Epstein and Walker’s General Introduction
Since the
mid-1990s, Congress has attempted to regulate the dissemination of various
materials through the Internet or that those that have been made possible via
computer technology. In Reno v. American
Civil Liberties Union (1997), the Court struck down one of these
efforts--the Communications Decency Act, which sought to control children’s
access to sexually explicit material transmitted electronically (see pp.
373-378 of the text).
In the case
excerpted below, Ashcroft v. Free Speech
Coalition (2002), the Court took up yet another congressional act passed in
response to the “electronic age:” the Child Pornography Prevention Act of 1996,
which extended the federal prohibition against child pornography to sexually
explicit images that appear to depict minors but were produced without using
any real children. The statute prohibits possessing or distributing these
images, which may be created by using adults who look like minors or by using
computer imaging (“virtual child pornography”). The new technology, according
to Congress, makes it possible to create realistic images of children who do
not exist.
Note
that the Court struck down the act, mainly on the grounds that it covered
materials beyond the categories recognized in two of its obscenity cases: Miller v. California (1973) (pp. 357-360) and New York v. Ferber (1982) (pp. 362-365 of the text) --and that the reasons the government
offered in support of limiting free speech, as the act did, are not supported
by existing precedent. Do you agree? (Read this case in connection with
materials in Chapters 5 and 7.)
___ U.S. ____ (2002)
http://supct.law.cornell.edu/supct/html/00-795.ZS.html
Vote: 6 (Breyer, Ginsburg, Kennedy, Souter, Stevens, Thomas)
2
(Rehnquist, Scalia)
O’Connor concurred in part and
dissented in part
Opinion of the Court: Kennedy
Opinion Concurring in the
Judgment: Thomas
Opinion Concurring in the Judgment
in Part and Dissenting in Part:
O’Connor
Dissenting Opinion: Rehnquist
Before 1996,
Congress defined child pornography as the type of depictions at issue in New York v. Ferber--that is, images made
using actual minors. With passage of the Child Pornography Prevention Act
(CPPA) in 1996, Congress retained that prohibition and added several others. Of
particular relevance here is §2256(8)(B), which prohibited “any visual
depiction, including any photograph, film, video, picture, or computer or
computer-generated image or picture” that “is, or appears to be, of a minor
engaging in sexually explicit conduct.” The prohibition on “any visual
depiction” did not depend how the image was produced. The section captured a
range of depictions, sometimes called “virtual child pornography,” which included
computer-generated images, as well as images produced by more traditional
means. Even though these images did not involve any children in the production
process, Congress reasoned that these sorts of materials threaten children in
other, less direct, ways. Pedophiles might use the materials to encourage
children to participate in sexual activity. Furthermore, pedophiles might “whet
their own sexual appetites” with the pornographic images, “thereby increasing
the creation and distribution of child pornography and the sexual abuse and
exploitation of actual children. Under these rationales, harm flows from the
content of the images, not from the means of their production. In addition,
Congress identified another problem created by computer-generated images: Their
existence can make it harder to prosecute pornographers who do use real minors.
As imaging technology improves, Congress found, it becomes more difficult to
prove that a particular picture was produced using actual children. To ensure
that defendants possessing child pornography using real minors could not evade
prosecution, Congress extended the ban to virtual child pornography.
Believing
that the CPPA threatened the activities of its members, Free Speech Coalition
challenged the statute a U.S. District Court. The Coalition, a California trade
association for the adult-entertainment industry, alleged that its members did
not use minors in their sexually explicit works, but the association believed
some of these materials might fall within the CPPA’s expanded definition of
child pornography. The Coalition argued that the “appears to be” and “conveys
the impression” provisions were overbroad and vague, discouraging them from
producing works protected by the First Amendment. The District Court disagreed
and ruled in favor of the government. But the Court of Appeals for the Ninth
Circuit reversed this decision. The court reasoned that the federal government
could not prohibit speech based on of this freedom's tendency to persuade
viewers to commit illegal acts. The court held the CPPA to be substantially
overbroad, because it bans materials that are neither obscene nor produced by
the exploitation of real children as in Ferber.
