Aschroft V. Free Speech Coalition

Introduction:

In 1996, the Child Pornography Prevention Act (CPPA) added two categories to the definition of child pornography. The first category prohibited was any visual depictions of child porn, including photos, videos, and even that created without the involvement of any children, such as drawn or computer-generated content. The second category prohibited any sexually explicit image that appears to depict a minor, even if the image did not actually have a minor. Ashcroft v. Free Speech Coalition reexamines the original purpose of these child pornography laws and their relation to freedom of speech.

The Facts:

The Free Speech Coalition, a trade association of the adult entertainment industry, and other plaintiffs brought the lawsuit challenging the CPPA because they believed that it violated freedom of speech. They argued that the CPPA's prohibition on visual depictions that appear to depict minors engaging in sexually explicit conduct, even if the visual depictions were not of actual children, was overly broad. They also argued that the law could criminalize a wide range of legitimate forms of expression, including works of art, literature, and films that depict youthful-looking adults or adolescents in non-obscene contexts.

Legal Background:

The case originated in the United States District Court for the Northern District of California where the plaintiffs challenged the constitutionality of the CPPA. They argued that the “‘appears to be’ and ‘conveys the impression’ provisions [of the CPPA] are broad and vague, chilling production of works protected by the First Amendment.” The Free Speech Coalition, an adult-entertainment trade association, and others sued based on this reasoning, fearing that the wording would threaten their activities. The District Court disagreed. However, the Ninth Circuit reversed the decision. The court declined to reconsider the case en banc. The government petitioned for certiorari, and the Supreme Court granted it.

Holding:

On April 16, 2002, the Supreme Court, in a 6-3 decision, upheld the Ninth Circuit’s ruling, finding that the CPPA violated the First Amendment, and was unconstitutional. The Court found that “the CPPA is inconsistent with Miller V. California. In the case Miller v. California, the Supreme Court ruled that obscene materials did not enjoy First Amendment protections. For work to be considered obscene, it had to satisfy these requirements: the work taken as a whole is sexual contemporary community standards without having literary, artistic, political, or scientific value, and the work depicts or describes sexual content, in an offensive way. Meanwhile, the CPPA proscribed any sexually explicit material between minors, even if it was not offensive and had redeeming values and contained adults depicted as minors. This is because CPPA prohibited materials that “appears to be” or “conveys the impression” of a minor engaging in sexually explicit conduct, even if it was a very small theme in the material  Works such as Shakespeare’s Romeo and Juliet are technically prohibited by the CPPA, due to teenage lovers (conveys the impression of minors engaging in sexually explicit conduct), however, it is not prohibited by Miller standards due to its literary value. This example highlights the logic behind the Court’s ruling: “the CPPA cannot be read to prohibit obscenity, because it lacks the required link between its prohibitions and the affront to community standards prohibited by the obscenity definition.”

New York v. Ferber banned child pornography because child pornography would harm the child who participated and the economic incentive of the sale of child pornography would lead to its production. The ruling on Ferber was based on how child pornography was made, not what the material actually was, to protect children from abuse. The CPPA, on the other hand, banned all child pornography, regardless of the method of production, meaning that virtual child pornography and sexually explicit content containing what appears to be a minor were banned, even though it is produced without the involvement, let alone harming, of any children. The Court ruled that the Ferber standard, which was to protect children, did not support the CPPA, as it banned material that does not involve harm to children.

The Court found the government’s additional arguments for the CPPA to be ineffective. The government argued that “virtual child pornography whets pedophiles’ appetites and encourages them to engage in illegal conduct.” However, the argument is ineffective because the tendency of speech to encourage unlawful acts is not a good basis for banning it, as there is no direct connection between the two. They also argued that virtual child pornography could be used to seduce children, but the Court disagreed, stating that there are many innocent things, candy for instance, that can be used for immoral purposes but are not banned. The government also argued that since it was hard to distinguish between child pornography produced with real children and that produced using computer imagery, virtual child pornography should be banned. However, the overbreadth doctrine states that the government cannot ban unprotected speech if a large amount of protected speech is banned in the process. 

Legal Analysis:

I believe the ruling was correct; it makes sense given previous court cases and the First Amendment. The First Amendment allows for freedom of speech, however, there should be exceptions made for certain kinds of speech, such as speech that harms or negatively influences others. Ferber and Miller standards both show this exception within the First Amendment, and I believe that the Court was correct in using these two standards to rule the unconstitutionality of the CPPA.

Everyone would agree that pedophilia is morally wrong. The question remains how we determine what materials are and aren’t pedophilic. The extremely broad nature of the CPPA means that many notable works containing, or even implying, sexual themes involving minors could be prohibited. For example, “Titanic” (1997) contains sexually explicit themes of what "appears to be" minors (Kate Winslet played the 17 year old Rose), making it contraband under CPPA. However, the millions of people who watched and enjoyed “Titanic” would likely agree that its prohibition would be banning completely benign speech.

In 2003, the PROTECT Act was passed, which modified the wording of the CPPA to be constitutional. It longer prohibited any work containing sexual themes involving minors. A more appropriate balance was struck between freedom of speech and punishing offenders.