Ashcroft v. Free Speech Coalition
Encyclopedia
Ashcroft v. Free Speech Coalition, , struck down two overbroad
provisions of the Child Pornography Prevention Act of 1996
because they abridged "the freedom to engage in a substantial amount of lawful speech." The case was brought against the Government by the Free Speech Coalition
, a "California
trade association for the adult-entertainment industry;" along with Bold Type, Inc., a "publisher of a book advocating the nudist lifestyle;" Jim Gingerich, who paints nudes; and Ron Raffaelli, a photographer who specialized in erotic image
s. By striking down these two provisions, the Court rejected an invitation to increase the amount of speech that would be categorically outside the protection of the First Amendment
.
, , the Court had held that the First Amendment allowed the government to restrict obscenity
. And in New York v. Ferber
, , the Court held that the government could restrict the distribution of child pornography
to protect children from the harm inherent in making it. The Court extended Ferber to mere possession of child pornography in Osborne v. Ohio
, .
defined child pornography with reference to the Ferber standard. In passing the Child Pornography Prevention Act of 1996
, Congress added the two categories of speech challenged in this case to its definition of child pornography. The first 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 Court observed that this provision "captures a range of depictions, sometimes called 'virtual child pornography,' which include computer-generated images, as well as images produced by more traditional means." The second prohibited "any sexually explicit image that was advertised, promoted, presented, described, or distributed in such a manner that conveys the impression it depicts a minor engaging in sexually explicit conduct."
, fearing that Congress's expanded definition of child pornography would endanger their legitimate activities, filed a lawsuit seeking to enjoin enforcement of the CPPA in the United States District Court for the Northern District of California
. They alleged that the first provision, prohibiting images that "appear to be" children engaged in sexual activity, and the second, prohibiting speech that "conveys the impression" that the images depict minors engaged in sexual activity, were overbroad, vague, and had a chilling effect on their legitimate work. The district court disagreed, adding that the overbreadth claim was specious as it was "highly unlikely" that any "adaptations of sexual works like Romeo and Juliet... will be treated as 'criminal contraband.'"
The Ninth Circuit reversed, reasoning that the government could not prohibit speech merely because of its tendency to persuade its viewers to engage in illegal activity. It ruled that the CPPA was substantially overbroad because it prohibited material that was neither obscene nor produced by exploiting real children, as Ferber prohibited. The court declined to reconsider the case en banc
. The government asked the Supreme Court to review the case, and it agreed, noting that the Ninth Circuit's decision conflicted with the decisions of four other circuit courts of appeals. Ultimately the Court agreed with the Ninth Circuit.
The Court concluded that the "CPPA prohibits speech despite its serious literary, artistic, political, or scientific value." In particular, it prohibits the visual depiction of teenagers engaged in sexual activity, a "fact of modern society and has been a theme in art and literature throughout the ages." Such depictions include performances of Romeo and Juliet
, by William Shakespeare; the 1996 film William Shakespeare's Romeo + Juliet
, directed by Baz Luhrmann
; and the Academy Award winning movies Traffic
and American Beauty
. "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."
Thus, the CPPA prohibited speech for a different reason than anti-child pornography laws. Laws prohibiting the distribution and possession of child pornography ban speech because of the manner in which it is produced, regardless of its serious literary or artistic value. But speech prohibited by the CPPA "records no crime and creates no victims by its production." Child pornography is not necessarily without value, but it is illegal because of the harm that making and distributing it necessarily inflicts upon children. Ferber expressly allowed virtual child pornography as an alternative that could preserve whatever literary value child pornography might arguably have while at the same time mitigating the harm caused by making it. The CPPA would eliminate this distinction and punish people for engaging in what had heretofore been a legal alternative.
The Government countered that without the CPPA, child molesters might use virtual child pornography to seduce children. But "there are many things innocent in themselves, however, such as toys, movies, games, video games, candy, money etc. that might be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused." The First Amendment draws a distinction between words and deeds, and does not tolerate banning of mere words simply because those words could lead to bad deeds. Although the CPPA's objective was to prohibit illegal conduct, it went well beyond that goal by restricting speech available to law-abiding adults. And if the goal was to eliminate the market for all child pornography, the Court ruled that the government could not accomplish that goal by eliminating lawful speech in the process. The burden should not, however, fall on the speaker to prove that his speech is lawful, instead of on the government to prove that it is not. Furthermore, such an affirmative defense is "incomplete on its own terms" because it "allows persons to be convicted in some instances where they can prove children were not exploited in the production."