Its ruling was in direct contradistinction to those issued by four other courts
of appeals, each of which sustained the CPPA. The case was then placed before
the Supreme Court.
Justice Kennedy
delivered the opinion of the Court.
We
consider in this case whether the Child Pornography Prevention Act of 1996
(CPPA), abridges the freedom of speech. . . .
By
prohibiting child pornography that does not depict an actual child, the statute
goes beyond New York v. Ferber (1982), which distinguished child
pornography from other sexually explicit speech because of the State’s interest
in protecting the children exploited by the production process. As a general
rule, pornography can be banned only if obscene, but under Ferber, pornography
showing minors can be proscribed whether or not the images are obscene under
the definition set forth in Miller v.
California (1973). Ferber recognized that “[t]he Miller standard, like all general
definitions of what may be banned as obscene, does not reflect the State’s
particular and more compelling interest in prosecuting those who promote the
sexual exploitation of children.”
While
we have not had occasion to consider the question, we may assume that the
apparent age of persons engaged in sexual conduct is relevant to whether a
depiction offends community standards. Pictures of young children engaged in
certain acts might be obscene where similar depictions of adults, or perhaps
even older adolescents, would not. The CPPA, however, is not directed at speech
that is obscene; Congress has proscribed those materials through a separate
statute. Like the law in Ferber, the
CPPA seeks to reach beyond obscenity, and it makes no attempt to conform to the
Miller standard. For instance, the
statute would reach visual depictions, such as movies, even if they have redeeming
social value.
The
principal question to be resolved, then, is whether the CPPA is constitutional
where it proscribes a significant universe of speech that is neither obscene
under Miller nor child pornography
under Ferber. . . .
[T]he CPPA is
much more than a supplement to the existing federal prohibition on obscenity.
Under Miller v. California (1973), the Government must prove that the work, taken
as a whole, appeals to the prurient interest, is patently offensive in light of
community standards, and lacks serious literary, artistic, political, or
scientific value. The CPPA, however, extends to images that appear to depict a
minor engaging in sexually explicit activity without regard to the Miller requirements. The materials need
not appeal to the prurient interest. Any depiction of sexually explicit
activity, no matter how it is presented, is proscribed. The CPPA applies to a
picture in a psychology manual, as well as a movie depicting the horrors of
sexual abuse. It is not necessary, moreover, that the image be patently
offensive. Pictures of what appear to be 17-year-olds engaging in sexually
explicit activity do not in every case contravene community standards.
The
CPPA prohibits speech despite its serious literary, artistic, political, or
scientific value. The statute proscribes the visual depiction of an idea–that
of teenagers engaging in sexual activity--that is a fact of modern society and
has been a theme in art and literature throughout the ages. Under the CPPA,
images are prohibited so long as the persons appear to be under 18 years of
age. This is higher than the legal age for marriage in many States, as well as
the age at which persons may consent to sexual relations. It is, of course,
undeniable that some youths engage in sexual activity before the legal age,
either on their own inclination or because they are victims of sexual abuse.
Both
themes--teenage sexual activity and the sexual abuse of children--have inspired
countless literary works. William Shakespeare created the most famous pair of
teenage lovers, one of whom is just 13 years of age. See Romeo and Juliet.
In the drama, Shakespeare portrays the relationship as something splendid and
innocent, but not juvenile. The work has inspired no less than 40 motion
pictures, some of which suggest that the teenagers consummated their
relationship. Shakespeare may not have written sexually explicit scenes for the
Elizabethean audience, but were modern directors to adopt a less conventional
approach, that fact alone would not compel the conclusion that the work was
obscene.
Contemporary
movies pursue similar themes. Last year’s Academy Awards featured the movie,
Traffic, which was nominated for Best Picture. The film portrays a teenager,
identified as a 16-year-old, who becomes addicted to drugs. The viewer sees the
degradation of her addiction, which in the end leads her to a filthy room to
trade sex for drugs. . .
