The “CREEPER Act” Would Be Yet Another Unconstitutional Law from Congress (Guest Blog Post)
by guest blogger Alex F. Levy
On June 13, 2018, the U.S. House of Representatives unanimously passed legislation targeted at so-called “child sex dolls.” The Curbing Realistic Exploitative Electronic Pedophilic Robots (CREEPER) Act would amend 18 U.S.C. § 1462 (which currently restricts certain obscene materials) to prohibit the importation or transportation of “anatomically-correct doll[s], mannequin[s], or robot[s], with the features of, or with features that resemble those of, a minor, intended for use in sexual acts.” (Sec. 3)
The bill’s Congressional Findings include allegations that said dolls “cause the rape of minors” and that they “not only lead to rape, but they make rape easier by teaching the rapist about how to overcome resistance and subdue the victim.” In broader terms, advocates of the legislation warn of the “vile child sex doll…[that] endangers the most innocent among us.” The threat, as conceived, is both pervasive and insidious: Don Donovan, the legislation’s author, called for taking “necessary steps to stop these sickening dolls from reaching our communities,” suggesting that the CREEPER Act may be the only thing keeping child sex dolls from (not just our bedrooms) but the local little league team as well.
The child sex doll, as conjured by advocates of the CREEPER Act, is perhaps the ultimate modern boogeyman: a robot designed to awaken people’s darkest impulses and turn them violently against children. (To maximize spookiness, it does all this while outfitted as an innocent child.) But the creature described in the bill’s title, namely, an “electronic…robot” that is “pedophilic” — is far afield of what the legislation actually prohibits, namely, the importation and transportation of a subset of anatomically-correct dolls designed to serve as stand-in victims. Robots cannot be pedophilic — robots do not have sexual preferences (and for what it’s worth, they are all electronic). Moreover, the Congressional Findings would seem to suggest that the problem is that the dolls are practice prey, not predators. So what, exactly, is Congress trying to address?
The Congressional Findings
The Congressional Findings supporting the CREEPER Act are a jumble of unsubstantiated, misleading, and irrelevant claims. In fact, the jury is still out on the effect that access to child sex robots has on offenses against children. While some claim that they cause users “to engage in sicker and sicker behavior,” others have postulated that they may actually decrease offenses against children (by serving as substitutes). Importantly, however, the law is unconstitutional regardless of which is true. For this reason, the analysis below will stipulate to the worst case scenario whenever possible.
Addressing each finding in turn:
(1) There is a correlation between possession of the obscene dolls, and robots, and possession of and participation in child pornography.
This may be true, but does not mean that obscene dolls and robots cause people to possess or participate in child pornography. Both child sex dolls and child pornography suggest a sexual interest in children, making pedophilia (a sexual interest in children, often not acted-upon) a likely confounding variable. Moreover, the legislation is not limited to obscene dolls. This becomes important in the First Amendment analysis (below).
(2) The physical features, and potentially the “personalities” of the robots are customizable or morphable and can resemble actual children.
Assume this is true.
(3) Some owners and makers of the robots have made their children interact with the robots as if the robots are members of the family.
Assume this is true.
(4) The robots can have settings that simulate rape.
What does it mean to “simulate rape” of an object? But okay, assume this is true.
(5) The dolls and robots not only lead to rape, but they make rape easier by teaching the rapist about how to overcome resistance and subdue the victim.
Absent a radical redefinition of “rape” to include sexual acts with objects, the claim that these dolls “lead to rape” is completely unsubstantiated. As for the second clause, it is difficult to imagine how a doll could teach a rapist how to subdue a child, but again, assume this is true.
(6) For users and children exposed to their use, the dolls and robots normalize submissiveness and normalize sex between adults and minors.
What does “normalize” mean? Assume this is true.
(7) As the Supreme Court has recognized, obscene material is often used as part of a method of seducing child victims.
True (at least partly), but irrelevant for two reasons. First, as noted above, what’s being restricted here is not obscene material. But in any event, while the Supreme Court indeed noted in 2002 that “pedophiles may use virtual child pornography to seduce children,” it did so in the course of finding that that fact alone did not justify banning virtual child pornography. (See Ashcroft v. ACLU, 535 U.S. 234 (2002) discussed below.)
(8) The dolls and robots are intrinsically related to abuse of minors, and they cause the exploitation, objectification, abuse, and rape of minors.
Let’s stipulate to the intrinsic relationship (whatever that means). There is still no evidence — nor any effort to marshal any — to suggest that they cause “exploitation, objectification, abuse, and rape of minors.”
To review: We’re stipulating (for purposes of this discussion) to Congress’s claims that child sex dolls have customizable personalities, are sometimes made to interact with children, have settings that simulate rape, make rape easier, and “normalize” submissiveness and sex between adults and minors. (In reality, all of the above are highly questionable, but that doesn’t matter to the constitutional analysis.)
