Ashcroft v. Free Speech Coalition

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2002 United States Supreme Court case

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), is a U.S. Supreme Court case that 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 U.S. 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 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 .

Background of the case

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Prior case law had established two relevant categories of speech that were outside the protection of the First Amendment. In _Miller v. California _, 413 U.S. 15 (1973), the Court had held that the First Amendment allowed the government to restrict obscenity . And in _New York v. Ferber _, 458 U.S. 747 (1982), the Court held that the government could ban the distribution of child pornography to protect children from the harm inherent in making it. The Court extended Ferber to allow the criminalization of the possession of child pornography in _Osborne v. Ohio _, 495 U.S. 103 (1990).

The statute at issue

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Before 1996, Congress 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".

The lawsuit

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The Free Speech Coalition 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 Supreme Court agreed with the Ninth Circuit.

Opinion

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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 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." 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 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 the banning of mere words simply because those words could lead to bad deeds. Al

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