In Ashcroft v. Free Speech Coalition, the U.S. Supreme Court ruled two provisions of the Child Pornography Prevention Act unconstitutional. The Court found that a provision prohibiting any visual depiction that appears to depict a minor engaging in sexually explicit conduct was overbroad as it restricted materials such as movie scenes and Renaissance art. The Court also ruled that a provision prohibiting distributing materials in a manner implying they depict child pornography was overbroad as it restricted possession of materials based on how they were presented rather than their content.

1. Topic:
JUVENILES; FIRST AMENDMENT ISSUES; LITIGATION; SUPREME COURT DECISIONS;
OBSCENITY (LAW);
Location:
PORNOGRAPHY;
Scope:
Court Cases; Federal laws/regulations;
OLR Research Report
May 3, 2002
2002-R-0491
SUPREME COURT RULING ON CHILD PORNOGRAPHY
By: Christopher Reinhart, Associate Attorney
You asked for a summary of the U.S. Supreme Court's ruling on the federal Child
Pornography Prevention Act in Ashcroft v. Free Speech Coalition (No. 00-795,
April 16, 2002).
SUMMARY
In Ashcroft v. Free Speech Coalition, the U.S. Supreme Court considered two
provisions of the Child Pornography Prevention Act of 1996 (CPPA). The Court
ruled that these provisions were overbroad and unconstitutional under the First
Amendment.
The first provision prohibited any visual depiction (including a photograph,
film, video, picture, or computer or computer-generated image) that is, or
appears to be, of a minor engaging in sexually explicit conduct. The Court
stated that the First Amendment does not protect certain categories of speech
including obscenity, but the Court ruled that the CPPA does not meet the
requirements for banning obscenity. The Court stated that child pornography can
be prohibited because of the state's interest in protecting children from
exploitation in the production process. But the Court ruled that this was not
the case with the CPPA, which prohibits speech that does not record a crime and
does not create a victim by its production.
The Court also rejected a number of other arguments by the government that this
speech should be banned based of the types of harm it causes and the difficulty
in distinguishing it from pornography that involves real children. The Court
concluded that these harms were too indirect.
The second provision of the CPPA that was challenged prohibited any explicit
image advertised, promoted, presented, described, or distributed in a manner
giving the impression that it depicts a minor engaging in sexually explicit
conduct. The Court stated that the government did not offer a serious defense of
the provision and its arguments in support of the CPPA did not apply to this
provision. The Court stated that under this provision the work must be sexually
explicit but the content is otherwise irrelevant. The Court concluded that the
First Amendment requires a more precise restriction and this provision is
substantially overbroad.
Justice Kennedy wrote the Court's opinion supported by Justices Stevens, Souter,
Ginsburg, and Breyer. Other justices wrote separate concurring and dissenting
opinions. Please let us know if you would like more information on these
opinions.
IMAGES THAT APPEAR TO BE CHILD PORNOGRAPHY
The first challenged provision of the CPPA prohibits any visual depiction,

2. including a photograph, film, video, picture, or computer or computer-generated
image that is, or appears to be, of a minor engaging in sexually explicit
conduct (18 USC 2256(8)(B)). The Court stated that this provision does not
depend on how the image is produced and includes (1) virtual child pornography,
(2) Renaissance paintings, and (3) Hollywood movies filmed without any child
actors if a jury believed they appeared to be minors engaging in actual or
simulated sexual intercourse.
Obscentiy
The Court stated that generally pornography can be banned only if obscene. The
Court ruled that the CPPA could not be considered to be prohibiting obscenity
because it does not meet the requirements set out by the Court's rulings for
banning obscenity. In Miller v. California, the Court ruled that a work is
obscene if, taken as a whole, it appeals to the prurient interest, is patently
offensive in light of community standards, and lacks serious literary, artistic,
political, or scientific value (413 U.S. 15 (1973)).
The Court stated that the CPPA does not address the Miller requirements because
it does not (1) require that that the work appeal to the prurient interest; (2)
require that the work be patently offensive; or (3) provide exceptions for
serious literary, artistic, political, or scientific value.
The Court stated that teenage sexual activity and sexual abuse of children
inspired literary works, such as Romeo and Juliet, and contemporary movies, such
as Traffic and American Beauty. Whether or not the films violate the CPPA, the
Court stated that they explore themes within the sweep of the CPPA and a single
graphic depiction could subject the film's possessor to severe penalties without
considering the work's redeeming value. The Court stated that, under the First
Amendment, the artistic merit of a work does not depend on the presence of a
single explicit scene.
Virtual Child Pornography Distinguished from Child Pornography
The Court ruled in New York v. Ferber that pornography showing minors can be
prohibited whether or not the images are obscene because of the state's interest
in protecting children from exploitation in the production process (458 U.S. 747
(1982)).
The government argued that the CPPA prohibits speech that is virtually
indistinguishable from child pornography. The Court stated the in Ferber, the
production of the work and not its content was the target of the statute and the
ruling upheld a ban on production, distribution, and sale of child pornography
because it was intrinsically related to the sexual abuse of children. Child
pornography (1) made a permanent record of the child's abuse that would
circulate and continue to harm the child and (2) trafficking in it created an
economic motive for its production and the state had an interest in eliminating
the distribution network. The Court stated that Ferber in effect held that the
speech had a proximate link to the crime from which it came.
But the Court distinguished this case from Ferber because (1) the CPPA prohibits
speech that does not record a crime and does not create a victim by its
production and (2) virtual child pornography is not intrinsically related to the
sexual abuse of children. The government argued that the images can lead to
child abuse but the Court found this link to be contingent and indirect because
the harm does not necessarily flow from the speech but depends on some
unquantified potential for criminal acts.
The government also argued that the indirect harm was sufficient because child
pornography is rarely valuable speech. The Court noted that Ferber (1) was based
on how the child pornography was made and not what it communicated and (2) did
not hold that child pornography was by definition without value. The Court
stated that Ferber recognized that some works might have significant value and
relied on virtual images as an alternative and permissible means of expression.