First Amendment Analysis
The CREEPER Act seeks to amend 18 U.S.C. § 1462 to outlaw the importation or transportation of any “anatomically-correct doll, mannequin, or robot, with the features of, or with features that resemble those of, a minor, intended for use in sexual acts.” It is unconstitutional under the First Amendment.
Of course, the First Amendment does not protect all speech; of particular relevance here, the First Amendment protects neither obscene speech nor real child pornography. Additionally, it is important to note that not all depictions are speech in the first place. Nevertheless, the CREEPER Act is plainly unconstitutional.
The material prohibited under the CREEPER Act is not limited to what’s obscene.
Obscene material is not protected under the First Amendment. (See Miller v. California, 412 U.S. 15, 18 (1973)). In 1973, the Supreme Court defined obscene material to be that which 1) “the average person, applying contemporary community standards would find…taken as a whole, appeals to the prurient interest”; 2) “depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law” and 3) “taken as a whole, lacks serious literary, artistic, political, or scientific value.” (Id. at 24.) The dolls prohibited under the CREEPER Act do not “depict…sexual conduct;” furthermore, the Act does not create exceptions for dolls which might, as a whole, have serious “literary, artistic, political, or scientific value.” If a child sex doll were repurposed for artistic or scientific use, it would still be prohibited under the CREEPER Act so long as it was intended for sexual use. Therefore, child sex dolls are not subject to the obscenity carve-out under the First Amendment.
The material prohibited under the CREEPER Act is not limited to real child pornography.
Child pornography produced using real children is not protected under the First Amendment. (see New York v. Ferber, 458 U.S. 747, 747-748 (1982)). This is true regardless of whether the material is obscene, as defined under Miller. (Id. at 761.) However, Ferber specifically addresses material produced using children. Indeed, the “production of the work, not its content, was the target of the statute.” (Ashcroft at 249.) Child sex dolls are obviously not produced using real children, so the Ferber carve-out does not apply.
The CREEPER Act regulates speech based on its content; therefore, it is subject to strict scrutiny.
The CREEPER Act restricts the importation and transportation of 1) anatomically-correct dolls (or mannequins or robots) 2) that resemble minors 3) intended for use in sexual acts. Despite the fact that it regulates an object (as opposed to a depiction), the legislation in fact targets certain content. The legislation only applies to dolls that depict a certain thing — minors. Dolls that are otherwise similar (i.e. anatomically correct, intended for use in sexual acts) that depict adults — or, for that matter, extraterrestrials or animals — would not be subject to the same restrictions. For that reason, a restriction on child sex dolls must pass muster under the First Amendment.
Content-based restrictions on speech are subject to strict scrutiny: they must be the least restrictive means to further a compelling interest. (See e.g. Sable Communications v. FCC, 492 U.S. 115, 126 (1989)). The prevention of child rape is undoubtedly a compelling government interest. (See Ferber, 458 U.S. 747, 757-758) Accordingly, “Congress may pass valid laws to protect children from abuse, and it has.” (Ashcroft at 235) But Congress may not restrict material that merely increases the possibility that this crime may arise. In invalidating a law forbidding certain types of virtual child pornography, the Court held that the mere “prospect of crime…by itself does not justify laws suppressing protected speech.” (Id.) “When the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply ‘posit the existence of the disease sought to be cured.’…It must demonstrate…that the regulation will in fact alleviate these harms in a direct and material way.” (Turner Broadcasting System v. FCC, 512 U.S. 627 (1994) (internal citations omitted))
The CREEPER Act closely resembles the Child Pornography Prevention Act of 1996 (CPPA), which prohibited the possession and distribution of images that appear to depict children engaged in sex acts, but which are in fact produced without real children involved. (See Ashcroft at 239-240 (2002)) In particular, the CREEPER Act’s Congressional Finding that child sex dolls “normalize sex between adults and minors” echoes the CPPA’s Congressional Findings included the claim that virtual pornography could convince children sex between adults and minors is “fun.” (Id. at 241) But in Ashcroft v. ACLU, the Supreme Court struck down the CPPA, holding that “[t]he Government has shown no more than a remote connection between speech that might encourage thoughts or impulses and any resulting child abuse.” (Id. At 253) The Court’s holding in Ashcroft that, absent a “direct connection, the Government may not prohibit speech on the ground that it may encourage pedophiles to engage in illegal conduct” plainly renders the CREEPER Act unconstitutional. (Id. At 253-254)
It is widely understood that offensive viewpoints and “hate speech” are protected under the First Amendment. Child sex dolls present a new kind of challenge, testing not our ability to tolerate dissent, but our willingness to stand up for what is, to many of us, simply disgusting. Much of the substantive critique of the CREEPER Act has focused on the fact that access to child sex dolls may in fact decrease assaults on real children, insofar as sex dolls serve as substitutes for the real thing. If that is the case, they should certainly be allowed as a matter of public policy. But ultimately, that question is irrelevant to the constitutional analysis. Child sex dolls are protected under the First Amendment.