, flat-panel
monitor for image manipulation, and all necessary software. See Dell - Client & Enterprise
Solutions, Software, Peripherals, Services, at http://www.dell.com (last visited Apr. 14, 2005)
(on file with the Rutgers Computer and Technology Law Journal).
n20. See Photo Software for Online Photo Albums and Digital Photo Printing, at
http://www.adobe.com/products/photoshopel/main.html (last visited Apr. 21, 2005) (on file with
the Rutgers Computer and Technology Law Journal).
n21. Id.
n22. Steve Bavister, Digital Photography, A No-Nonsense, Jargon-Free Guide for Beginners 1821 (2000).
n23. Id. See also Kodak Easy Share Gallery, at
http://www.kodakgallery.com/HelpAnswerPopup.jsp?answer_url=http%3A%2F% (last visited
Apr. 14, 2005) (on file with the Rutgers Computer and Technology Law Journal); Moving
Theory into Practice: Digital Imaging Tutorial, at
http://www.library.cornell.edu/preservation/tutorial/technical/technicalC-04.html (last visited
Apr. 14, 2005) (on file with the Rutgers Computer and Technology Law Journal).
n24. See How We Do It, Pixar Studio, at http://www.pixar.com/howwedoit/index.html (last
visited Apr. 21, 2005) (on file with the Rutgers Computer and Technology Law Journal).
n25. See Reuters, Italy Seeks World Beauty Queen, in Pixels, at
http://www.cnn.com/2003/TECH/11/07/digital.diva.reut/index.html (last visited Apr. 21, 2005)
(on file with the Rutgers Computer and Technology Law Journal). Visit the CNN web site to see
an example of the reality in which purely digital images can take. See also Miss Digital World
Project, at http://www.missdigitalworld.com/MDWContest/showpage/6 (last visited Apr. 21,
2005) (on file with the Rutgers Computer and Technology Law Journal).
n26. Reuters, supra note 25.
n27. Id.
n28. See Photo Software for Online Photo Albums and Digital Photo Printing, supra note 20.
n29. McMahan, supra note 18, at 134-38.
n30. Do Stars Have any Rights?, Time, July 27, 1998, at 52.
n31. Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95-225, 92
Stat. 7 (1978).
n32. Id.
n33. Id.
n34. Child Protection Act of 1984, Pub. L. No. 98-292, 98 Stat. 204-205 (1984).
n35. 458 U.S. 747 (1982); see discussion infra Part IV.B.
n36. 458 U.S. at 747, 749-50; Under the United States Supreme Court ruling in Miller v.
California, 413 U.S. 15, 21 (1973), for materials to be considered obscene they must, taken as a
whole, appeal to a prurient interest in sex and have no serious literary, artistic, political or
scientific value. This replaced the previous view that the work must be "utterly without
redeeming social value"; see discussion infra Part IV.A.
n37. 4, 98 Stat. 204; 5, 98 Stat. 205.
n38. Edwin Meese, III served in the administration of President Ronald Reagan. See Reagan
Administration Cabinet Members at
http://www.reagan.utexas.edu/archives/reference/cabinet.html (last visited Apr. 21, 2005) (on
file with the Rutgers Computer and Technology Law Journal).
n39. American Family Association, Attorney General's Commission on Pornography, at
http://www.afa.net/pornography/attygenrpt.html (last visited Apr. 21, 2005) (on file with the
Rutgers Computer and Technology Law Journal).
n40. Child Protection and Obscenity Enforcement Act of 1988, Pub. L. No. 100-690, 7513, 102
Stat. 4487 (1988).
n41. See Custodian of Records Compliance Notice, at http://www.adult.com/2257/2257.html
(last visited Jan. 15, 2004) (on file with the Rutgers Computer and Technology Law Journal).
n42. 495 U.S. 103, 106-07, 111 (1990) (holding that an Ohio state statute that subjected the
violator to criminal sanctions for merely possessing pictures that depicted a nude male
adolescent in a sexually explicit position was constitutional).
n43. Child Protection Restoration and Penalties Enhancement Act of 1990, Pub. L. 101-647, 104
Stat. 4818 (1990).
n44. Id. at 323.
n45. Id.
n46. See 2, 92 Stat. at 7; 2, 6, 98 Stat. at 204-05; 110 Stat. 3009-26 to -31.
n47. Hearing before the Senate Comm. on the Judiciary, 104th Cong., 2d Sess. (1996).
n48. 110 Stat. 3009-26 to -31.
n49. See Hearing before the Senate Comm. on the Judiciary, supra note 47.
n50. Id.
n51. Id.
n52. 121, 110 Stat. at 3009-28 (emphasis added). This provision effectively banned digital
pornography. See also 18 U.S.C. 2256(2) (defining "sexually explicit conduct" as "actual or
simulated ... sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal,
whether between persons of the same or opposite sex; ... bestiality; ... masturbation; ... sadistic or
masochistic abuse; or ... lascivious exhibition of the genitals or pubic area of any person.").