Our
society, like other cultures, has empathy and enduring fascination with the
lives and destinies of the young. Art and literature express the vital interest
we all have in the formative years we ourselves once knew, when wounds can be
so grievous, disappointment so profound, and mistaken choices so tragic, but
when moral acts and self-fulfillment are still in reach. Whether or not the
films we mention violate the CPPA, they explore themes within the wide sweep of
the statute’s prohibitions. If these films, or hundreds of others of lesser
note that explore those subjects, contain a single graphic depiction of sexual
activity within the statutory definition, the possessor of the film would be
subject to severe punishment without inquiry into the work’s redeeming value.
This is inconsistent with an essential First Amendment rule: The artistic merit
of a work does not depend on the presence of a single explicit scene. Under Miller, the First Amendment requires
that redeeming value be judged by considering the work as a whole. Where the
scene is part of the narrative, the work itself does not for this reason become
obscene, even though the scene in isolation might be offensive. For this
reason, and the others we have noted, 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 definition of obscenity.
The
Government seeks to address this deficiency by arguing that speech prohibited
by the CPPA is virtually indistinguishable from child pornography, which may be
banned without regard to whether it depicts works of value. See New York v. Ferber. Where the images are themselves the product of child sexual
abuse, Ferber recognized that the
State had an interest in stamping it out without regard to any judgment about
its content. The production of the work, not its content, was the target of the
statute. The fact that a work contained serious literary, artistic, or other
value did not excuse the harm it caused to its child participants. It was
simply “unrealistic to equate a community’s toleration for sexually oriented
materials with the permissible scope of legislation aimed at protecting
children from sexual exploitation.
Ferber upheld a prohibition on the
distribution and sale of child pornography, as well as its production, because
these acts were “intrinsically related” to the sexual abuse of children in two
ways. First, as a permanent record of a child’s abuse, the continued
circulation itself would harm the child who had participated. Like a defamatory
statement, each new publication of the speech would cause new injury to the
child’s reputation and emotional well-being. Second, because the traffic in
child pornography was an economic motive for its production, the State had an
interest in closing the distribution network. Under either rationale, the
speech had what the Court in effect held was a proximate link to the crime from
which it came.
Later,
in Osborne v. Ohio (1990), the Court ruled that these same interests justified a
ban on the possession of pornography produced by using children. Osborne also noted the State’s interest
in preventing child pornography from being used as an aid in the solicitation
of minors. The Court, however, anchored its holding in the concern for the
participants, those whom it called the “victims of child pornography.” It did
not suggest that, absent this concern, other governmental interests would
suffice.
In contrast to the speech in Ferber, speech that itself is the record
of sexual abuse, the CPPA prohibits speech that records no crime and creates no
victims by its production. Virtual child pornography is not “intrinsically
related” to the sexual abuse of children, as were the materials in Ferber. While the Government asserts
that the images can lead to actual instances of child abuse, the causal link is
contingent and indirect. The harm does not necessarily follow from the speech,
but depends upon some unquantified potential for subsequent criminal acts.
The
Government says these indirect harms are sufficient because, as Ferber acknowledged, child pornography
rarely can be valuable speech. This argument, however, suffers from two flaws.
First, Ferber’s judgment about child
pornography was based upon how it was made, not on what it communicated. The
case reaffirmed that where the speech is neither obscene nor the product of
sexual abuse, it does not fall outside the protection of the First Amendment.
The
second flaw in the Government’s position is that Ferber did not hold that child pornography is by definition without
value. On the contrary, the Court recognized some works in this category might
have significant value, but relied on virtual images–the very images prohibited
by the CPPA–as an alternative and permissible means of expression: “[I]f it
were necessary for literary or artistic value, a person over the statutory age
who perhaps looked younger could be utilized. Simulation outside of the
prohibition of the statute could provide another alternative.” Ferber, then, not only referred to the
distinction between actual and virtual child pornography, it relied on it as a
reason supporting its holding. Ferber provides
no support for a statute that eliminates the distinction and makes the
alternative mode criminal as well.
