by Max Roberts, Senior Associate
Although the term “child sex robot” sounds like it belongs in a dystopian Margaret Atwood novel, the existence of child sex robots is indeed a reality. Companies in Asia, specifically Japan and China, already have a thriving industry in the manufacture and distribution of realistic child-sex dolls. Buyers even have the option of ordering customized dolls based on pictures provided to the manufacturer. In the United Kingdom, where the importation of child sex dolls is prohibited because a court deemed the dolls “obscene,” 128 child sex dolls were seized in 2017 alone. One of the main manufacturers of child sex dolls, Japanese national Shin Takagi, has been manufacturing and shipping child sex dolls around the world for over ten years.
On December 14, 2017, Don Donovan, a United States Representative from New York, introduced the Curbing Realistic Exploitative Electronic Pedophilic Robots Act, appropriately abbreviated as the “CREEPER Act,” into the U.S. House of Representatives. The CREEPER Act is designed to ban the importation and 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.” On June 13, 2018, the House of Representatives unanimously passed the CREEPER Act, and the following day the Act was read into the Senate and referred to the Senate Judiciary Committee, where it now resides.
The Senate Judiciary Committee faces a twofold question: should the government ban child sex robots, and is it constitutional to do so?
II. The Policy Determination
Two commonly posited reasons for generally disfavoring or banning sex robots exist. First, the robots reduce human contact and provide users with an unrealistic view of human interactions. Second, the robots encourage users to participate in actions that are inappropriate and often downright illegal, thus leading to increased incidents of those behaviors with actual humans.
The first rationale may be an attempt to protect sex robot users from themselves. Using sex robots leads to a breakdown in a person’s ability to experience real intimacy and connection, primarily the ability to have stable familial relationships—the bedrock of society. The second rationale is an attempt to protect women and children from crimes of sexual violence. Committing a sexual crime against a sex robot is in a sense a gateway “crime,” the normalization of which will lead to the same crimes committed against actual people. Advocates of sex doll deregulation argue, however, that sex robots will serve as therapeutic devices for lonely people, prevent the spread of STDs, and actually deter crimes of sexual violence by providing a “safe” alternative.
For purposes of child sex robot legality, the crucial policy debate is whether crimes perpetrated against a sex robot make such acts perpetrated against actual persons more or less likely. Existing academic studies support both arguments, but no strong scientific evidence leans either way. Fortunately, however, the House of Representatives made several Congressional findings of fact that support the position of anti-sex robot advocates—namely, that mistreatment of child sex robots would normalize and desensitize such behavior to the detriment of actual children and society as a whole.
III. Constitutional Question
Congress has the power to regulate the importation and manufacture of certain goods under the Foreign Commerce Clause and the Interstate Commerce Clause respectively. Congress’s commerce clause powers do not, however, allow it to violate personal protections enshrined elsewhere in the Constitution. The constitutional issue the CREEPER Act raises, some commentators argue, is that it violates the First Amendment protection of free speech. The main support for this proposition comes from the U.S. Supreme Court’s decision in Ashcroft v. Free Speech Coalition.
In Ashcroft, the Supreme Court struck down a statute banning “virtual child pornography.” The statute in question was an amendment to 18 U.S.C. § 2256, called the Child Pornography Prevention Act (“CPPA”). The CPPA prohibited “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture” that “is, or appears to be, of a minor engaging in sexually explicit conduct. The Supreme Court treated the CPPA as a restriction on speech—a conclusion that could hardly be avoided considering the CPPA contained a specific clause prohibiting Hollywood movies from containing depictions of sexual intercourse that a jury “reasonably believed could be a minor.” Such a provision—regulating what may appear in a Hollywood movie in the 21st century—is a clear restriction on speech.
Once the Court recognized the CPPA as a restriction on speech, it acknowledged only two valid free speech exceptions it could use to uphold the CPPA. The Court would either have had to find all activities the CPPA covered to be obscene under the Miller test, or find that all the activities the CPPA covered exploited real children in the course of doing the activity. Any other finding would have meant the statute was “overbroad” because it prohibited constitutionally protected free speech activities. Ultimately, the Court determined that neither free speech exception justified the CPPA.First, not all activities or situations the CPPA covered are obscene; for example, a Renaissance-era painting of a mythological event would fall under the CPPA via a clear reading of the statute, but clearly is not obscene. Second, as long as producers do not use actual minors to create the image then there is no exploitation of children. Thus, the statute was struck down as a First Amendment violation.
Applying the Ashworth logic to the CREEPER Act in a superficial manner would lead to the same conclusion. No actual children are exploited in the production of the dolls, and the language of the statute contains no carve outs for dolls that are used for artistic or literary purposes. It would therefore seem that the CREEPER Act is unconstitutional. An analysis like the one above, however, is asking the wrong question. The question is not whether the CREEPER Act may be upheld as a restriction on free speech; rather, the question is whether the shipment of child sex dolls is speech—it is not.
Although courts have interpreted the term “speech” very broadly, it does not include every possible act a person may undertake. For conduct—like buying and selling child sex dolls—to receive free speech protections, it must contain some form of expressive activity. The CREEPER Act does not prohibit any expressive activity. This intricacy is the chief factual distinction between the CREEPER Act and the CPPA. The CPPA expressly purported to ban “depictions” of underage sexual activity in media such as film, video, photograph, or picture. These are quintessential forms of speech, and as such, the Supreme Court had no choice but to engage in a very strict free speech analysis in Ashcroft. Courts will approach any Congressional act attempting to so brazenly restrict traditionally artistic media with a measure of suspicion. Although the Supreme Court has shown a willingness in recent years to expand the definition of what constitutes speech, in Buckley v. Valeo and Doe v. Reed, that expansion is focused on protecting activities implicating the legitimacy and participation in the political process. Such an implication cannot be found here.
