A man’s thoughts are his own; he may sit in his armchair and think salacious thoughts, murderous thoughts, discriminatory thoughts, whatever thoughts he chooses, free from the “thought police.” It is only when the man gets out of his armchair and acts upon his thoughts that the law may intervene.1
In my ignorance, I have to accept the possibility that if we had to decide today just what the First Amendment should mean in cyberspace, we would get it fundamentally wrong.2
INTRODUCTION
A man enters a bedroom and sees a child sleeping on her bed. He approaches her and begins to rub her back. The child stirs and looks up, excited to see the man. She giggles as he undresses her, and soon they have sex. But the man is not actually with the child, instead he is sitting in his armchair, playing a popular adult virtual reality (VR) game, Kanolojo,3 experiencing the scenario through virtual reality hardware. Imagine that the child avatar was indistinguishable from a real-life child, but no child was used to create it. From the adult’s point of view, the VR experience makes it both look and feel as if he is having sex with an actual child.4 This type of activity is called “virtual ageplay” and is a popular trend in adult VR games.5
In 2002, the Supreme Court held that nonobscene virtual child pornography is afforded First Amendment protections.6 However, a graphic computer-generated image of a minor engaged in sexually explicit conduct can still fall under the federal criminal definition of child pornography so long as the image is indistinguishable from an actual, real-life minor.7 As VR technology advances to make computer-generated avatars photorealistic—blurring the line between digital and real photography—it is unclear whether those playing adult VR games run afoul of child pornography laws or if they are protected by the First Amendment.8
This Note will discuss the constitutionality of graphic, sexually explicit adult VR games. Part I will begin with a background of virtual reality and the future of VR porn. Technology studios are developing software that makes the virtual world not only look realistic, but feel realistic through sensory feedback.9 VR software will soon allow avatars to mimic and track the facial expression and body position of its users.10 Although photorealistic VR platforms are not yet on the market, the technology exists and is in testing at VR studios.11 One day soon, the difference between interacting in real life and interacting with people virtually will not be so clear-cut. This is especially true with VR porn.12 Part I ends with a background on obscenity and child pornography jurisprudence.
Part II of this Note will focus on adult VR games (games that are pornographic) and the resurgence of federal obscenity law proscribing obscenity on the internet. The difference between adult VR games and VR porn is that most adult VR games depict avatars that look computer-generated. However, there is certainly a demand for better graphics in adult VR games, and the technology already exists.13 Part II concludes with an exploration of how one of the definitions of child pornography might apply to images produced in adult VR games involving photorealistic childlike avatars.
Part III of this Note will propose that 18 U.S.C. § 2256(8)(B)—one of the definitions of child pornography—should apply to graphic, sexually explicit adult VR games employing childlike avatars that look indistinguishable from actual children. No child is abused when someone has virtual sex with a virtual minor, but the requirement of actual child abuse to prohibit explicit, realistic depictions of child abuse is no longer an adequate standard as advances in technology erase the line between real and virtual depictions. The First Amendment should not protect the right to produce graphic, sexually explicit depictions of children engaged in sexual activity with adults.
I. BACKGROUND
A. Virtual Reality
One experiences virtual reality when they put on an interactive hardware to “enter” a realistic three-dimensional virtual environment.14 VR is different from any other type of gaming experience in that it can convince the brain that it is somewhere it is really not.15 This experience is called “presence”—your mind accepts the illusion that you are there.16 Through headsets and hand controllers, the user can look around and “move” things in the virtual world.17 While doing this, the VR user experiences sensory feedback, making the experience fully immersive.18