n53. 121, 110 Stat. at 3009-28. This provision effectively banned morphed pornography.
n54. Id.
n55. Id. at 3009-29.
n56. See infra Part IV.C. for a full discussion of The Free Speech Coalition decision.
n57. 535 U.S. 234, 241, 258 (2002).
n58. See Declan McCullagh, House Bans "Morphed" Child Pornography, Cnet News.com, at
http://news.com.com/2100-1023_3-939407.html (last visited Nov. 15, 2003) (on file with the
Rutgers Computer and Technology Law Journal).
n59. Press Release, Senator Orrin G. Hatch, Hatch Statement on Supreme Court's Decision
Regarding Virtual Child Pornography, at
http://www.senate.gov/<diff>hatch/index.cfm?FuseAction=PressReleases.Detail&PressRelease_
id=182317&Month=4&Year=2002 (last visited Nov. 15, 2003) (on file with the Rutgers
Computer and Technology Law Journal).
n60. Id.
n61. Id.
n62. 117 Stat. at 676.
n63. Id. at 679. "Indistinguishable" is defined in the PROTECT Act as meaning "virtually
indistinguishable, in that the depiction is such that an ordinary person viewing the depiction
would conclude that the depiction is of an actual minor engaged in sexually explicit conduct.
This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings
depicting minors or adults."
n64. Id. at 678.
n65. See 4, 98 Stat. at 204.
n66. See 7513, 102 Stat. at 4487 (requiring identification and age verification of all participants
in a pornographic film).
n67. See 121, 110 Stat. at 3009-29.
n68. Id. 121, 110 Stat. at 3009-28.
n69. 502(a), 117 Stat. at 676.
n70. The United States Supreme Court has sought to protect children not only from being the
subjects of pornography, but also from viewing any pornography. See Ginsberg v. New York,
390 U.S. 629, 638 (1968) (holding that a New York State statute prohibiting the sale of
magazines containing pictures of topless women to minor children was not unconstitutional; the
First Amendment rights did not outweigh the state's compelling interest in protecting minor
children from viewing this material).
n71. Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942) (holding that the use of "fighting
words" such as "god dammed racketeer" and "a dammed fascist" could be regulated by the state
and not run afoul of the free speech protections of the First Amendment because the words
would be "likely to cause an average addressee to fight.").
n72. Id. at 572.
n73. Roth v. United States, 354 U.S. 476, 489, 492-93 (1957) (holding that a mail order
merchant of arguably pornographic books and magazines could be prosecuted under federal and
state statutes without violating the provisions of the First Amendment or due process protections
of the Constitution if the materials were obscene under contemporary community standards).
n74. Id. at 492.
n75. The American Heritage Dictionary of the English Language, Fourth Edition, defines
prurient as "characterized by an inordinate interest in sex" or "arousing or appealing to an
inordinate interest in sex." American Heritage Dictionary 1413 (4th ed. 2002). The United States
Supreme Court defined prurient as "material having a tendency to excite lustful thoughts," Roth,
354 U.S. at 487 n.20, but subsequently excluded any thoughts "that provoked only normal,
healthy sexual desires." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1985). In
subsequent cases, the Court has not refined its definition of "normal, healthy sexual desires."
n76. Roth, 354 U.S. at 489.
n77. See Miller v. California, 413 U.S. 15, 20 (1973).
n78. See 378 U.S. 184, 196 (1964) (holding that a manager of a motion picture movie theater in
Cleveland Heights, Ohio could not be prosecuted under a state obscenity statute because the film
shown was not obscene).
n79. Id. at 197.
n80. See Miller, 413 U.S. at 18, 36-37 (holding that a California merchant who sent out a
brochure depicting groups of men and women engaging in various forms of sexual activity could
be prosecuted under a state statute when those materials were deemed to be obscene).
n81. Id. at 24 (internal quotations and citations omitted).
n82. See Stanley v. Georgia, 394 U.S. 557, 558, 568 (1969) (holding that criminalizing mere
possession, in one's private home, of three reels of eight-millimeter film detailing adult sexual
activity was unconstitutional).
n83. Id. at 565.
n84. See Osborne v. Ohio, 495 U.S. 103, 111, 125 (1990) (holding that prohibiting mere
possession of photographs of a nude male adolescent posed in a sexually explicit position was
constitutional).
n85. Id. at 109.
n86. 458 U.S. 747, 751-52, 774 (1982) (holding that a bookstore owner could be convicted under
a state statute for knowingly promoting a live sexual performance by a child).
n87. See Miller, 413 U.S. at 24.
n88. See Ferber, 458 U.S. at 753.
n89. Id. at 747.
