Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)

Congress passed the Child Pornography Prevention Act of 1996 that, among other things, dealt with ‘‘virtual’’ pornographic images of minors. The act prohibited not only the production, distribution, or advertising of pornographic images of actual children but also any visual depiction of what ‘‘appears to be’’ or ‘‘conveys the impression’’ of minors engaged in sexually explicit conduct. The lead respondent, Free Speech Coalition, a lobbying group for the adult entertainment industry, challenged the law on the grounds that the two provisions were constitutionally invalid.

A federal district court for the Ninth Circuit Court of Appeals in 1997 upheld the act’s constitutionality, ruling the law was content neutral and legitimately discouraged child pornography’s secondary effects, like pedophilia. Two years later, a panel for the Ninth Circuit reversed the district court in a two-to-one vote. From 1999 to 2001, however, four other circuit courts sustained the validity of the act. The Supreme Court granted certiorari and declared the ‘‘appears to be’’ and the ‘‘conveys the impression’’ provisions were overbroad, affirming the Ninth Circuit’s decision. Justice Kennedy wrote for Justices Stevens, Souter, Ginsburg, and Breyer. Thomas concurred with the judgment. Justice O’Connor concurred in part and dissented in part. Justices Rehnquist and Scalia dissented.

According to Justice Kennedy, ‘‘This case provides a textbook example of why we permit facial challenges to statutes that burden expression.’’ The imposition of criminal penalties on protected speech is a ‘‘stark example of speech suppression.’’ The law prohibited the production of images ‘‘without using any real children’’ and thus went beyond New York v. Ferber, 458 U.S. 747 (1982), which sustained state interest in preventing the exploitation of actual minors involved in pornography. Virtual images do not involve real minors nor does the production of the images harm or exploit them.

Moreover, the law made no effort to conform to Miller v. California, 413 U.S. 015 (1973). Materials did not have to appeal to prurient interests; depictions of sexually explicit activity, regardless of their literary, artistic, political, or scientific value, were proscribed. Also, it was not necessary for the images to be patently offensive or contravene community standards, as Miller requires. In addition, materials or images were not considered as a whole or in their entirety; a ‘‘single graphic depiction’’ of sexual activity could lead to severe criminal penalties.

Finally, the Court dismissed the government’s secondary effects arguments regarding child pornography. As Justice Kennedy concludes, ‘‘The Government has shown no more than a remote connection between speech that might encourage thoughts or impulses and any resulting child abuse. Without a significantly stronger, more direct connection, the Government may not prohibit speech on the ground that it may encourage pedophiles to engage in illegal conduct.’’

Justice Rehnquist’s dissent, joined by Justice Scalia, argued that the act’s explicit definition of proscribed sexual activity did not reach protected images or materials. He accordingly claimed that if properly construed, based on its definition of child pornography, the act, would reach only ‘‘computer-generated images that are virtually indistinguishable from real children engaged in sexually explicit conduct. The statute need not be read to do any more than precisely this, which is not offensive to the First Amendment.’’

In response to the Court’s decision, Congress enacted the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT Act) that adopted the dissent’s language to ban some nonobscene pornography produced without an actual minor.

ROY B. FLEMMING

References and Further Reading

• Jenkins, Philip. Beyond Tolerance: Child Pornography on the Internet. New York: New York University Press, 2003
• Kende, Mark S. ‘‘The Supreme Court’s Approach to the First Amendment in Cyberspace: Free Speech as Technology’s Hand-Maiden.’’ Constitutional Commentary 14(3) (1997):465–480

Cases and Statutes Cited

• Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) 
• Miller v. California, 413 U.S. 015 (1973) 
• New York v. Ferber, 458 U.S. 747 (1982)