As for the provision that forbade advertising speech so as to convey the impression it depicted minors engaged in sexual conduct, the Court found this provision to be even more sweeping. "Even if a film contains no sexually explicit scenes involving minors, it could be treated as child pornography if the title and trailers convey the impression that the scenes would be found in the movie." Although pandering may be a relevant question in an obscenity prosecution, the "conveys the impression" prohibition forbade speech advertising depictions that were entirely lawful. "The First Amendment requires a more precise restriction" than the one drawn by CPPA.
's dissenting opinion began with a concern that rapidly advancing technology would soon make it very difficult, if not impossible, to distinguish between pornography made with actual children and pornography made with simulated images of children. "Congress has a compelling interest in ensuring the ability to enforce prohibitions of actual child pornography, and we should defer to its findings that rapidly advancing technology soon will make it all but impossible to do so." Rehnquist's dissenting opinion agreed that serious First Amendment concerns would arise if the government actually prosecuted, say, the producers of Traffic
or American Beauty
under CPPA. But it had not done so, and Rehnquist believed that the statute did not need to be construed to allow the government to do so. Rehnquist observed that the CPPA banned only depictions of minors engaged in actual sexual activity, not mere suggestions of sexual activity. CPPA simply outlawed "computer-generated images virtually indistinguishable from real children in sexually explicit conduct." None of the films the majority mentioned depicted children engaged in actual sexual activity. And as for the "conveys the impression" provision, Rehnquist categorized this provision as merely an anti-pandering provision. Because one could, by definition, only pander obscenity, and that which the panderer knew to be obscenity in any event, that provision also did not violate the First Amendment.
Overbreadth doctrine
In American jurisprudence, the overbreadth doctrine is primarily concerned with facial challenges to laws under the First Amendment. American courts have recognized several exceptions to the speech protected by the First Amendment , and states therefore have some latitude to regulate unprotected...
provisions of the Child Pornography Prevention Act of 1996
Child Pornography Prevention Act of 1996
The Child Pornography Prevention Act of 1996 was a United States federal law to restrict child pornography on the internet, including virtual child pornography....
because they abridged "the freedom to engage in a substantial amount of lawful speech." The case was brought against the Government by the Free Speech Coalition
Free Speech Coalition
The Free Speech Coalition is a non-profit trade association of the pornography and adult entertainment industry in the United States...
, a "California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
trade association for the adult-entertainment industry;" along with Bold Type, Inc., a "publisher of a book advocating the nudist lifestyle;" Jim Gingerich, who paints nudes; and Ron Raffaelli, a photographer who specialized in erotic image
Eroticism
Eroticism is generally understood to refer to a state of sexual arousal or anticipation of such – an insistent sexual impulse, desire, or pattern of thoughts, as well as a philosophical contemplation concerning the aesthetics of sexual desire, sensuality and romantic love...
s. By striking down these two provisions, the Court rejected an invitation to increase the amount of speech that would be categorically outside the protection of the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
.
Background of the case
Prior case law had established two relevant categories of speech that were outside the protection of the First Amendment. In Miller v. CaliforniaMiller v. California
Miller v. California, was an important United States Supreme Court case involving what constitutes unprotected obscenity for First Amendment purposes...
, , the Court had held that the First Amendment allowed the government to restrict obscenity
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
. And in New York v. Ferber
New York v. Ferber
New York v. Ferber, , was a United States Supreme Court decision. The Court ruled unanimously that the First Amendment right to free speech did not forbid states from banning the sale of material depicting children engaged in sexual activity....
, , the Court held that the government could restrict the distribution of child pornography
Child pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
to protect children from the harm inherent in making it. The Court extended Ferber to mere possession of child pornography in Osborne v. Ohio
Osborne v. Ohio
Osborne v. Ohio, , was a case in which the Supreme Court of the United States held that the First Amendment allows states to outlaw the mere possession, as distinct from the distribution, of child pornography. In so doing, the Court extended the holding of New York v...
, .
The statute at issue
Before 1996, CongressUnited States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
defined child pornography with reference to the Ferber standard. In passing the Child Pornography Prevention Act of 1996
Child Pornography Prevention Act of 1996
The Child Pornography Prevention Act of 1996 was a United States federal law to restrict child pornography on the internet, including virtual child pornography....