Although virtual reality has been written about since the 1930s,19 VR entered the public discourse when Facebook bought Oculus, a VR company, in 2014.20 Since then, other companies like Google, Samsung, and PlayStation have developed their own VR headsets.21 It is projected that there will be 2.4 billion VR users worldwide by 2025,22 but VRs current use is predominantly in the gaming market.23 The question of whether VR will become mainstream across different platforms is uncertain.24 However, this has not stopped other industries from incorporating VR into their business practices. Big-box stores like Walmart, IKEA, and Lowe’s have developed virtual shopping platforms.25 Amazon is developing a mirror that dresses you in virtual clothes when wearing a VR headset.26 Social media and entertainment apps are also incorporating VR.27 Facebook’s VR app, called Facebook Spaces, is the leading example of what social networking can look like in the virtual world.28 In Facebook Spaces, users create their virtual avatar and interact with their friends in a variety of different places.29 For example, Mark Zuckerberg, when showcasing the capabilities of Facebook Spaces during a Facebook Live video, received criticism when he “toured” Puerto Rico after Hurricane Maria.30 Users who were watching the video found it off-putting seeing a cartoon avatar “hang out” in a place devastated by a natural disaster.31 When apologizing, Zuckerberg noted the “presence” experience: “When you’re in VR yourself, the surroundings feel quite real . . . . But that sense of empathy doesn’t extend well to people watching you as a virtual character on a 2D screen. That’s something we’ll need to work on over time.”32
But when avatars start to look real, and not like cartoons, will that sense of empathy extend to people watching avatars in VR? Metapixel,33 a 3D scanning and VR studio, plans to make that a reality.34 They have developed a software that creates “astonishingly lifelike avatars” based on photographs of actual people.35 The creator of Metapixel believes it will drastically change the VR experience with the rise of artificial intelligence: “[A]s AI improves . . . avatars could understand where you’re ‘looking’ in a VR game and respond accordingly. The more realistic the avatar looks and acts, the more you’re engaged with what’s going on.”36 In addition to the development of lifelike avatars, VR studios are also developing face-tracking technology.37 This means one’s VR avatar mimics the facial expression of the individual controlling the avatar.38
Facebook is also researching to create technology that allows full body-tracking, so that one’s avatar can not only mimic the facial expression, but also the person’s entire body position.39 As this type of technology becomes incorporated in VR platforms, the distinction between virtual and real is diluted, raising serious ethical and legal concerns.40 If avatars in VR not only look exactly like real-life people, but can also respond to facial cues and mimic the facial expression and full body position of the user, interacting with avatars in VR becomes more like interacting with people face-to-face.
1. Virtual Reality Pornography
Because VR is so immersive, the pornography industry has flourished on VR platforms.41 Pornography will be the third-largest VR sector by 2025,42 and some even believe that the porn industry will define the future of VR.43 In 2016, Pornhub, a popular pornography site, introduced its VR section and reported that there were more than 38 million searches for VR in that year alone.44 Whereas VR platforms may be just a trend in other industries, VR porn is here to stay,45 and with it comes concerns about its regulation and future legality.46
Although 2-D porn and VR porn portray the same type of material,47 VR porn creates a “dramatically more intense erotic experience” for its users.48 It feels as if the viewer is actually engaged in sexual activity with the person.49 Holly Richmond, a somatic psychologist, calls it neurological: “You aren’t just watching and thinking about it. You are feeling it, and it’s not just your genitals. There is literally a mind-body connection.”50 Not only do users feel like they are participating in the action, they also may decide how they want to experience the action.51 In 2-D porn, the producer decides the timing, the action, and the camera angles, but in VR porn, these powers are with the viewer.52 The user, then, can experiment with their fantasies, no matter how dark.53 This element raises ethical concerns, especially because the VR porn industry is evolving to incorporate physical elements,54 further blurring the line between virtual and real sexual conduct.55 There also is the rise of augmented reality (AR) porn, which gives consumers the ability to place animated porn stars in the real world.56 With the use of teledildonic technology,57 robotic sex dolls,58 and VR “sex suits,”59 not only will users be virtually present in a pornographic scene, but they can partake in the virtual sexual activity through real touch and sensation. Is the law equipped to regulate in this area? The next Section addresses that question.
