Ashcroft v. Free Speech Coalition
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''Ashcroft v. Free Speech Coalition'', 535 U.S. 234 (2002), is a
U.S. Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
case which struck down two
overbroad In American jurisprudence, the overbreadth doctrine is primarily concerned with facial challenges to laws under the First Amendment. Description When federal or state laws are challenged in the United States court system for their constitutiona ...
provisions of the
Child Pornography Prevention Act of 1996 The Child Pornography Prevention Act of 1996 (CPPA) was a United States federal law to restrict child pornography on the internet, including virtual child pornography. Before 1996, Congress defined child pornography with reference to the ''Ferber' ...
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 The Free Speech Coalition (FSC) is a non-profit industry trade group, trade association of the pornography and Sex industry, adult entertainment industry in the United States. Founded in 1991, it opposes the passage and enforcement of obscenity l ...
, a "
California California is a U.S. state, state in the Western United States, located along the West Coast of the United States, Pacific Coast. With nearly 39.2million residents across a total area of approximately , it is the List of states and territori ...
trade association for the adult-entertainment industry", along with Bold Type, Inc., a "publisher of a book advocating the
nudist Naturism is a lifestyle of practising non-sexual social nudity in private and in public; the word also refers to the cultural movement which advocates and defends that lifestyle. Both may alternatively be called nudism. Though the two terms ar ...
lifestyle"; Jim Gingerich, who paints nudes; and Ron Raffaelli, a photographer who specialized in erotic images. 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 or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and rec ...
.


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. California ''Miller v. California'', 413 U.S. 15 (1973), was a landmark decision of the U.S. Supreme Court modifying its definition of obscenity from that of "utterly without socially redeeming value" to that which lacks "serious literary, artistic, politi ...
'', , the Court had held that the First Amendment allowed the government to restrict
obscenity An obscenity is any utterance or act that strongly offends the prevalent morality of the time. It is derived from the Latin ''obscēnus'', ''obscaenus'', "boding ill; disgusting; indecent", of uncertain etymology. Such loaded language can be use ...
. And in ''
New York v. Ferber ''New York v. Ferber'', 458 U.S. 747 (1982), was a landmark decision of the U.S Supreme Court, unanimously ruling that the First Amendment to the United States Constitution did not forbid states from banning the sale of material depicting childre ...
'', , the Court held that the government could ban the distribution of
child pornography Child pornography (also called CP, child sexual abuse material, CSAM, child porn, or kiddie porn) is pornography that unlawfully exploits children for sexual stimulation. It may be produced with the direct involvement or sexual assault of a chi ...
to protect children from the harm inherent in making it. The Court extended ''Ferber'' to allow the criminalization of the mere possession of child pornography in ''
Osborne v. Ohio ''Osborne v. Ohio'', 495 U.S. 103 (1990), is a U.S. Supreme Court case in which the Court held that the First Amendment to the United States Constitution allows states to outlaw the possession, as distinct from the distribution, of child pornograph ...
'', .''
Osborne v. Ohio ''Osborne v. Ohio'', 495 U.S. 103 (1990), is a U.S. Supreme Court case in which the Court held that the First Amendment to the United States Constitution allows states to outlaw the possession, as distinct from the distribution, of child pornograph ...
'',


The statute at issue

Before 1996,
Congress A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of a ...
defined child pornography with reference to the ''Ferber'' standard. In passing the
Child Pornography Prevention Act of 1996 The Child Pornography Prevention Act of 1996 (CPPA) was a United States federal law to restrict child pornography on the internet, including virtual child pornography. Before 1996, Congress defined child pornography with reference to the ''Ferber' ...
, 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 A photograph (also known as a photo, image, or picture) is an image created by light falling on a photosensitive surface, usually photographic film or an electronic image sensor, such as a CCD or a CMOS chip. Most photographs are now create ...
,
film A film also called a movie, motion picture, moving picture, picture, photoplay or (slang) flick is a work of visual art that simulates experiences and otherwise communicates ideas, stories, perceptions, feelings, beauty, or atmosphere ...
,
video Video is an electronic medium for the recording, copying, playback, broadcasting, and display of moving visual media. Video was first developed for mechanical television systems, which were quickly replaced by cathode-ray tube (CRT) syste ...
,
picture An image is a visual representation of something. It can be two-dimensional, three-dimensional, or somehow otherwise feed into the visual system to convey information. An image can be an artifact, such as a photograph or other two-dimensiona ...
, or computer or
computer-generated image Computer-generated imagery (CGI) is the use of computer graphics to create or contribute to images in art, printed media, video games, simulators, and visual effects in films, television programs, shorts, commercials, and videos. The images may ...
or picture" that "is, or appears to be, of a
minor Minor may refer to: * Minor (law), a person under the age of certain legal activities. ** A person who has not reached the age of majority * Academic minor, a secondary field of study in undergraduate education Music theory *Minor chord ** Barb ...
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 Coalition The Free Speech Coalition (FSC) is a non-profit industry trade group, trade association of the pornography and Sex industry, adult entertainment industry in the United States. Founded in 1991, it opposes the passage and enforcement of obscenity l ...
, 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 The United States District Court for the Northern District of California (in case citations, N.D. Cal.) is the federal United States district court whose jurisdiction comprises the following counties of California: Alameda, Contra Costa, Del ...
. 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 The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District o ...
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 In American jurisprudence, the overbreadth doctrine is primarily concerned with facial challenges to laws under the First Amendment. Description When federal or state laws are challenged in the United States court system for their constitutiona ...
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 In law, an en banc session (; French for "in bench"; also known as ''in banc'', ''in banco'' or ''in bank'') is a session in which a case is heard before all the judges of a court (before the entire bench) rather than by one judge or a smaller ...
. 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 Supreme Court agreed with the Ninth Circuit.