n90. Id.
n91. Id. at 757 (emphasis added).
n92. Id. at 758-59.
n93. Id. at 758.
n94. Ferber, 458 U.S. at 759.
n95. See id. at 756-57.
n96. Id. at 759.
n97. Id. at 761.
n98. See id. at 762.
n99. The Free Speech Coalition is a California trade association of the adult-entertainment
industry. The Coalition was formed to assert the First Amendment rights of the adultentertainment industry. See Free Speech Coalition, Why You Should Join!, at
http://www.freespeechcoalition.com/application.php (last visited Apr. 14, 2005) (on file with the
Rutgers Computer and Technology Law Journal).
n100. These petitioners challenged only the provisions of the 1996 Act regulating digital
pornography, not morphed pornography. Free Speech Coalition. v. Reno, No. C97-0281VSC,.
1997 WL 487758, at 1 (N.D. Cal. Aug. 12, 1997), aff'd in part, rev'd in part, Free Speech
Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), aff'd sub nom. Ashcroft v. Free Speech
Coalition 535 U.S. 234 (2002).
n101. See Free Speech Coalition, 1997 WL 487758 at 1.
n102. Id.
n103. Senior District Judge Samuel Conti presiding, the case was decided in August 1997. See
id.
n104. Id. at 7.
n105. Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), aff'd sub nom. Ashcroft v.
Free Speech Coalition, 535 U.S. 234 (2002).
n106. Id. at 1094 (emphasis added).
n107. Id. at 1097-99.
n108. Free Speech Coalition v. Reno, 220 F.3d 1113 (9th Cir. 2000). The Ninth Circuit reasoned
that given the rapidly evolving technology and fluctuating legal standards, there were other cases
more "en-banc worthy." See id. at 1116.
n109. See Ashcroft v. Free Speech Coalition, 198 F.3d 1083, (9th Cir. 1999), petition for cert.
filed, 2000 WL 33979549 (U.S. Nov. 16, 2000) (No. 00-795).
n110. Petition for writ of certiorari filed on November 16, 2000. See Ashcroft v. Free Speech
Coalition (No. 00-795) Docket, at http://www.supremecourtus.gov/docket/00-795.htm (last
visited Mar. 31, 2005) (on file with the Rutgers Computer and Technology Law Journal).
n111. Brief of Amicus Curiae National Center for Missing & Exploited Children, Ashcroft v.
Free Speech Coalition, 535 U.S. 234 (2002) (No. 00-795).
n112. Brief of Amici Curiae the State of New Jersey et al., Ashcroft v. Free Speech Coalition,
535 U.S. 234 (2002) (No. 00-795).
n113. Brief for Amicus Curiae the American Civil Liberties Union et al., Ashcroft v. Free
Speech Coalition, 2001 WL 740913 (Jun. 28, 2001).
n114. See Free Speech Coalition, 535 U.S. 238-39 (Justices Kennedy, Stevens, Souter, Ginsburg,
Breyer and Thomas were in the majority, with Justices O'Connor, Rehnquist and Scalia
dissenting).
n115. Id. at 242.
n116. Id.
n117. See 413 U.S. 15.
n118. See 458 U.S. 747.
n119. Free Speech Coalition, 535 U.S. at 240.
n120. Id. at 241 (quoting the 1996 Act).
n121. Id. The Court noted that there were several works of art with participants who appeared to
be minors engaged in sexual activity, but that all would agree were of serious artistic merit,
including Shakespeare's Romeo and Juliet (the Court quoted a line from Romeo and Juliet that
said "she hath not seen the change of fourteen years") and the 2000 Academy Award nominated
film Traffic, which showed a sixteen year old girl who became addicted to drugs, engaged in
what appeared to be intercourse. Id. at 247-48.
n122. Id. at 241-42; see S. Rep. No. 104-358 (1996) (a legislative finding that digital and
morphed pornography: 1) seduces real children; 2) whets the sexual appetites of pedophiles; 3)
makes enforcement of other child pornography laws difficult; and 4) are used in the commerce of
child pornography).
n123. Free Speech Coalition, 535 U.S. at 249-51.
n124. Id. at 250-51.
n125. Id. at 250.
n126. Id. at 251 (citing Ferber, 458 U.S. at 761).
n127. Id. at 250-251.
n128. The Court stated that items like cartoons, video games, and candy can "be used for
immoral purposes." Id. at 251.
n129. Free Speech Coalition, 535 U.S. at 251.
n130. Id. at 252 (citing United States v. Playboy Entm't Group, Inc., 529 U.S. 803 (2000), which
held that a regulation eliminating adult programming from cable systems was unconstitutional as
less restrictive means of preventing access by minors were available).
n131. Id. at 253.
n132. Id. (quoting Stanley v. Georgia, 394 U.S. 557, 566 (1969)).