B. Obscenity Law
The First Amendment states that “Congress shall make no law . . . abridging the freedom of speech.”60 The right to expression is crucial to a democracy.61 However, like all other fundamental rights, freedom of speech is subject to regulation.62 In Chaplinsky v. New Hampshire,63 the Court held that the First Amendment affords no protection to speech that serves “no essential part of any exposition of ideas.”64 Speech such as profanity, libel, incitement, fighting words, and obscenity fall within that category.65 Classifying obscenity outside the scope of First Amendment protections can be traced back to English common law.66 The Supreme Court in Miller v. California67413 U.S. 15 (1973). established the current test for obscenity: (1) “whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient [sexual, salacious] interest”; (2) “whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law”; and (3) “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”68 Therefore, under Miller, material will be deemed obscene if it appeals to the prurient interest, is patently offensive to the average person in the contemporary community, and lacks serious value.69 Sexual materials are not by default considered obscene: they must meet all three requirements under Miller.70 In general, one has a right to privately possess obscene materials inside their home,71 but one does not have a right to produce obscene materials for purposes of distribution.72 In most cases, child pornography will fall under obscenity,73 however the next Section highlights a previous gap in the law that contributed to a booming child pornography market.74
C. Mending the Gap Between Obscenity and Child Pornography
By the 1980s, state and federal officials were dealing with a child pornography problem.75 Because literary, artistic, political, and scientific material is protected under the Miller test, depictions of children engaged in sexual activity could be legally distributed so long as the work as a whole had some value. For example, a documentary on war crimes could feature a scene of child rape. Although the documentary portrays child abuse, the documentary, as a whole, has educational value. Therefore, the material would fail under the Miller test and would be protected under the First Amendment. This gap is one that the New York v. Ferber Court rectified by classifying child pornography separately from obscenity.76
At issue in New York v. Ferber77New York v. Ferber, 458 U.S. 747 (1982). was a New York statute78 that prohibited the distribution of child pornography—material depicting children under the age of sixteen engaging in sexual conduct—without requiring that the material be legally obscene.79 The statute defined sexual conduct as “actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.”80 The question was not whether the First Amendment protects a right to produce nonobscene child pornography,81 but rather if it protects the right to distribute nonobscene child pornography.82
The case involved Paul Ferber, who owned a bookstore in Manhattan that specialized in sexual material.83 He sold two films portraying young boys masturbating to undercover agents, and was convicted under the statute.84 Ferber argued that the State can prohibit the distribution of child pornography so long as it only prohibits distribution of obscene child pornography.85 The New York Court of Appeals ruled the statute unconstitutional for not tailoring its language to Miller.86 Justice White, writing for the U.S. Supreme Court, reversed.87
Justice White reasoned that states are afforded more leeway in child pornography regulation than other content-based laws based on five points. First, the state has a compelling interest in safeguarding the physical and psychological well-being of a minor and preventing the sexual exploitation and abuse of children.88 Second, the distribution of pornographic materials is “intrinsically related” to child sex abuse.89 The harm to the child is exacerbated each time their documented sex abuse comes across a new set of eyes. Also, because the producers of child pornography are extremely difficult to locate, Justice White determined it not only reasonable, but also necessary to prohibit the dissemination of child pornography in eradicating child sexual abuse.90 Third, if the State was prevented from prohibiting the distribution of nonobscene child pornography, it would be facilitating an economic motive to promote documentation of illegal conduct.91 Fourth, there is little value in protecting the right to distribute depictions of children engaged in lewd sexual conduct for artistic, literary, or educational work. If the use of a child was necessary for literary or artistic value, the Court notes that either a simulation or an adult who looks like a minor could stand in.92 Fifth, classifying child pornography as a category of expression outside the protection of the First Amendment is not incompatible with precedent.93 These five points highlight the Court’s focus: preventing the exploitation and sexual abuse of children.94 Justice O’Connor, concurring in the opinion, echoed this distinction by emphasizing how any appreciation of the material was a nonfactor when the material directly harms children’s psychological, emotional, or mental health.95
Once the Court concluded that the state has leeway in regulating child pornography, it addressed the categorical limits of child pornography and its distinction from obscenity analysis. First, the type of conduct to be prohibited must be adequately defined by state law.96 Second, the type of material must be a visual depiction to fall outside First Amendment protections.97 Lastly, sexual conduct must have a clear definition.98 As for child pornography analysis, it is irrelevant whether the material appeals to the prurient interest of the average person, or whether the material is portrayed in a patently offensive way.99 When material is not obscene, but still portrays minors engaging in sexual conduct, it is child pornography and is not protected under the First Amendment.
