WASHINGTON — Stung by a Supreme Court defeat in April, members of Congress have teamed up with Attorney General John Ashcroft on a new bill to ban virtual child pornography.

“The Supreme Court decision did grave injury to our ability to protect children from exploitation,” said Ashcroft at a May 1 press conference to introduce the bill.

The high court decided 6-3 on April 16 that the Child Internet Protection Act, which banned the possession and distribution of computer-generated images of children engaged in sex acts, was unconstitutional and overly broad.

Over a dozen lawmakers, led by Texas Republican Lamar Smith, introduced legislation to ban many of the same images covered in the 1996 bill.

Rep. Mark Foley, R-Fla., said that they had to act immediately to the Supreme Court's recent ruling.

“The high court, in siding with pedophiles over children, forces us into action. Today, united, we begin to reverse the damage,” said Foley.

Rep. Smith said his new bill is “substantially narrowed” from the 1996 prohibition. Smith said he worked with officials at the Justice Department to develop the bill.

Smith's bill would ban all digitally generated pictures of prepubescent children engaged in sexual acts. Images involving older children would also be banned, unless pornographers can prove they didn't use real children to create their images.

Court Rulings

Law enforcement officials said that court rulings in recent years have interfered with the prosecution of child pornographers.

Michael Heimbach, chief of the FBI's Crimes Against Children Unit, said that a ruling by the 9th U.S. Circuit Court of Appeals in 1999 has caused investigators to drop cases in which they cannot positively identify children in the images in question.

“I fear that in many cases, this speculative technological debate will indeed result in a bitter end,” said Heimbach before the House Judiciary Subcommittee May 1.

Making the FBI's job tougher is the price we pay for the First Amendment, argues attorney Louis Sirkin, who argued the case for the Free Speech Coalition before the Supreme Court.

Sirkin said the Free Speech Coalition, which includes groups like the American Civil Liberties Union, has unequivocally stated that child pornography was not free speech.

But he said that it's the responsibility of the government to prove whether a sexual-explicit picture of a child is real or digital.

“I've got to believe in the power of the federal government and law enforcement that they could make this case,” Sirkin said. “If they have to work harder to make their case, they will have to work harder.”

But he stated that a prohibition on virtual child porn is unconstitutional.

“If it's not a child, then it's not child porn,” he told the Register. “That's just what the Supreme Court said.”

If the government has the power to restrict that form of speech, Sirkin added, “You might as well eliminate the Bill of Rights.”

But pro-family activists reject Sirkin's view of the First Amendment and support renewed legislative efforts to ban all child pornography, virtual or real.

“If the purpose of the legislation is important enough, you go back and write the law,” said Thomas Jipping, senior fellow in legal studies at Concerned Women for America.

He said many flaws are to be found in the high court's ruling.

“This decision is bad not just because of its result,” said Jipping. “The Supreme Court could have construed the statute in a way that was constitutional.”

Instead, Jipping said, the Supreme Court interpreted the legislation to prohibit movies like Traffic or American Beauty, which appear to include minors engaged in sexual activity. If the law prohibited such speech, which has artistic merit, then it is unconstitutional, the court said.

Jipping said that the law was never intended to be interpreted that broadly.

“That argument is difficult to make,” he said. “If this legislation would have prevented [movie producers] from their craft, why were these movies made after the law was passed?”

But ultimately, legislation alone won't be sufficient to cure the problem of child pornography, Jipping stressed.

“This problem is evidence of deep cultural sickness. It needs a comprehensive solution,” he said. “Too many people put too many eggs in the legislative basket.”

Wider Problem

Jipping recommended that parents be more protective of their children so that they don't feel alone or isolated because it might make them vulnerable to attack.

And the problem with smut is it goes well beyond just child porn, the pro-family advocate added.

“We have to have a culture where sexually explicit material is disfavored in television, in movies and in music,” said Jipping. “The adult bookstore used to be on the edge of town or in an alley. Now it's on main street.”

Joshua Mercer writes from Washington, D.C.