The
CPPA, for reasons we have explored, is inconsistent with Miller and finds no support in Ferber. The Government seeks to justify its
prohibitions in other ways. It argues that the CPPA is necessary because
pedophiles may use virtual child pornography to seduce children. There are many
things innocent in themselves, however, such as cartoons, video games, and
candy, that might be used for immoral purposes, yet we would not expect those
to be prohibited because they can be misused. The Government, of course, may
punish adults who provide unsuitable materials to children, and it may enforce
criminal penalties for unlawful solicitation. The precedents establish,
however, that speech within the rights of adults to hear may not be silenced
completely in an attempt to shield children from it. . . .
Here,
the Government wants to keep speech from children not to protect them from its
content but to protect them from those who would commit other crimes. The
principle, however, remains the same: The Government cannot ban speech fit for
adults simply because it may fall into the hands of children. The evil in
question depends upon the actor’s unlawful conduct, conduct defined as criminal
quite apart from any link to the speech in question. This establishes that the
speech ban is not narrowly drawn. The objective is to prohibit illegal conduct,
but this restriction goes well beyond that interest by restricting the speech
available to law-abiding adults.
The
Government submits further that virtual child pornography whets the appetites
of pedophiles and encourages them to engage in illegal conduct. This rationale
cannot sustain the provision in question. The mere tendency of speech to
encourage unlawful acts is not a sufficient reason for banning it. The
government “cannot constitutionally premise legislation on the desirability of
controlling a person’s private thoughts.” First Amendment freedoms are most in
danger when the government seeks to control thought or to justify its laws for
that impermissible end. The right to think is the beginning of freedom, and
speech must be protected from the government because speech is the beginning of
thought.
To
preserve these freedoms, and to protect speech for its own sake, the Court’s
First Amendment cases draw vital distinctions between words and deeds, between
ideas and conduct. The government may not prohibit speech because it increases
the chance an unlawful act will be committed “at some indefinite future time.”.
The government may suppress speech for advocating the use of force or a
violation of law only if “such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action.” There
is here no attempt, incitement, solicitation, or conspiracy. 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.
The
Government next argues that its objective of eliminating the market for
pornography produced using real children necessitates a prohibition on virtual
images as well. Virtual images, the Government contends, are indistinguishable
from real ones; they are part of the same market and are often exchanged. In
this way, it is said, virtual images promote the trafficking in works produced
through the exploitation of real children. The hypothesis is somewhat
implausible. If virtual images were identical to illegal child pornography, the
illegal images would be driven from the market by the indistinguishable
substitutes. Few pornographers would risk prosecution by abusing real children
if fictional, computerized images would suffice.
In
the case of the material covered by Ferber,
the creation of the speech is itself the crime of child abuse; the prohibition
deters the crime by removing the profit motive. Even where there is an
underlying crime, however, the Court has not allowed the suppression of speech
in all cases. We need not consider
where to strike the balance in this case, because here, there is no underlying
crime at all. Even if the Government’s market deterrence theory were persuasive
in some contexts, it would not justify this statute.
Finally,
the Government says that the possibility of producing images by using computer
imaging makes it very difficult for it to prosecute those who produce
pornography by using real children. Experts, we are told, may have difficulty
in saying whether the pictures were made by using real children or by using
computer imaging. The necessary solution, the argument runs, is to prohibit
both kinds of images. The argument, in essence, is that protected speech may be
banned as a means to ban unprotected speech. This analysis turns the First
Amendment upside down.
The
Government may not suppress lawful speech as the means to suppress unlawful
speech. Protected speech does not become unprotected merely because it
resembles the latter. The Constitution requires the reverse. “[T]he possible
harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that protected speech of others may be muted. . .
.” The overbreadth doctrine prohibits the Government from banning unprotected
speech if a substantial amount of protected speech is prohibited or chilled in
the process. . . .
In sum, [the Act]
covers materials beyond the categories recognized in Ferber and Miller, and
the reasons the Government offers in support of limiting the freedom of speech
have no justification in our precedents or in the law of the First Amendment.
The provision abridges the freedom to engage in a substantial amount of lawful
speech. For this reason, it is overbroad and unconstitutional.