Lastly, Ferber determined that the statute was not overly broad. For a law to be struck down under the overbreadth doctrine, the overbreadth must be substantial.100 The purpose of the overbreadth doctrine is to assure that the First Amendment rights of those not before the Court are not unduly restricted.101 The Court struggled to imagine the statute restricting a wide range of protected speech102 and was skeptical of a situation where a substantial amount of literary, scientific, or artistic material would fall under the statute.103
In analyzing the statute, the Court was not focused on the content of the material, but rather on what was required to create the material: the abuse and exploitation of children.104 Because Miller asks for the material to be taken as a whole, a movie containing just five seconds of “the hardest core of child pornography” could be protected if it contained some serious literary value.105 Although child pornography falls under First Amendment analysis, Ferber stands for the proposition that the reason for prohibiting its distribution was never grounded in its content, but rather in that fact that its distribution had grave impacts on the children depicted.106
Eight years after Ferber, the Court faced an Ohio statute107 that prohibited mere possession of child pornography in Osborne v. Ohio.108 Clyde Osborne had been convicted under the statute when police discovered four photographs of young boys posing in a sexually explicit manner in his home.109 The question was whether a state could constitutionally proscribe the possession and viewing of child pornography inside one’s home without violating First Amendment principles.110 The Court had previously held in Stanley v. Georgia111394 U.S. 557 (1969). that a law banning the private possession of obscene material was in violation of the First and Fourteenth Amendments.112 Osborne argued that the ruling in Stanley extended to child pornography too.113 Justice White, writing for the majority, disagreed.114 Prohibiting the distribution and public display of obscene materials is founded on the principle that obscene materials harm society at large—they offend “the public morality.”115 But once the individual is inside his own home, the individual has a First Amendment and privacy right to possess and view whatever he desires: “[W]hatever the power of the state to control public dissemination [of obscenity], it cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.”116 This justification is absent when the material in question is child pornography. Applying the same justifications used in Ferber, the Osborne Court reasoned that the statute worked toward drying up the child pornography market.117 Because the child pornography market had been driven underground since Ferber, making it more difficult to “stamp out [the] vice,” the Court believed proscribing possession was necessary, just like the Ferber Court concluded prohibiting distribution was necessary to deter production of child pornography.118 Although the possessor is not the abuser of the minor, he is still in possession of recorded child abuse, and the victim suffers each time the material circulates.119 The Court also reasoned that child pornography could be used to seduce children to engage in sexual conduct.120 Because of the state’s overwhelming interest in protecting minors from sexual abuse and exploitation, the majority held that states are allowed to prohibit possession of child pornography, regardless of whether the material is obscene.
D. Child Pornography Limitations: Virtual Representations
In 1996, Congress updated child pornography laws to prohibit possession of virtual child pornography—material that does not depict real children.121 Under the Child Pornography Prevention Act (CPPA), individuals who produce, possess, or distribute sexually explicit, but not obscene, images that simply appear to depict persons under eighteen years of age could be imprisoned for fifteen years for a first offense.122
The Supreme Court in Ashcroft v. Free Speech Coalition123535 U.S. 234 (2002). involved a facial challenge124 to two provisions of the CPPA: Section 2256(8)(B), which prohibited any visual depiction, including a computer-generated image that either is or appears to be a minor engaging in sexually explicit conduct,125 and Section 2256(8)(D), which defined child pornography to include any sexually explicit image that was “advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material” depicts “a minor engaging in sexually explicit conduct.”126 A separate provision of the statute, which was not challenged, proscribed morphing, a method in which an image of an actual minor is modified to portray the minor in sexual conduct.127 The Court addressed the provision briefly and hinted that it posed no threat to First Amendment principles because it involved the use of actual children.128
Justice Kennedy, writing for the majority, ruled the provisions unconstitutional because they proscribed nonobscene material without requiring the images to depict actual children.129 The Court first noted that a literal reading of the statute would classify a broad range of protected speech as child pornography, from Renaissance paintings depicting scenes from classical mythology to mainstream movies employing adult actors who “appear to be” minors engaged in sexual conduct.130 The Court stressed that the government cannot restrict speech just because the speech might potentially motivate someone to commit a crime.131 Even if a class of nonobscene speech could still offend one’s “sensibilities,” that alone cannot constitute a restriction.132 The CPPA would not only cover offending material, but also a common literary theme: teenagers engaging in sexual activity, “a theme in art and literature throughout the ages.”133 The Court mentioned that material such as Romeo and Juliet, Traffic, and American Beauty could be subject to punishment under the CPPA.134
The government defended the CPPA by using the same justifications in Ferber and Osborne: the indirect harm the images had on children.135 First, Congress found that virtual child pornography could help facilitate abuse.136 Also, because individuals with pedophilic desires are aroused by child pornography, Congress reasoned that virtual child pornography could have the same effect as actual child pornography, and increase the risk that these individuals would abuse children and create actual child pornography.137 It followed that virtual child pornography could be used to seduce children to engage in sexual conduct, and because the material is presumably created to arouse the sexual desire of individuals with pedophilic impulses, Congress believed that virtual child pornography eventually harms real children based on its content.138 However, the Court in Ferber and Osborne did not focus on the harm of the content.139 In both cases, the harm flowed from the production and distribution of the material, not the content of the material itself.140 The Ferber Court reasoned that the government has a compelling interest in banning the distribution of child pornography, regardless of whether it is classified as obscene because (1) circulation of documented abuse would cause new injury to the child’s reputation and emotional well-being, and (2) the traffic in child pornography serves an economic motive for its production, giving the state an interest in closing the distribution network.141 These two aspects are absent in the production and distribution of virtual child pornography. Therefore, the Court did not find virtual child pornography indirectly harmful to children.