, Congress added the two categories of speech challenged in this case to its definition of child pornography. The first prohibited "any visual depiction, including any photograph
Photograph
A photograph is an image created by light falling on a light-sensitive surface, usually photographic film or an electronic imager such as a CCD or a CMOS chip. Most photographs are created using a camera, which uses a lens to focus the scene's visible wavelengths of light into a reproduction of...
, film
Film
A film, also called a movie or motion picture, is a series of still or moving images. It is produced by recording photographic images with cameras, or by creating images using animation techniques or visual effects...
, video
Video
Video is the technology of electronically capturing, recording, processing, storing, transmitting, and reconstructing a sequence of still images representing scenes in motion.- History :...
, picture, or computer or computer-generated image or picture" that "is, or appears to be, of a minor
Minor (law)
In law, a minor is a person under a certain age — the age of majority — which legally demarcates childhood from adulthood; the age depends upon jurisdiction and application, but is typically 18...
engaging in sexually explicit conduct." The Court observed that this provision "captures a range of depictions, sometimes called 'virtual child pornography,' which include computer-generated images, as well as images produced by more traditional means." The second prohibited "any sexually explicit image that was advertised, promoted, presented, described, or distributed in such a manner that conveys the impression it depicts a minor engaging in sexually explicit conduct."
The lawsuit
The Free Speech CoalitionFree Speech Coalition
The Free Speech Coalition is a non-profit trade association of the pornography and adult entertainment industry in the United States...
, fearing that Congress's expanded definition of child pornography would endanger their legitimate activities, filed a lawsuit seeking to enjoin enforcement of the CPPA in the United States District Court for the Northern District of California
United States District Court for the Northern District of California
The United States District Court for the Northern District of California is the federal United States district court whose jurisdiction comprises following counties of California: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San...
. They alleged that the first provision, prohibiting images that "appear to be" children engaged in sexual activity, and the second, prohibiting speech that "conveys the impression" that the images depict minors engaged in sexual activity, were overbroad, vague, and had a chilling effect on their legitimate work. The district court disagreed, adding that the overbreadth claim was specious as it was "highly unlikely" that any "adaptations of sexual works like Romeo and Juliet... will be treated as 'criminal contraband.'"
The Ninth Circuit reversed, reasoning that the government could not prohibit speech merely because of its tendency to persuade its viewers to engage in illegal activity. It ruled that the CPPA was substantially overbroad because it prohibited material that was neither obscene nor produced by exploiting real children, as Ferber prohibited. The court declined to reconsider the case en banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
. The government asked the Supreme Court to review the case, and it agreed, noting that the Ninth Circuit's decision conflicted with the decisions of four other circuit courts of appeals. Ultimately the Court agreed with the Ninth Circuit.
Majority opinion
"Congress shall make no law... abridging the freedom of speech," and imposing a criminal sanction on protected speech is a "stark example of speech suppression." At the same time, sexual abuse of children "is a most serious crime and an act repugnant to the moral instincts of a decent people." "Congress may pass valid laws to protect children from abuse, and it has." The great difficulty with the two provisions of the CPPA at issue in this case was that they included categories of speech other than obscenity and child pornography, and thus were overbroad.The Court concluded that the "CPPA prohibits speech despite its serious literary, artistic, political, or scientific value." In particular, it prohibits the visual depiction of teenagers engaged in sexual activity, a "fact of modern society and has been a theme in art and literature throughout the ages." Such depictions include performances of Romeo and Juliet
Romeo and Juliet
Romeo and Juliet is a tragedy written early in the career of playwright William Shakespeare about two young star-crossed lovers whose deaths ultimately unite their feuding families. It was among Shakespeare's most popular archetypal stories of young, teenage lovers.Romeo and Juliet belongs to a...
, by William Shakespeare; the 1996 film William Shakespeare's Romeo + Juliet
William Shakespeare's Romeo + Juliet
William Shakespeare's Romeo + Juliet is a 1996 film adaptation of William Shakespeare's romantic tragedy of the same name. It was directed by Australian Baz Luhrmann and stars Leonardo DiCaprio and Claire Danes in the leading roles....
, directed by Baz Luhrmann
Baz Luhrmann
Mark Anthony "Baz" Luhrmann is an Australian film director, screenwriter, and producer best known for The Red Curtain Trilogy, which includes his films Strictly Ballroom, William Shakespeare's Romeo + Juliet and Moulin Rouge!...
