Child Pornography Prevention Act of 1996
- Barred the sale and distribution of computer-generated images that "appear" to depict minors performing sexually explicit acts.
- Drawings, cartoons, sculptures and paintings were not included in the law.
- First and 11th U.S. Courts of Appeals: "appears to be minors" is not vague.
- Ordinary people can tell the difference between minors and adults pictured.
- Ninth Circuit found the law overbroad because there was no explicit standard explaining what "appears to be minors" means.
- Also held the CPPA substantially overbroad because it bans materials that are neither obscene under Miller nor produced by the exploitation of real children as in Ferber.
ASHCROFT v. FREE SPEECH COALITION
(April 16, 2002)
- Generally, pornography can be banned only if it is obscene under Miller v. California.
- But child pornography can be banned even if the images are not obscene because of the state's interest in protecting the children exploited by the production process and in prosecuting those who promote such sexual exploitation (New York v. Ferber).
USSC agreed that CPPA is overbroad and unconstitutional.
- The USSC held:
(1) CPPA extends to images that are not obscene under Miller.
a. CPPA bans any depiction of sexually-explicit activity, no matter how it is presented, so the material need not appeal to the prurient interest.
(2) CPPA not supported by Ferber.
"The CPPA applies to a picture in a psychology manual, as well as a movie depicting the horrors of sexual abuse."
b. Under CPPA, not necessary that the image be patently offensive.
c. CPPA bans speech "having serious literary, artistic, political, or scientific value ... proscribing 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 for centuries."
Noted that CPPA bans images in which the people appear to be under 18.
"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."
"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."
Noted that "Traffic" and "American Beauty" included themes of teen sex that fall within the statute's ban.
"If these films ... contain a single graphic depiction of sexual activity within the statutory definition, the possessor would be subject to severe punishment without inquiry into the work's redeeming value.
"This is inconsistent with an essential First Amendment rule: A work's artistic merit does not depend on the presence of a single explicit scene."
- Ferber outlawed child porn because it intrinsically related to the sexual abuse of children in two ways:
1. As a permanent record of a child's abuse, the continued circulation itself would harm the child who had participated.
2. The traffic in child pornography was an economic motive for its production.
For each reason, the speech had "a proximate link to the crime from which it came."
But 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."
- Contention that virtual child pornography whets pedophiles appetites and encourages them to engage in illegal conduct is unavailing because:
- "The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it."
- "May suppress speech for advocating 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." (Brandenburg v. Ohio)
- Argument that eliminating the market for pornography produced by using real children necessitates a prohibition on virtual images as well is "somewhat implausible" because "few pornographers would risk prosecution for abusing real children if fictional, computerized images would suffice."
- The First Amendment is turned upside down by the argument that because it is difficult to distinguish between images made using real children and those produced by computer imaging, both kinds of images must be prohibited.
"The overbreadth doctrine prohibits the government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process."
- Kennedy delivered the opinion of the Court.
(Stevens, Souter, Ginsburg and Breyer)
- Thomas concurred.
- O'Connor concurred/dissented in part
(Rehnquist and Scalia joined in part)
- Rehnquist dissented
(Scalia joined except for the paragraph discussing legislative history)
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