1. Congress’s Response to Free Speech Coalition
In response to Free Speech Coalition, Congress passed the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act (PROTECT Act) in 2003.142 The Act contains a pandering provision, which makes it a crime to solicit or offer child pornography that is intended to cause another to believe that the material is illegal child pornography, regardless of whether that material depicts real or virtual children.143 The defendant, Michael Williams, was convicted under the provision when he told an undercover Secret Service agent in an online chat room that he had photos of his four-year-old daughter being molested by four men.144 Williams argued that the pandering provision was unconstitutional under the First Amendment.145 Justice Scalia, writing for the majority, disagreed.146
In construing the statute, the Court framed the provision to mean that it only banned the collateral speech that introduced child pornography into the child pornography distribution network, rather than ban virtual child pornography itself.147 The harm that Congress was concerned about was not child abuse, but rather speech that alluded to containing child sex abuse.148 The focus was not on preventing the harm of child sex abuse, but rather on speech that provides or offers it.149 No child is harmed when someone alleges that they possess child pornography. No child is harmed when someone asks for child pornography. However, a child is harmed when an image depicting their abuse is circulated.150 The PROTECT Act aims to impede the actions that facilitate the illegal network. If the federal government wants the child pornography network to shrink, the Court reasoned that Congress could prevent people from accessing child pornography by prohibiting the speech that asks for it. But if use of an actual child remains the defining feature of child pornography, Justice Thomas’s concurrence in Free Speech Coalition deserves reconsideration in light of technological advances in VR and adult VR gaming.151
II. ANALYSIS
A. Adult VR Games
“Adult” VR games are an alternative to VR porn, a “NSFW”152 option for virtual reality gaming.153 Although not as mainstream as VR porn, adult VR games are slowly becoming more popular.154 The games all involve sexually explicit content, but the graphics vary. Whereas VR porn shows real-life porn actors, adult VR games typically depict virtual avatars.155 Some strive to have photorealistic avatars,156 while others have Japanese anime avatars.157 The games loosely involve some mission or goal. For example, in VR Kanojo (Konjo means “girlfriend” in Japanese), the player is asked to help “tutor” a neighborhood girl named Sakura.158 She appears to follow the “Japanese style of appearing young and feminine with high pitched voice and passive demeanour.”159 Over time, the player unlocks new scenes with Sakura. The longer you “play” with Sakura, the more sexually explicit the content becomes.160 In Happy Biing VR, a “Mosquito-inspired indie game,” the player’s mission is to save the world by traveling back in time to steal the blood of twenty-first century women for DNA samples.161 The user plays a mosquito and can get extra points by biting the girls’ “sensitive parts,” which unlocks new poses, outfits, and scenes.162 However, even if the avatars do not look photorealistic, human sensibilities still transfer over. For example, Summer Lesson,163 a VR dating sim game,164 is different from other adult VR games in that there is nothing overtly sexual in its content, but its purpose is to develop a close friendship with the girl avatar.165 Kim Horcher, the host of Nerd Alert, a popular YouTube channel that reviews video games and VR content, mentioned that players will likely develop empathy for the avatar in VR because it feels like they are actually sitting right next to the girl.166
The big difference between adult VR games and VR porn is that most adult VR games depict avatars that look computer-generated. However, there is certainly a demand for better graphics in adult VR games,167 and the technology already exists.168 For example, EVR Studio, a VR content company based in Korea, is developing Project M. Its goal is to present users with realistic looking digital characters.169 Project M markets itself as an “interactive adventure VR game . . . where users establish friendship with digital characters.”170 Although still in its beta phase, some of the demo videos show photo-realistic looking avatars.171 VRLove is another on-the-rise adult VR game that is in development for Oculus Rift. Like other adult VR games, the game is still in its early stages.172 In VRLove, players will soon be able to customize their avatar and the partners they will “play” with. It also supports a teledildonic feature.173
B. Dusting Off Obscenity Law to Proscribe Virtual Representations
The amount of explicit sexual conduct involving virtual minors will continue to rise on virtual platforms.174 One response to regulating this material is obscenity law. Obscenity is a unique class of unprotected speech based entirely on its message and how that message “offends” the community as a whole, rather than any specific harm to an individual.175 Obscenity law is critiqued for being antiquated and outdated.176 Federal obscenity charges are also rare.177 In fact, obscenity law seemed to be in its “death throes” by the 1990s.178 Because the Miller test was created before the internet, how can we determine what constitutes “the local community” for online content?179 When Congress revised the PROTECT Act to conform to Free Speech Coalition’s ruling, they used the Miller test to proscribe virtual representations.180 By doing this, Congress essentially worked around the ruling by still prohibiting virtual child pornography, but redefined the material as obscenity rather than child pornography.181 So if there is reasonable doubt about whether the child portrayed is an actual child, federal prosecutors can still prosecute the material so long as it satisfies the Miller test.182