; and the Academy Award winning movies Traffic
Traffic (2000 film)
Traffic is a 2000 American crime drama film directed by Steven Soderbergh and written by Stephen Gaghan. It explores the illegal drug trade from a number of perspectives: a user, an enforcer, a politician and a trafficker. Their stories are edited together throughout the film, although some of the...
and American Beauty
American Beauty (film)
American Beauty is a 1999 American drama film directed by Sam Mendes and written by Alan Ball. Kevin Spacey stars as Lester Burnham, a middle-aged magazine writer who has a midlife crisis when he becomes infatuated with his teenage daughter's best friend, Angela...
. "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."
Thus, the CPPA prohibited speech for a different reason than anti-child pornography laws. Laws prohibiting the distribution and possession of child pornography ban speech because of the manner in which it is produced, regardless of its serious literary or artistic value. But speech prohibited by the CPPA "records no crime and creates no victims by its production." Child pornography is not necessarily without value, but it is illegal because of the harm that making and distributing it necessarily inflicts upon children. Ferber expressly allowed virtual child pornography as an alternative that could preserve whatever literary value child pornography might arguably have while at the same time mitigating the harm caused by making it. The CPPA would eliminate this distinction and punish people for engaging in what had heretofore been a legal alternative.
The Government countered that without the CPPA, child molesters might use virtual child pornography to seduce children. But "there are many things innocent in themselves, however, such as toys, movies, games, video games, candy, money etc. that might be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused." The First Amendment draws a distinction between words and deeds, and does not tolerate banning of mere words simply because those words could lead to bad deeds. Although the CPPA's objective was to prohibit illegal conduct, it went well beyond that goal by restricting speech available to law-abiding adults. And if the goal was to eliminate the market for all child pornography, the Court ruled that the government could not accomplish that goal by eliminating lawful speech in the process. The burden should not, however, fall on the speaker to prove that his speech is lawful, instead of on the government to prove that it is not. Furthermore, such an affirmative defense is "incomplete on its own terms" because it "allows persons to be convicted in some instances where they can prove children were not exploited in the production."
As for the provision that forbade advertising speech so as to convey the impression it depicted minors engaged in sexual conduct, the Court found this provision to be even more sweeping. "Even if a film contains no sexually explicit scenes involving minors, it could be treated as child pornography if the title and trailers convey the impression that the scenes would be found in the movie." Although pandering may be a relevant question in an obscenity prosecution, the "conveys the impression" prohibition forbade speech advertising depictions that were entirely lawful. "The First Amendment requires a more precise restriction" than the one drawn by CPPA.
Dissenting opinion
Chief Justice RehnquistWilliam Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
's dissenting opinion began with a concern that rapidly advancing technology would soon make it very difficult, if not impossible, to distinguish between pornography made with actual children and pornography made with simulated images of children. "Congress has a compelling interest in ensuring the ability to enforce prohibitions of actual child pornography, and we should defer to its findings that rapidly advancing technology soon will make it all but impossible to do so." Rehnquist's dissenting opinion agreed that serious First Amendment concerns would arise if the government actually prosecuted, say, the producers of Traffic
Traffic (2000 film)
Traffic is a 2000 American crime drama film directed by Steven Soderbergh and written by Stephen Gaghan. It explores the illegal drug trade from a number of perspectives: a user, an enforcer, a politician and a trafficker. Their stories are edited together throughout the film, although some of the...
or American Beauty
American Beauty (film)
American Beauty is a 1999 American drama film directed by Sam Mendes and written by Alan Ball. Kevin Spacey stars as Lester Burnham, a middle-aged magazine writer who has a midlife crisis when he becomes infatuated with his teenage daughter's best friend, Angela...
under CPPA. But it had not done so, and Rehnquist believed that the statute did not need to be construed to allow the government to do so. Rehnquist observed that the CPPA banned only depictions of minors engaged in actual sexual activity, not mere suggestions of sexual activity. CPPA simply outlawed "computer-generated images virtually indistinguishable from real children in sexually explicit conduct." None of the films the majority mentioned depicted children engaged in actual sexual activity. And as for the "conveys the impression" provision, Rehnquist categorized this provision as merely an anti-pandering provision. Because one could, by definition, only pander obscenity, and that which the panderer knew to be obscenity in any event, that provision also did not violate the First Amendment.
See also
- Laws regarding child pornographyLaws regarding child pornography94 of 187 Interpol member states had laws specifically addressing child pornography as of 2008. Of those 94 countries, 58 criminalized possession of child pornography regardless of intent to distribute...
- List of United States Supreme Court cases, volume 535
- List of United States Supreme Court cases