Opinion

The First Amendment provides that "Congress shall make no law... abridging the freedom of speech". The Court opined that imposing a criminal sanction on protected speech is a "stark example of speech suppression", but at the same time, that 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 Adolescence () is a transitional stage of physical and psychological development that generally occurs during the period from puberty to adulthood (typically corresponding to the age of majority). Adolescence is usually associated with the te ...
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'' is a Shakespearean tragedy, tragedy written by William Shakespeare early in his career about the romance between two Italian youths from feuding families. It was among Shakespeare's most popular plays during his lifetim ...
'', by William Shakespeare; the 1996 film ''
William Shakespeare's Romeo + Juliet William is a male given name of Germanic origin.Hanks, Hardcastle and Hodges, ''Oxford Dictionary of First Names'', Oxford University Press, 2nd edition, , p. 276. It became very popular in the English language after the Norman conquest of Engl ...
'', directed by
Baz Luhrmann Mark Anthony Luhrmann (born 17 September 1962), known professionally as Baz Luhrmann, is an Australian film director, producer, writer and actor. With projects spanning film, television, opera, theatre, music and recording industries, he is re ...
; and the
Academy Award The Academy Awards, better known as the Oscars, are awards for artistic and technical merit for the American and international film industry. The awards are regarded by many as the most prestigious, significant awards in the entertainment ind ...
winning movies ''
Traffic Traffic comprises pedestrians, vehicles, ridden or herded animals, trains, and other conveyances that use public ways (roads) for travel and transportation. Traffic laws govern and regulate traffic, while rules of the road include 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." ''Ferber'' did not hold that child pornography is "by definition without value", but that 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 value child pornography might 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 Child sexual abuse (CSA), also called child molestation, is a form of child abuse in which an adult or older adolescent uses a child for sexual stimulation. Forms of child sexual abuse include engaging in sexual activities with a child (whet ...
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. 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 Rehnquist William Hubbs Rehnquist ( ; October 1, 1924 – September 3, 2005) was an American attorney and jurist who served on the Supreme Court of the United States, U.S. Supreme Court for 33 years, first as an Associate justice of the Supreme Court of ...
put forth a
dissenting opinion A dissenting opinion (or dissent) is an opinion in a legal case in certain legal systems written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment. Dissenting opinions are no ...
, which 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 comprises pedestrians, vehicles, ridden or herded animals, trains, and other conveyances that use public ways (roads) for travel and transportation. Traffic laws govern and regulate traffic, while rules of the road include 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. 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

*
Child pornography laws in the United States Child pornography laws in the United States specify that child pornography is illegal under federal law and in all states and is punishable by up to 20 years' imprisonment or a fine of $5000. The Supreme Court of the United States has found child ...
*
List of United States Supreme Court cases, volume 535 This is a list of all the United States Supreme Court cases from volume 535 of the ''United States Reports The ''United States Reports'' () are the official record ( law reports) of the Supreme Court of the United States. They include rulings, ...
*
List of United States Supreme Court cases This page serves as an index of lists of United States Supreme Court cases. The United States Supreme Court is the highest federal court of the United States. By Chief Justice Court historians and other legal scholars consider each Chief J ...


References


External links

* *
Transcript of oral argumentFree Speech Coalition
{{US1stAmendment, speech, state=expanded United States Supreme Court cases United States obscenity case law United States Internet case law 2002 in United States case law United States Supreme Court cases of the Rehnquist Court