One subgenre of pornography that is not protected by the First Amendment is kiddy porn, which involves real life subjects under the age of 18 (that's the federal definition).
Whenever the government moves to restrict speech or expression, its motives are subjected to what the courts call strict scrutiny. According to strict scrutiny, the onus is on the government to demonstrate a compelling interest showing why its actions may infringe against First Amendment protections.
The compelling interest in the case of kiddy porn is the protection of minors — that is, the subjects of the obscene materials — against the depredations of pornographers, and worse.
That is why First Amendment proponents beat the government in a U.S. Supreme Court case called Ashcroft v. Free Speech Coalition in 2002. Because the subjects of the material at issue were not real life children but rather computer-generated images, there were no minors to protect and, therefore, no compelling government interest.
Although Justice Clarence Thomas concurred in the Court's opinion, he noted that "persons who possess and disseminate pornographic images of real children may escape conviction by claiming that the images are computer-generated, thereby raising a reasonable doubt as to their guilt."
This is precisely what a Washington County man attempted to do in the Wisconsin District II Court of Appeals. But that court shut him down a week ago, in State v. Van Buren (.pdf; 14 pgs.).
Van Buren was charged with (and convicted of) repeated sexual assault of an 11-year-old girl in 2004, when Van Buren was 26. His friends alerted West Bend police that something "didn't seem right" about his relationship with the girl, who later testified to authorities that Van Buren had been sexually assaulting her for more than a year.
Then a search of Van Buren's computer turned up 51,760 images alleged to contain child pornography, a selection of which were used to convict him of their possession at his jury trial. On appeal, Van Buren argued that it was insufficient for the government to simply have presented the images as evidence, it needed to prove further that the images depicted real children as opposed to computer-generated ones (an argument that apparently did not occur to him at trial).
Juries comprised of laypeople, Van Buren claimed, are incapable of determining whether such evidence depicts real children or not, given the technological sophistication available to produce the latter. He was also able to muster up a dissenting opinion from a recent federal case out of the First Circuit, remarking that, "virtual and real child pornography images are indistinguishable, and that even experts have difficulty determining what is real and what is virtual."
Indeed, the District II court found much to commend in Van Buren's proffered First Circuit case. But, unfortunately for Van Buren, it reserved its commendations for the majority opinion portion of United States v. Rodriguez-Pacheco: "We can explain our view on the issue no better than the First Circuit did."
[T]he mere possibility, unsupported by evidence, that the images could have been produced by use of technology and not using real children was not sufficient to reject a lower court’s ruling founded on reasonable inferences derived from experience and common sense.Mr. Van Buren was sentenced to 25 years in State prison, followed by another 20 of extended supervision, in July, 2005. The present appeal also contained claims of ineffective assistance of counsel, which the District II court also denied.
It's unknown at this time whether Van Buren will launch another ineffective assistance of counsel claim, proceeding from his placing into the hands of the District II court the very rationale and even the language upon which it supported the denial of his appeal.
