May 3, 2002
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).
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, 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.
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.
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
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.