Case Citation:  Ashcroft
v. The Free Speech Coalition, 535 U.S. 234 (2002)

D. Ashcroft, Plaintiff / Appellant

The Free Speech Coalition, Defendant / Appellee

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The Child Pornography Prevention Act of 1996, 18 U.S.C.S. § 2251 et
seq., expands federal prohibition on child pornography to include explicit
images of actual children under 18 U.S.C. § 2256(8)(A), but also any visual
image that “appears” to be of a minor under § 2256(8)(B), and any image that
“conveys the impression” of a minor under § 2256(8)(D).  These provisions expand sexually explicit
images to include “virtual child pornography,” which may appear to convey a
minor, but were produced by other means; such as, computer-generated images or
young-looking adults.  Various
individuals involved in the production and distribution of pornographic
material feared these provisions, specifically the clauses “appears” and
“conveys the impression” as too broad, which inhibits their work that would normally
be protected by the First Amendment.

Procedural History: 
suit was initially filed by numerous individuals which challenged the United
States District Court for the Northern District of California against the
United States Attorney General, John D. Ashcroft, and the United States
Department of Justice.  The plaintiffs
alleged that provisions of the Child Pornography Protection Act (CPPA) of 1996
violated their First Amendment rights because they limited the plaintiffs from
artistic production by allowing the government to ban computer generated images.  The District Court ruled the contingencies
were constitutional and granted a motion for summary judgement.  Upon appeal, the United States Court of
Appeals for the Ninth Circuit reversed the determination and ordered reprimand,
ruling the Government could not ban speech because it may persuade an
individual to commit crime; and that pornography can be banned only if it is
obscene under Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, Ct.
2607 (1973), or under New York v. Ferber, 458 U.S. 747, 758, 73 L. Ed.
2d 1113, 102 S. Ct. 3348 (1982) and depicts actual children.

Issues:  Whether the
provisions §§ 2256(8)(B) “appears” and 2256(8)(D) “conveys the impression” of
the CPPA are overbroad and unconstitutional violating the First Amendment
freedom of speech?

Holdings: Yes. 
The provisions of the Child Pornography Protection Act of 1996 are too
broad violating freedom of speech.

Reasoning:  Appellants argued
the five following theories to support their position:

a. The speech
prohibited by the CPPA can not be distinguished from child pornography.

Court rejected the appellant arguments that the speech prohibited is
indistinguishable from actual child pornography.  The CPPA’s rhetoric prohibits speech that is
not criminal and produces no victims.  The
artistic expression of a virtual image does not put real children in danger;
therefore, is not criminal.  “Virtual
child pornography” is not innately related to sexual abuse of children; thus,
cannot fall under Ferber, because the materials referred to were records
of actual sexual abuse of children with actual children.  Under Ferber child pornography was
ruled criminal based on its production, not the image created.

The speech should be banned, regardless of the works value.

The Court rejected
the appellant argument that speech should be banned regardless of value. The
CPPA is inconsistent with Miller as it extends the ban of images, that would
not be obscene when valued in totality. Visual depictions may contain scenes
that individuals find offensive, but that does not take away the whole value of
a piece.  Speech, such as movies, may depict
adult actors as minors engaging in sexually explicit scenes, but that does not
make it child pornography. Additionally, Ferber did not hold child
pornography on a definition of value. 
Virtual images, prohibited by the CPPA, are a permissible means of artistic
expression because the speech is not obscene and does not produce sexual abuse.  The speech, therefore, falls under the
protection of the First Amendment.  The Court
distinguishes between actual and virtual child pornography. 

c.  The CPPA is necessary because it prevents
pedophiles from using virtual images to entice children.

The Court
acknowledged that the speech may lead to child abuse, but rejected the
appellant argument because there is an indirect link between the speech and a
pedophile using the speech for criminal actions.  Speech should not be banned because of an
individual’s criminal motives.  The
Government has an interest in protecting children and can criminalize the
distribution and production of actual child pornography; but the Government
cannot ban speech that children may be exposed to, or condense adults to speech
only appropriate for children.  Speech
that may inspire criminal acts is not justification enough to ban it. 

d.  The virtual images produced are
indistinguishable from real images of child pornography.

The appellants
argued that virtual child pornography promotes the market of child trafficking
and exploitation of real children due to the works being indistinguishable from
real images.  The Court rejected this
argument, because pornographers would not risk criminal prosecution by abusing
real children, when they can create computer generated images or use adults
that appear youthful. 

e.  The production of virtual child pornography
makes it difficult to prosecute actual child pornography.

The Court agreed that
experts could not readily distinguish between virtual and real images.  The Court recognized that it is of Government
interest to protect children from abuse; therefore, upheld the CPPA’s clause
that materials can be banned if they “appear” to contain minors, but the burden
of proof is on the Government to prove the work contains actual children, not
youthful looking adults. The Government would violate the First Amendment by
banning lawful speech to prohibit unlawful speech, because resemblance of
actual child pornography does not produce unlawful speech.  The CPPA should not be used as a means to
stop lawful speech, but as a burden on prosecution to prove the speech was

Decision:  Not Affirmed.  The Court dismisses the CPPA’s ban of
material that “conveys the impression” of child pornography as it inhibits
freedom of speech.  The Court affirms the
CPPA’s ban on pornography that “appears” to be of a minor, but cannot be
applied to pornography with youthful appearing adults.

Comment: This case demonstrates how a statute can
be interpreted though court procedures for constitutionality, and how different
levels of courts may disagree, but that The Supreme Court determines laws of
the land.


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