The
judgment of the Court of Appeals is affirmed.
It is so ordered.
Justice
Thomas, concurring in the judgment.
In
my view, the Government’s most persuasive asserted interest in support of the
Child Pornography Prevention Act of 1996 (CPPA is the prosecution
rationale–that persons who possess and disseminate pornographic images of real
children may escape conviction by claiming that the images are
computer-generated, thereby raising a reasonable doubt as to their guilt. At
this time, however, the Government asserts only that defendants raise such defenses, not that they have
done so successfully. In fact, the Government points to no case in which a
defendant has been acquitted based on a “computer-generated images” defense.
While this speculative interest cannot support the broad reach of the CPPA,
technology may evolve to the point where it becomes impossible to enforce
actual child pornography laws because the Government cannot prove that certain
pornographic images are of real children. In the event this occurs, the
Government should not be foreclosed from enacting a regulation of virtual child
pornography that contains an appropriate affirmative defense or some other
narrowly drawn restriction.
The Court suggests that the
Government’s interest in enforcing prohibitions against real child pornography
cannot justify prohibitions on virtual child pornography, because “[t]his
analysis turns the First Amendment upside down. The Government may not suppress
lawful speech as the means to suppress unlawful speech.” But if technological
advances thwart prosecution of “unlawful speech,” the Government may well have
a compelling interest in barring or otherwise regulating some narrow category
of “lawful speech” in order to enforce effectively laws against pornography
made through the abuse of real children.
Chief
Justice Rehnquist, with whom Justice
Scalia joins in part, dissenting.
To
the extent the CPPA prohibits possession or distribution of materials that
“convey the impression” of a child engaged in sexually explicit conduct, that
prohibition can and should be limited to reach “the sordid business of
pandering” which lies outside the bounds of First Amendment protection. This is
how the Government asks us to construe the statute, and it is the most
plausible reading of the text, which prohibits only materials “advertised, promoted, presented, described,
or distributed in such a manner that conveys the impression that the
material is or contains a visual depiction of a minor engaging in sexually
explicit conduct.”
The
First Amendment may protect the video shop owner or film distributor who
promotes material as “entertaining” or “acclaimed” regardless of whether the
material contains depictions of youthful looking adult actors engaged in
nonobscene but sexually suggestive conduct. The First Amendment does not,
however, protect the panderer. Thus, materials promoted as conveying the
impression that they depict actual minors engaged in sexually explicit conduct
do not escape regulation merely because they might warrant First Amendment
protection if promoted in a different manner. . . .
In
sum, while potentially impermissible applications of the CPPA may exist, I
doubt that they would be “substantial. . .in relation to the statute’s plainly
legitimate sweep.” The aim of ensuring the enforceability of our Nation’s child
pornography laws is a compelling one. The CPPA is targeted to this aim by
extending the definition of child pornography to reach 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. . . .
I would construe
the CPPA in a manner consistent with the First Amendment, reverse the Court of
Appeals’ judgment, and uphold the statute in its entirety.
Justice
O’Connor, with whom The Chief Justice
and Justice Scalia join [in
part], concurring in the judgment in part and dissenting in part.
Respondents assert
that the CPPA’s prohibitions of youthful-adult pornography, virtual-child
pornography, and material that “conveys the impression” that it contains
actual-child pornography are overbroad, that the prohibitions are content-based
regulations not narrowly tailored to serve a compelling Government interest,
and that the prohibitions are unconstitutionally vague. The Government not only
disagrees with these specific contentions, but also requests that the Court
exclude youthful-adult and virtual-child pornography from the protection of the
First Amendment.
I agree with the
Court’s decision not to grant this request. . .
I
also agree with the Court’s decision to strike down the CPPA’s ban on material
presented in a manner that “conveys the impression” that it contains
pornographic depictions of actual children (“actual-child pornography”). The
Government fails to explain how this ban serves any compelling state interest.
. .
