Ashcroft v. Free Speech Coalition
In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) the United States Supreme Court held that some of the language of the Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. 2251 et seq., extending the federal prohibition against child pornography to sexually explicit images that appear to depict minors but produced without using real children, unconstitutionally infringed upon free speech.
The Court struck down 18 U.S.C. 2256(8)(B) and 2256(8)(D) which respectively defined child pornography to include a visual depiction of what "appears to be" a minor engaging in sexually explicit conduct and a visual depiction that is "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a depiction of a minor engaging in sexually explicit conduct".
The Court held these two definitions were overly broad and, therefore, unconstitutional because they encompassed protected expression. 122 S. Ct. at 1405-06.
The Court, however, did not address other provisions of the CPPA prohibiting material involving actual children.
The high court struck down as unconstitutional certain provisions of the Child Pornography Prevention Act of 1996 (CPPA) (18 U.S.C. 2251 et seq.). The court concluded that the CPPA was overbroad in the types of materials it deemed obscene and, therefore, illegal under that federal law.
The court noted that the year before the opinion was written, one of the Academy Award nominees for Best Picture was Traffic (USA Films 2000), in which a 16-year-old addict was trading sex for drugs. It observed further that the year before that, the film American Beauty (DreamWorks Pictures 1999) won the Academy Award for Best Picture, a movie in which "a teenage girl engages in sexual relations with her teenage boyfriend, and another yields herself to the gratification of a middle-aged man. The film also contains a scene where, although the movie audience understands the act is not taking place, one character believes he is watching a teenage boy performing a sexual act on an older man." (Ashcroft, at pp. 247-248.)
In Ashcroft, the United States Supreme Court pointed out this Shakespeare work "has inspired no less than 40 motion pictures, some of which suggest that the teenagers consummated their relationship." (Ashcroft, supra, 535 U.S. at p. 247.)
The Supreme Court reemphasized that it is the governmental interest in preventing physical and psychological harm arising from the use of real children in child pornography that underlies the exemption of child pornography from First Amendment protection.
The Court there held that this legitimate interest does not similarly justify prohibitions against sexually explicit images that appear to be children but do not, in fact, involve the use of children in their production. The legislation under scrutiny in Ashcroft was the Child Pornography Prevention Act, 18 U.S.C. 2251, et seq. (the CPPA), which proscribed any visual depiction that is, or appears to be, of a minor engaging in sexually explicit conduct, including computer-generated images and photos or films of adults who appear to be minors.
The Supreme Court held that this provision of the CPPA violated the First Amendment because the proscription was not limited to obscenity as defined in Miller or true child pornography, which entails the use of real children. Because the proscription of the CPPA was not limited to obscenity, the Court said, it prohibited speech that possessed "serious literary, artistic, political, or scientific value."
The Court observed that themes of teenage sexual activity and sexual abuse of children "have inspired countless literary works," including films based on William Shakespeare's Romeo and Juliet and recent academy award-winning movies, the possession of which could be subject to severe punishment under the CPPA without inquiry into the work's redeeming value.
The Supreme Court rejected the government's stance that the speech prohibited by the CPPA is indistinguishable from child pornography, which may be banned without regard to whether it possesses literary or artistic merit.
The Court explained that the prohibition of child pornography is constitutional because child pornography inflicts injury upon the children used in its production and "the fact that a work contains serious literary, artistic, or other value does not excuse the harm it caused to its child participants."
In child pornography, the Court said, "the images are themselves the product of child sexual abuse," and its distribution and sale, as well as its production, may be banned because those acts are intrinsically related to the sexual abuse of children and exacerbate the harm to the child victims. Id.
In contrast, the Court said, the CPPA prohibited speech that recorded no crime and created no victims by its production. Therefore, the Court concluded, the CPPA found no support in Ferber, which had reaffirmed that speech which is neither obscene nor the product of sexual abuse retains First Amendment protection.
The Free Speech Coalition court was likewise unpersuaded by the government's argument that "virtual" child pornography stimulates the appetites of pedophiles and may encourage them to engage in illegal conduct. This rationale would not sustain the CPPA because "the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it."
In Free Speech Coalition, the Supreme Court cautioned that "First Amendment freedoms are most in danger when the government seeks to control thoughts or to justify its laws for that impermissible end."
The Court held that, because of First Amendment protections, Congress could not punish this type of erotica, since it does not involve the exploitation of real children. 535 U.S. at 249-251, 256.
The U.S. Supreme Court implied in dicta that such a prohibition was constitutional. Ashcroft, 535 U.S. at 242.
Specifically, Ashcroft noted in dicta as follows:
"18 U.S.C. Section 2256(8)(C) prohibits a more common and lower tech means of creating virtual images, known as computer morphing.
Rather than creating original images, pornographers can alter innocent pictures of real children so that the children appear to be engaged in sexual activity.
Although morphed images may fall within the definition of virtual child pornography, they implicate the interests of real children and are in that sense closer to the images in Ferber.
Respondents do not challenge this provision, and we do not consider it." Id.