n133. Id. at 254.
n134. Id.
n135. Free Speech Coalition, 535 U.S. at 254; see Ferber, 458 U.S. at 762-63. The Court
reasoned in Ferber that if virtual images could be used then the child pornography problem
would be eliminated, thus ending the risk to our children from these vultures.
n136. Free Speech Coalition, 535 U.S. at 254-55.
n137. Id. at 255 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)).
n138. Free Speech Coalition, 535 U.S. at 255.
n139. Id. at 256.
n140. Id. at 273 (Rehnquist, C.J., Scalia, J., dissenting).
n141. " Sexually explicit conduct" is a defined term in the Child Pornography Prevention Act. 18
U.S.C. 2256(2)(b). See discussion supra Part III.
n142. 458 U.S. at 773-74; see discussion supra Part IV.B.
n143. Free Speech Coalition, 535 U.S. at 268-69 (Rehnquist, C.J., Scalia, J., dissenting) (quoting
and examining 18 U.S.C. 2256(2)(b)).
n144. Free Speech Coalition, 535 U.S. at 273 (Rehnquist, C.J., Scalia, J., dissenting).
n145. See 117 Stat. 650.
n146. See McMahan, supra note 19.
n147. See 502, 117 Stat. at 676.
n148. Free Speech Coalition, 535 U.S. at 242.
n149. See Id.
n150. For this Note, no real, digital, or morphed child pornography was viewed. Not only does a
lack of desire and moral repulsion to the images prevent one from viewing them, it is illegal to
merely possess such images. See 18 U.S.C. 2252(a) (criminalizing mere possession of child
pornography). That is not to say that child pornography is not readily available on the Internet
for free. A simple file-sharing search on http://www.bearshare.com with the term "child porn"
showed that over 403 "collections" of child pornography were available at that moment for
downloading (presumably these images were real child pornography). See BearShare, at
http://www.bearshare.com/download (last visited Jan. 3, 2004) (on file with the Rutgers
Computer and Technology Law Journal). Finally, while this Note postulates four methodologies
to create and use morphed child pornography, the ingenuity of pornographers and entrepreneurs
will no doubt show that the author's imagination in this regard is limited.
n151. There are many sites on the Internet that display children in extraordinarily provocative
poses, but that are not legally pornographic. See True Teen Babes, at
http://www.trueteenbabes.com (last visited Jan. 15, 2004) (on file with the Rutgers Computer
and Technology Law Journal). The existence of these web sites is beyond the scope of this Note,
but it should be noted that there are an abundant supply of children who, with parental
permission, would be willing to pose provocatively for online voyeurs.
n152. Free Speech Coalition, 535 U.S. at 250.
n153. See Ferber, 458 U.S. at 757-59; see also Osborne, 495 U.S. at 108-09.
n154. See Ferber, 458 U.S. at 758.
n155. Id. at 759.
n156. Id. at 756-62.
n157. Free Speech Coalition, 535 U.S. at 258.
n158. " Indistinguishable" is defined in the PROTECT Act as "virtually indistinguishable, in that
the depiction is such that an ordinary person viewing the depiction would conclude that the
depiction is of an actual minor engaged in sexually explicit conduct. This definition does not
apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or
adults." See 101(3)(c), 117 Stat. 679.
n159. See discussion supra Part III.
n160. See discussion supra Part III.
n161. For example, animated cartoons called anime are very common in Japanese popular
culture. A significant amount of pornographic material is produced by anime, some of it child
pornography. See What are Manga and Anime?, at
http://www.mit.edu:8001/afs/athena.mit.edu/user/r/e/rei/WWW/Expl.html (last visited Jan. 15,
2004) (on file with the Rutgers Computer and Technology Law Journal).
n162. Drawings, sculptures, and paintings are eliminated as prohibited items under the
PROTECT Act. 101(3)(c), 117 Stat. at 679.
n163. See discussion of the film Traffic, supra note 121.
n164. See supra Part IV.C; Free Speech Coalition, 535 U.S. at 256.
n165. Id. at 250-51, 256.
n166. See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (holding that a municipal ordinance
that prevents cross-burning was an impermissible restriction of the First Amendment).
n167. See Cohen v. California, 403 U.S. 15, 15-16, 26 (1971) (holding that a state regulation that
did not permit the plaintiff to wear a shirt with the words "F - K the draft" in a state building was
an impermissible restriction of the First Amendment).
n168. See Collin v. Smith, 578 F.2d 1197, 1199, 1210 (7th Cir. 1978) (holding that denying a
parade permit to uniformed American Nazis in a neighborhood populated by holocaust survivors
was unconstitutional).
n169. See Miller, 413 U.S. at 32-33.
n170. See Ferber, 458 U.S. at 756.
n171. Free Speech Coalition, 535 U.S. at 253.
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