Two additional appellate decisions support the constitutionality of the CREEPER Act. The first is the decision of the U.S. Court of Appeals for the Eleventh Circuit in South Florida Free Beaches v. Miami. In South Florida Free Beaches, the Eleventh Circuit upheld a ban on nudity in the face of the plaintiffs’ challenge that the ban abridged their First Amendment right to “communicate their philosophy that the human body is wholesome.” The court disagreed that the ban raised First Amendment issues, saying that a restriction on conduct had to be attached to some sort of clear expressive activity, such as dance or theater. The mere act of walking around in the nude did not constitute expression. Similarly, the mere act of buying, selling, or manufacturing a child sex doll does not constitute expression.
The CREEPER Act may also be analogized to widely accepted legislative restrictions on the buying, selling, or manufacturing of illicit substances. The restriction on illicit substances goes even further, however, often prohibiting their possession and use. Nonetheless, the analogy is apt when considering the relationship between the CREEPER Act and the CPPA. Just as the Court struck down CPPA restrictions on depictions of underage sexual conduct, so have courts struck down restrictions on depictions of drug use. The act of buying and selling the illicit substance itself, however, would never be confused with speech. Likewise, the buying and selling of child sex dolls would never never be confused with speech.
The Senate should pass the CREEPER Act. In addition to the unfavorable optics of child sex robots, experts believe that use of child sex robots could normalize the sexual mistreatment of children. The House of Representatives unanimously agrees. The Constitution protects art and symbolic, meaningful expression—not commercial sex dolls. The Senate should thus uphold the Constitution and pass the CREEPER Act.
 See Margaret Atwood, The Handmaid’s Tale (1985).
 Marie-Helen Maras & Lauren R. Shapiro, ‘Shadow’ Trade in Child Sex Dolls Should be Banned, Say Profs, Crime Rep. (Jan. 24, 2018), https://thecrimereport.org/2018/01/24/the-growing-danger-of-child-sex-dolls/ [https://perma.cc/FU7F-LVQ4].
 Roc Morin, Can Child Dolls Keep Pedophiles from Offending?, Atlantic (Jan. 11, 2016), https://www.theatlantic.com/health/archive/2016/01/can-child-dolls-keep-pedophiles-from-offending/423324/ [https://perma.cc/MVF6-THFE].
 CREEPER Act of 2017, H.R. 4655, 115th Cong. (2017).
 Chantal Cox-George & Susan Bewley, I, Sex Robot: The Health Implications of the Sex Robot Industry, 44 BMJ Sexual & Reprod. Health 161, 161–64 (2018).
 Id. See also Maras & Shapiro, supra note 2.
 Bruce Y. Lee, In Case You Are Wondering, Sex With Robots May Not Be Healthy, Forbes (June 5, 2018, 4:08 AM), https://www.forbes.com/sites/brucelee/2018/06/05/in-case-you-are-wondering-sex-with-robots-may-not-be-healthy/#6097cd7f1f6b [https://perma.cc/7NUX-C73H].
 CREEPER Act of 2017, H.R. 4655, 115th Cong. § 2 (2017).
 Eric Goldman, The “CREEPER Act” Would Be Yet Another Unconstitutional Law from Congress (Guest Blog Post), Tech. & Marketing L. Blog, https://blog.ericgoldman.org/archives/2018/06/the-creeper-act-would-be-yet-another-unconstitutional-law-from-congress-guest-blog-post.htm [https://perma.cc/9EGQ-69ET].
 Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
 Under the Miller test, named for Miller v. California, 413 U.S. 15 (1973), the government must prove that the “work, taken as a whole, appeals to the prurient interest, is patently offensive in light of community standards, and lacks serious literary, artistic, political, or scientific value.” Id. at 25 (citations omitted).
 New York v. Ferber, 458 U.S. 747 (1982).
 Ashcroft, 535 U.S. at 239.
 Id. at 245.
 Of course, not everyone shares this view of Renaissance-style art. See Parks and Recreation episode Jerry’s Painting, and the comedic reaction of conservative local leader Marcia Langman to a Renaissance-style painting containing nudity. See Parks and Recreation (NBC television broadcast Apr. 28, 2017) (season 3, ep. 11) (comedic reaction of conservative local leader Marcia Langman to a Renaissance-style painting containing nudity).
 Ashcroft, 535 U.S. at 245.
 The potential child labor used to create the dolls in Asia is an issue for another blog post.
 Goldman, supra note 13.
 Texas v. Johnson, 491 U.S. 397 (1989).
 Id. The Supreme Court in Johnson focused on the need for an act to have political, religious, or other ideological significance for the Court to classify the act as expressive speech.
 Ashcroft v. Free Speech Coalition, 535 U.S. 234, 257 (2002).
 See Buckley v. Valeo, 424 U.S. 1 (1976) (holding that campaign contributions were speech).
 S. Fla. Free Beaches v. City of Miami, Fla., 548 F. Supp. 53 (S.D. Fla. 1982).
 See Guiles v. Marineau, 461 F.3d 320 (2d. Cir. 2006) (holding that a t-shirt depicting George W. Bush as a chicken ingesting cocaine was protected speech).