Finally,
I agree with Court that that the CPPA’s ban on youthful-adult pornography is
overbroad. The Court provides several examples of movies that, although
possessing serious literary, artistic or political value and employing only
adult actors to perform simulated sexual conduct, fall under the CPPA’s
proscription on images that “appea[r] to be. . .of a minor engaging in sexually
explicit conduct.” Individuals or businesses found to possess just three such
films have no defense to criminal liability under the CPPA.
I
disagree with the Court, however, that the CPPA’s prohibition of virtual-child
pornography is overbroad. Before I reach that issue, there are two preliminary
questions: whether the ban on virtual-child pornography fails strict scrutiny
and whether that ban is unconstitutionally vague. I would answer both in the
negative.
The
Court has long recognized that the Government has a compelling interest in
protecting our Nation’s children. This interest is promoted by efforts directed
against sexual offenders and actual-child pornography. These efforts, in turn,
are supported by the CPPA’s ban on virtual-child pornography. Such images whet
the appetites of child molesters, who may use the images to seduce young
children. Of even more serious concern is the prospect that defendants indicted
for the production, distribution, or possession of actual-child pornography may
evade liability by claiming that the images attributed to them are in fact
computer-generated. . . .
Respondents
argue that, even if the Government has a compelling interest to justify banning
virtual-child pornography, the “appears to be. . .of a minor” language is not
narrowly tailored to serve that interest. They assert that the CPPA would
capture even cartoon-sketches or statues of children that were sexually
suggestive. Such images surely could not be used, for instance, to seduce
children. I agree. A better interpretation of “appears to be. . .of” is
“virtually indistinguishable from”--an interpretation that would not cover the
examples respondents provide. Not only does the text of the statute comfortably
bear this narrowing interpretation, the interpretation comports with the
language that Congress repeatedly used in its findings of fact. Finally, to the
extent that the phrase “appears to be. . .of” is ambiguous, the narrowing
interpretation avoids constitutional problems such as overbreadth and lack of
narrow tailoring.
Reading
the statute only to bar images that are virtually indistinguishable from actual
children would not only assure that the ban on virtual-child pornography is
narrowly tailored, but would also assuage any fears that the “appears to be. .
.of a minor” language is vague. The narrow reading greatly limits any risks
from “discriminatory enforcement.”. . .
The
Court concludes that the CPPA’s ban on virtual-child pornography is overbroad.
The basis for this holding is unclear. Although a content-based regulation may
serve a compelling state interest, and be as narrowly tailored as possible
while substantially serving that interest, the regulation may unintentionally
ensnare speech that has serious literary, artistic, political, or scientific
value or that does not threaten the harms sought to be combated by the
Government. If so, litigants may challenge the regulation on its face as
overbroad, but in doing so they bear the heavy burden of demonstrating that the
regulation forbids a substantial amount of valuable or harmless speech.
Respondents have not made such a demonstration. Respondents provide no examples
of films or other materials that are wholly computer-generated and contain
images that “appea[r] to be. . .of minors” engaging in indecent conduct, but
that have serious value or do not facilitate child abuse. Their overbreadth
challenge therefore fails.
Although
in my view the CPPA’s ban on youthful-adult pornography appears to violate the
First Amendment, the ban on virtual-child pornography does not. It is true that
both bans are authorized by the same text [but] the CPPA elsewhere draws a line
between these two classes of speech. The statute provides an affirmative
defense for those who produce, distribute, or receive pornographic images of
individuals who are actually adults, but not for those with pornographic images
that are wholly computer generated. This is not surprising given that the
legislative findings enacted by Congress contain no mention of youthful-adult
pornography. Those findings focus explicitly only on actual-child pornography
and virtual-child pornography. Drawing a line around, and striking just, the
CPPA’s ban on youthful-child pornography not only is consistent with Congress’
understanding of the categories of speech encompassed by [the act], but also
preserves the CPPA’s prohibition of the material that Congress found most
dangerous to children.
In
sum, I would strike down the CPPA’s ban on material that “conveys the
impression” that it contains actual-child pornography, but uphold the ban on
pornographic depictions that “appea[r] to be” of minors so long as it is not
applied to youthful-adult pornography.