In 1982, when the Supreme Court first upheld a state law banning child pornography, nobody was thinking about the possibility of making child porn without a kid. But since then wonders of modern technology have brought us virtual child porn: images that look exactly like children engaging in sexual conduct but are created by computers, without using real children. This has teed up a new issue for the court: does the First Amendment right to free speech protect the creation, distribution and possession of computer-created child porn?

Five years ago Congress expanded the federal child-porn law to cover the virtual variety. The Child Pornography Prevention Act of 1996 bans any image that "appears to be" sexually explicit conduct by an actual child. Congress found not only that pedophiles use such images to whet their own appetites and lure children into sexual activities, but also that virtual child porn can "desensitize the viewer to the pathology of sexual abuse or exploitation of children."

Rejecting these justifications as constitutionally insufficient, a panel of the U.S. Court of Appeals for the Ninth Circuit, sitting in San Francisco, voted 2-1 in December 1999 to strike down the 1996 statute. The decision came in a lawsuit brought by the Free Speech Coalition, an adult-entertainment trade association, along with a painter of nudes, the publisher of a book on nudism and a photographer. Only "the protection of the actual children used in the production of child pornography" can justify a ban on child porn, the Ninth Circuit panel held. In seeking Supreme Court review, the Justice Department countered that the ban on virtual child porn was necessary to protect "children who may be abused as a result of the dissemination of visual depictions of child pornography." The Supreme Court agreed in January to hear the case.