May 23rd, 2008 by Benjamin Duranske
Last year Linden Lab, the company that runs the virtual world of Second Life, banned sexual ageplay in its world. The policy specifically prohibited “depictions of or engagement in sexualized conduct with avatars that resemble children,” and clarified an earlier statement that was widely seen as overbroad. This hit VB’s radar screen because although “virtual child pornography” is illegal in most countries, a law attempting to make it illegal in the U.S. had actually been struck down by the Supreme Court in Ashcroft v. Free Speech Coalition.
After the Ashcroft decision, Congress went back to the drawing board and passed a new law, 2003′s PROTECT Act. Part of that law prohibits certain (though not all) types of virtual child pornography, and another part specifically prohibits obscene virtual child pornography. This law likely influenced Linden Lab’s ban.
From the statute:
Sec. 1466A. Obscene visual representations of the sexual abuse of children
(a) IN GENERAL- Any person who, in a circumstance described in subsection (d), knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that–
(1)(A) depicts a minor engaging in sexually explicit conduct; and
(B) is obscene; or
(2)(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and
(B) lacks serious literary, artistic, political, or scientific value;
or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(1), including the penalties provided for cases involving a prior conviction.
Basically, the law limits legal “virtual child pornography” to material that either doesn’t depict explicit sexual acts (under Section 2) or isn’t “obscene” (under Section 1). It appears that the drafters built this law so that even if Section 2 were to be held unconstitutional (under the well-known Miller test, “obscenity” is determined based on contemporary community standards, which makes specific prohibitions somewhat suspect) Section 1 could be left intact — and thus “obscene” virtual child pornography would remain prohibited even if the more explicit provision was found unconstitutional.
It may not matter anyway. While this is admittedly speculative, it seems that most of what Section 2 prohibits would also be found “obscene” even under the relatively lax “contemporary community standards” of an adult-based virtual world like Second Life, and certainly under the contemporary community standards of most real life U.S. communities.
A recent Supreme Court opinion addressed this new law, albeit somewhat tangentially, and appeared to at least tacitly endorse the provisions regarding virtual child pornography. The case, U.S. v. Williams (.pdf), isn’t directly about virtual child pornography — it is largely about whether Congress can make the act of merely offering to provide real child pornography illegal, which the Court held it could — but it does refer to the provision.
From the 7-2 majority opinion, by Justice Scalia:
[T]he dissent accuses us of silently overruling our prior decisions in Ferber and Free Speech Coalition. According to the dissent, Congress has made an end-run around the First Amendment’s protection of virtual child pornography by prohibiting proposals to transact in such images rather than prohibiting the images themselves. But an offer to provide or request to receive virtual child pornography is not prohibited by the statute. A crime is committed only when the speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children. It is simply not true that this means “a protected category of expression [will] inevitably be suppressed.” Simulated child pornography will be as available as ever, so long as it is offered and sought as such, and not as real child pornography.
The opinion does not directly support this statute’s provisions prohibiting “obscene” virtual child pornography and simulated depictions of specific acts, but it doesn’t fire any warning shots indicating the provisions might be held unconstitutional either. It seems, both in light of this holding and the recent negative press regarding user-generated adult content in Second Life, that Linden Lab was smart to move as it did to explicitly ban specific acts that arguably violate this law last November.
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