Ashcroft v. The Free Speech Coalition, 535 U.S. 234; 122 S. Ct. 1389; 152 L. Ed. 2d 403; 2002 U.S. LEXIS 1789 (2002)

Ashcroft v. The Free Speech Coalition, 535 U.S. 234; 122 S. Ct. 1389; 152 L. Ed. 2d 403; 2002 U.S. LEXIS 1789 (2002)

Facts—In the Child Pornography Prevention Act (CCPA) of 1996, Congress expanded its ban on child pornography to include depictions that appear to involve minors in sexual conduct, including that in which adult actors are portrayed as children and “virtual child pornography” using computer images to simulate such conduct. A U.S. District Court upheld the act, which the U.S. Ninth Circuit Court of Appeals reversed. Four other circuits had sustained the law in other cases.

Question—Does the Child Pornography Prevention Act violate the First and Fourteenth Amendments in banning computer simulations of explicit images that appear to be of actual children engaged in sexual activities but are not?


ReasonsJ. Kennedy (6–3). The provisions of the CCPA outlaw speech that was not identified as obscene in Miller v. California (1973) or in New York v. Ferber (1982). Child pornography has been recognized as a category that is not protected by the First Amendment, and Ferber upheld regulations of pornography involving the use of real juveniles, in which children could be harmed during the production process. This law attempts to go further in banning depictions of the very idea of juveniles engaged in sexual behavior. This subject has been the theme of many great works of literature, including some portrayals of Shakespeare’s Romeo and Juliet. Although the government argues that materials produced without using real children could be used to seduce children, the same could be said for other innocent things, including “cartoons, video games, and candy.” Moreover, the “mere tendency” that such materials might have in whetting the appetites of pedophiles fails to distinguish between “words and deeds, between ideas and conduct.” Although prosecution of real pornography might be made more difficult by the task of distinguishing it from simulated pornography, “The Government may not suppress lawful speech as the means to suppress unlawful speech.” Similarly, the government’s ban on advertising that conveys the impression that it deals with child pornography is “overbroad and unconstitutional.”

J. Thomas’s concurrence argued for leaving the door open to prosecution of computer-simulated pornography involving children if technological advances make it impossible to distinguish between pornography involving children and that which does not. C.J. Rehnquist, in dissent, argued that the Court should save the law simply by interpreting it, not to involve any hint of juvenile sex, but only that which is “hard core” in nature and which is knowingly possessed.

J. O’Connor’s dissent would strike down the prohibition of pornography involving adults that merely appear to be juveniles, but she would uphold the ban on virtual child pornography. She argued that the Government “has a compelling interest in protecting our Nation’s children,” and that Congress should not have to wait until such children are harmed to adopt legislation. She would interpret the law to allow for regulation of computer-simulated child pornography when such pornography was “virtually indistinguishable from” the real thing.

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