Supreme Court Cases Dealing With Child Pornography

In New York v. Ferber (1982) 458 U.S. 747, the United States Supreme Court determined that "the test for child pornography is separate from the obscenity standard enunciated in Miller v. California, 413 U.S. 15 " (id. at p. 764) and production and distribution of child pornography is not entitled to First Amendment protection. (Ferber, at pp. 764-765.) Thus, under Ferber, "pornography showing minors can be proscribed whether or not the images are obscene under the definition set forth in Miller v. California (1973)." (Free Speech Coalition, supra, 535 U.S. at p. 240.) In reaching its holding in Ferber, the Supreme Court recognized that "in recent years, the exploitive use of children in the production of pornography has become a serious national problem." (Ferber, supra, 458 U.S. at p. 749.) It was aware that "use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child." (Id. at p. 758, fn. omitted.) The court declared that "the prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance." (Id. at p. 757.) It concluded that "the distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children" because, for one thing, "the materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation." (Id. at p. 759.) The court noted: "Sexual molestation by adults is often involved in the production of child sexual performances. When such performances are recorded and distributed, the child's privacy interests are also invaded." (Id. at p. 758, fn. 9.) The court observed that "a sexually explicit depiction need not be 'patently offensive' in order to have required the sexual exploitation of a child for its production." (Id. at p. 761.) But the Supreme Court in Ferber made clear that there were "limits on the category of child pornography which, like obscenity, is unprotected by the First Amendment." (Ferber, supra, 458 U.S. at p. 764.) It stated that "the distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection." (Id. at pp. 764-765, italics added.) Following Ferber, in Osborne v. Ohio (1990) 495 U.S. 103, the Supreme Court upheld an Ohio law proscribing the possession and viewing of child pornography. Its decision was predicated on the important state interest "in protecting the victims of child pornography" (id. at p. 108) and on the state's interest in encouraging the destruction of child pornography so it could not be used by pedophiles to "seduce other children into sexual activity" (id. at p. 111). Thus, although "the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime" (Stanley v. Georgia (1969) 394 U.S. 557, 568), the government may constitutionally criminalize possession of child pornography. (Osborne v. Ohio, supra, 495 U.S. at p. 111.) In refusing to extend Ferber and Osborne to "virtual child pornography," the Supreme Court in Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234 emphasized that the "CPPA prohibits speech that records no crime and creates no victims by its production." (Free Speech Coalition, supra, 535 U.S. at p. 250; see United States v. Williams, supra, 553 U.S. at p. 289 provision held invalid in Free Speech Coalition because "the child-protection rationale for speech restriction does not apply to materials produced without children".) The court emphasized that "Ferber's judgment about child pornography was based upon how it was made, not on what it communicated" and Ferber "reaffirmed that where the speech is neither obscene nor the product of sexual abuse, it does not fall outside the protection of the First Amendment. " (Free Speech Coalition, at pp. 250-251.) In Free Speech Coalition, the Supreme Court found it significant that Ferber had "recognized some works in this child pornography category might have significant value , but relied on virtual images--the very images prohibited by the CPPA--as an alternative and permissible means of expression: 'If it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized. Simulation outside of the prohibition of the statute could provide another alternative.' Id., at 763." (Free Speech Coalition, supra, 535 U.S. at p. 251.) It stressed that "Ferber, then, not only referred to the distinction between actual and virtual child pornography, it relied on it as a reason supporting its holding." (Ibid.) The Supreme Court rejected the government's arguments that (1) "CPPA is necessary because pedophiles may use virtual child pornography to seduce children" (Free Speech Coalition, supra, 535 U.S. at p. 251), (2) the act's "objective of eliminating the market for pornography produced using real children necessitates a prohibition on virtual images as well" because virtual images are "indistinguishable from real ones" (id. at p. 254), and (3) child pornography prosecutions will be very difficult unless both virtual and actual images are prohibited because it will be hard to establish that an image is of an actual child (ibid.). The court concluded that none of those arguments justified criminalizing the protected speech of "virtual child pornography" and held that two provisions of the federal CPPA were unconstitutionally overbroad. (535 U.S. at pp. 256-258.) The Supreme Court made clear that the state's interest in protecting children that justifies restricting free speech is inapplicable to materials produced without children. (Free Speech Coalition, supra, 535 U.S. at pp. 250-251, 254.) It explained: "Virtual child pornography is not 'intrinsically related' to the sexual abuse of children, as were the materials in Ferber. 458 U.S., at 759. While the Government asserts that the images can lead to actual instances of child abuse, see infra, at 251-254, the causal link is contingent and indirect." (Id. at p. 250.) It stated that "in the case of the material covered by Ferber, the creation of the speech is itself the crime of child abuse ... ." (Id. at p. 254.) In Free Speech Coalition, the United States Supreme Court had no occasion to decide whether possession of adult pornography edited by superimposing an actual child's head on an adult body is protected by the First Amendment. In that case, there was "no underlying crime at all" and it did not need to "consider where to strike the balance ... ." (Free Speech Coalition, supra, 535 U.S. at p. 254.)