The Fourth Circuit upheld the PROTECT Act’s obscenity provision in United States v. Whorley.183 Dwight Whorley was convicted under three federal statutes: (1) 18 U.S.C. § 1462, which makes it a crime to import obscene materials; (2) 18 U.S.C. § 1466A(a)(1), the PROTECT Act’s obscenity provision; and (3) 18 U.S.C. § 2252(a)(2), the PROTECT Act’s provision banning child pornography. Whorley challenged the constitutionality of § 1462 and § 1466A(a)(1).184 Whorley was using a computer at the Virginia Employment Commission when a woman saw him viewing what she believed to be child pornography on the computer. She informed an employee, who alerted the manager.185 When the manager approached Whorley, the manager saw Whorley holding print outs of “Japanese anime-style cartoons of children engaged in explicit sexual conduct with adults.”186 The manager asked Whorley to leave, believing Whorley’s behavior was inappropriate. After Whorley left, the manager and other supervisors approached the computer Whorley was using and discovered his YAHOO! email account was still open. They found several more copies of manga cartoons, printed them out, and called the state police.187
A grand jury returned a seventy-five-count indictment against Whorley.188 On appeal, Whorley first argued “that 18 U.S.C. § 1462189 [was] facially unconstitutional because ‘it makes no exception for the private receipt, possession, or viewing of obscene material.’”190 As established in Stanley v. Georgia, the First Amendment protects the possession of obscene materials in the home.191 However, Stanley’s holding is a narrow one.192 Just because one has a right to possess obscene material does not mean one has a right to receive obscene materials through interstate commerce.193 The right to possession only applies when the defendant is inside his home and the material has already been “delivered” to the defendant.194 If one wants to view obscene pictures in peace, they must print it out (inside their home) and store it inside a physical safe (inside their home).195 Therefore, the court rejected this argument.
Whorley also argued that the statute was facially overbroad because the distinction between receiving versus possessing is too vague in light of contemporary technology.196 The court agreed with him, noting how the distinction between viewing and receiving can become diluted;197 but because Whorley knowingly and intentionally sought out and received the obscene materials when using the computer, that issue was not before the court. Whorley also made an as-applied challenge to § 1462 with respect to Counts 56–75, which charged him with receiving obscene emails. He argued that text, standing alone, could not be deemed obscene, but failed to cite any authority to back up the proposition. The court noted that obscenity has never depended on the forum or medium of expression. So long as the text satisfies the Miller test, it is outside First Amendment protection.
Whorley then challenged 18 U.S.C. § 1466A(a)(1),198 arguing it was unconstitutional as applied to his cartoon drawings.199 Whorley’s argument rested on an isolated statutory interpretation, contending that the provision means the obscene material must depict actual children, not virtual children.200 The court disagreed with this construction. It reasoned that the provision criminalizes receipt of a visual depiction of any kind, specifically including drawings and cartoons.201 The majority’s opinion has been critiqued for ignoring the First Amendment issues at stake.202 The fact that someone can be put in jail for downloading cartoons seems to offend one’s “right to be let alone.”203
C. How the PROTECT Act Treats Adult VR Games
The current federal definition of what constitutes child pornography under the PROTECT Act has not been challenged before the Supreme Court.204 Although the Court ruled in Free Speech Coalition that images of computer-generated minors engaging in nonobscene sexual activity were protected under the First Amendment, the language in the PROTECT Act still covers that material. There are three categories of child pornography as defined under federal law: (1) a visual depiction involving the use of actual minors engaging in sexually explicit conduct;205 (2) a visual depiction as a digital image, a computer image, or a computer-generated image that either is or is indistinguishable from that of a minor engaging in sexually explicit conduct;206 or (3) a visual depiction of actual children that have been adapted in some form to portray them in sexual conduct.207
The full definition of child pornography under federal law is as follows:
“child pornography” means any visual depiction . . . where—(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.208
To see how engaging in graphic VR ageplay can produce child pornography under 18 U.S.C. § 2256(8)(B), a close reading of the Section is necessary.