3. Other Arguments
The government argued that pedophiles may use virtual child pornography to
seduce children. The Court stated that the government seeks to protect children
not from the speech but from those who would commit crimes, which is conduct
that is criminal apart from any link to the speech. The Court stated that the
government cannot prohibit speech within the rights of adults because it may
reach children. The Court stated that the ban is not narrowly drawn because the
object is to prohibit illegal conduct but the restriction goes well beyond that
by restricting speech available to law-abiding adults.
The government argued that this material whets the appetites of pedophiles and
encourages them to engage in illegal conduct. The Court stated that the mere
tendency of speech to encourage illegal acts is not sufficient to ban it. The
Court stated that the government can prohibit speech advocating the use of force
or violation of law only if it is intended to incite or produce imminent lawless
action and it is likely to do so. But the Court stated that the government
demonstrated only a remote connection between the speech and any resulting child
abuse.
The government argued that eliminating the market for child pornography required
prohibiting virtual images because they (1) are indistinguishable from the real
ones, (2) are part of the same market, (3) are often exchanged, and (4) promote
traffic in work involving real children. But the Court stated that if the
virtual images were the same as real ones, the illegal images would be driven
from the market because few pornographers would risk prosecution by abusing real
children. The Court stated that in Ferber, creating the speech was child abuse
but in this case there is no underlying crime.
The government also argued that computer imaging makes it very difficult to
prosecute those who produce child pornography with real children and both type
of images must be banned. The Court stated that the government cannot suppress
protected speech because it resembles unprotected speech. The Court stated that
the Constitution requires the reverse, the possible harm to society in
permitting some unprotected speech to go unpunished is outweighed by the
possibility that protected speech may be muted.
The government also argued that the statute did not suppress speech but shifted
the burden to the defendant to prove that the speech was lawful. The statute
provides an affirmative defense that allows a defendant to avoid conviction for
non-possession offenses by showing that the materials were produced using adults
and were not distributed in a manner conveying the impression that they depict
real children. But the Court stated that requiring the defendant to prove this
raised constitutional difficulties by imposing the burden on the defendant to
prove his speech was not unlawful. The Court stated that a defendant may not be
able to establish the identity of the actors or whether they exist unless he was
the producer of the work. Even if this provision could save the statute, the
Court stated that the defense is incomplete and insufficient because it does not
apply to a defendant charged with possession. The Court stated that it also does
not protect someone who uses computer imaging or other means that do not involve
adults who appear to be minors. The Court stated that the defense leaves
unprotected a substantial amount of speech not tied to the government's interest
in distinguishing images produced using real children from virtual ones.
The Court concluded that this provision of the CPPA covered material that did
not fall into the categories of obscenity as established by Miller or child
pornography as established by Ferber and the government's reasons for limiting
the freedom of speech were not justified by the Court's precedents or First
Amendment law. The Court concluded that the provision of the CPPA abridges a
substantial amount of lawful speech.
IMAGES THAT GIVE THE IMPRESSION THAT THEY DEPICT CHILD PORNOGRAPHY

4. The second provision of the CPPA that was challenged prohibits any sexually
explicit conduct advertised, promoted, presented, described, or distributed in a
manner that conveys the impression it depicts a minor engaging in sexually
explicit conduct (18 USC 2256(8)(D)).
The Court stated that under this provision the work must be sexually explicit
but the content is otherwise irrelevant. The Court stated that the government
did not offer a serious defense of the provision and its arguments in support of
the CPPA did not apply to this provision. The Court noted that an earlier ruling
established that pandering can be relevant to whether certain material is
obscene but the CPPA's provision prohibits a substantial amount of speech beyond
that rationale. Under the CPPA, the Court stated that it is illegal for someone
to have this material even if he has no responsibility for how the material was
marketed, sold, or distributed.
The Court stated that a film could be prohibited even if it contains no youthful
actors if its box suggests it is a prohibited movie. Under this statute, the
prohibition depends on how the speech is presented rather than what it depicts.
The Court stated that possession is a crime even when the possessor knows the
movie is mislabeled.
The Court concluded that the First Amendment requires a more precise restriction
and this provision is substantially overbroad.
CR:ts