First, Congress defined “sexually explicit conduct” differently for § 2256(8)(B). For example, “sexually explicit conduct” for § 2256(8)(A)—the “classic” definition—is defined as depictions of: (1) sexual intercourse; (2) bestiality; (3) masturbation; (4) sadistic or masochistic abuse; or (5) lascivious exhibition of the genitals or pubic area.209 However, sexually explicit conduct is defined differently for § 2256(8)(B) by adding the word “graphic” before descriptions of sexually explicit conduct. Under § 2256(2)(B), sexually explicit conduct means:
(i) graphic sexual intercourse . . . or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited; (ii) graphic or lascivious simulated; (I) bestiality; (II) masturbation; or (III) sadistic or masochistic abuse; or (iii) graphic or simulated lascivious exhibition of the anus, genitals, or pubic area of any person.210
Second, “graphic” means that a viewer can observe any part of the genitals or pubic area of any depicted person during any part when the sexually explicit conduct is depicted.211 The meaning does not require the depiction to be an actual person. Although the provision explicitly uses the word “person” in defining “graphic,” subsection 8(B) proscribes computer-generated images of “indistinguishable” minors. Third, an “indistinguishable” minor means “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.”212 Under this definition, the classic examples, Titanic, Romeo and Juliet, Lolita, and even Game of Thrones would still be protected. An ordinary person would know that if a television show or movie has a child actor, the production crew would not have the child-actor perform actual, graphic sexual intercourse or film the child in a “lascivious exhibition” of their genitals.213 It is an unreasonable position to believe that a production crew would film children in graphic, sexual activity; an ordinary person would know that they are using a body double.214 Fourth, the definition of an “indistinguishable minor” does not apply to cartoons, drawings, sculptures, or paintings. This language signals that this provision is not to be applied in situations where obscenity would suffice, because a cartoon can be found to be legally obscene if it satisfies the Miller test.215
III. PROPOSAL
The First Amendment should not protect the right to produce graphic, sexually explicit depictions of child sexual abuse. With the rise of photorealistic avatars, not only will adult VR games be eventually indistinguishable from filmed child abuse, but VR capabilities will also provide the user the physical experience of sexually abusing a child. Producers of adult VR games should not be allowed to employ photorealistic child-like avatars in sexually explicit VR games. These images can easily be saved and distributed across the internet, contributing to the child pornography distribution network. When child-like avatars in adult VR games look indistinguishable from actual children, and appear in graphic, sexually explicit conduct, the images displayed should be treated as child pornography as defined under 18 U.S.C. § 2256(8)(B).
VRLove and other adult VR games have graphic, sexually explicit features. Once the games start introducing photorealistic avatars, the users will be able to customize the appearance of their “partners,” allowing them to create avatars that look like minors. Therefore, players will have the opportunity to create a computer-generated depiction of a photorealistic child in graphic, sexually explicit activity. No child is abused when someone has virtual sex with a virtual minor, so no crime is being filmed and no depiction of that crime is being distributed. But to require actual child abuse to prohibit explicit, graphic depictions of realistic-looking child abuse is no longer an adequate standard. Advances in technology blur the line between real and digital photography. The government ought to be able to prevent this material from becoming easily accessible across the internet. Just like the Court found in New York v. Ferber, it is difficult to ascertain the value in a photo that shows a child engaged in graphic, sexually explicit conduct with an adult.
Currently, the avatars in adult VR games are distinguishable from real people. Because avatars must be indistinguishable from minors to fall within the definition of child pornography under 18 U.S.C. § 2256(8)(B), another approach would be to regulate the material under the PROTECT Act’s obscenity provision.216 This approach would certainly not conflict with Free Speech Coalition’s holding. It also would not require any change to First Amendment doctrine, as compared to this Note’s proposal. However, there are persuasive challenges to using obscenity as a way to regulate this material. Although Stanley has been narrowed to mean that there is no right to receive obscene material, whether through mail or by an “interactive computer service,” there is a compelling argument that Stanley should be reconsidered as a privacy case rather than a First Amendment case.217 More broadly, obscenity jurisprudence and the Miller test as applied to images on the internet has been widely criticized.218 As for images that can be considered legally obscene, what one looks at in the privacy of their home, whether on paper or on the computer screen, should be protected from government intrusion.219 If obscenity law is the only way to prevent the spread of graphic, realistic-looking images of child abuse, the justification for regulating the images could become diluted if Stanley is revised to protect situations like Whorley’s. Therefore, using § 2256(8)(B) is a better approach because there is no right to privately possess and privately produce child pornography.220
A. Challenges to Using Section 2256(8)(B) to Proscribe Graphic Sexual Ageplay
1. Adult VR Games Are the Same as Video Games
The Supreme Court in Brown v. Entertainment Merchants Association held that violent video games are afforded First Amendment protections.221 California enacted a statute that prohibited the sale or rental of violent video games to minors.222 It was written to prohibit video games that would fall under the Miller test.223 Associations involved in the video game industry brought a declaratory judgment action against the state, arguing that the statute was unconstitutional under the First and Fourteenth Amendments. Justice Scalia, writing for the majority, agreed.224 The California statute was not targeting obscene sexual material, but rather obscene violent material that could sometimes include sexual overtones.225 Justice Scalia reasoned that speech about violence cannot be considered obscene because, in order for something to be considered obscene, it needs to be sexual.226
California did not deny that video games qualified for First Amendment protections,227 but rather proposed that it was able to prohibit the sale of obscene materials to minors.228 Video games are interactive, and this feature gives minors the opportunity to not only participate in the depictions of violent expressions, but also choose and control how violent the material becomes.229 California argued that this feature presented a compelling social problem for the development of minors. This argument is similar to graphic adult VR porn because it allows the player to pick and choose the outcome of the scene.
The problem with using Brown v. Entertainment Merchants Association to challenge a conviction under § 2256(8)(B) for producing child pornography while playing graphic, sexually explicit adult VR games is that the material prohibited is sexually explicit, not violent. Section 2256(8)(B) does not add a new category of unprotected speech; rather, it defines an already proscribed category of unprotected speech: child pornography. Also, a flaw in California’s statute is that it only applies to sale of minors, the State agreed that the statute would be unconstitutional as applied to adults. Production of child pornography under § 2256(8)(B) does not depend on the age of the person who produced the material.
2. Virtual Ageplay As Private Sexual Expression
It is not definite that those who view child pornography also want to engage in sexual activity with a minor.230 It is also unclear if those who engage in virtual ageplay are the same people who want to abuse children in real life.231 One could argue that acting out one’s own private sexual fantasies inside the home is the type of behavior the substantive Due Process Clause protects under Lawrence v. Texas.232
Those who are open to speaking with reporters about their sexual desires believe that acting out their desires in the virtual world mitigates their desires to pursue their fantasies in real life.233 They view it as their only safe place to express their desires: “[f]or many, it feels like the only sexual channel that doesn’t risk incarceration or social alienation.”234 On the other hand, medical professionals believe lifelong treatment methods and a comprehensive therapy program are the best methods for managing pedophilic desires, “[s]itting alone at home, sinking hours into virtual worlds, could further isolate pedophiles from more reliable professional and social resources: therapy, community bonds, anti-androgen treatment.”235 However, individuals who have pedophilic impulses are afraid to come forward to health professionals due to mandatory reporting laws.236 Even if they do come forward, the resources are often stigmatized or inaccessible.237 By prohibiting graphic adult VR games, it could further push pedophiles into isolation, only making prevention measures worse.
However, this proposal is not about criminalizing thought. It is about prohibiting the production of child pornography as defined under § 2256(8)(B). People who have pedophilic impulses will always be part of American society, and figuring out ways to prevent them acting out their desires in the real world is necessary in order to eradicate child abuse. However, allowing individuals to produce a form of child pornography should not be the way in which that is accomplished.
CONCLUSION
The government is already able to prohibit private production of child pornography.238 This proposal does not call to prohibit new categories of speech. It rather calls for the definition of child pornography under 18 U.S.C. § 2256(8)(B) to be considered adequate in light of adult VR games and advances in VR technology. Someday soon players will be able to produce graphic depictions of realistic-looking images of children engaged in sexual conduct with adults. This material is not worth protecting under the First Amendment.