Amendment 1 — Child Pornography

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First Amendment :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In New York v. Ferber,[1](https://www.law.cornell.edu/constitution-conan/amendment-1/child-pornography#fn1amd1 " 458 U.S. 747 (1982). The Court’s decision was unanimous, although there were several limiting concurrences. Compare, e.g., id. at 775 (Justice William Brennan, arguing for exemption of “material with serious literary, scientific, or educational value” ), with id. at 774 (Justice O’Connor, arguing that such material need not be excepted). The Court did not pass on the question, inasmuch as the materials before it were well within the prohibitable category. Id. at 766–74. ") the Court recognized another category of expression that is outside the coverage of the First Amendment : the visual depiction of children in films or still photographs in a variety of sexual activities or exposures of the genitals. The reason that such depictions may be prohibited was the governmental interest in protecting the physical and psychological well-being of children, whose participation in the production of these materials would subject them to exploitation and harm. The state may go beyond a mere prohibition of the use of children, because it is not possible to protect children adequately without prohibiting the exhibition and dissemination of the materials and advertising about them. Thus, the Court held that “the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required.” [2](https://www.law.cornell.edu/constitution-conan/amendment-1/child-pornography#fn2amd1 " Id. at 763–64. ") But, because expression is involved, the government must carefully define what conduct is to be prohibited and may reach only “works that visually depict sexual conduct by children below a specified age.” [3](https://www.law.cornell.edu/constitution-conan/amendment-1/child-pornography#fn3amd1 " Id. at 764 (emphasis original). Child pornography need not meet Miller obscenity standards to be unprotected by the First Amendment. Id. at 764–65. ")

The Court has considered cases addressing the private possession of child pornography in the home. In Osborne v. Ohio[4](https://www.law.cornell.edu/constitution-conan/amendment-1/child-pornography#fn4amd1 " 495 U.S. 103 (1990). ") the Court upheld a state law criminalizing possessing or viewing of child pornography as applied to someone who possessed such materials in his home. Distinguishing a prior case protecting the personal possession of obscene material, the Court ruled that Ohio’s interest in preventing exploitation of children far exceeded what it characterized as Georgia’s “paternalistic interest” in protecting the minds of adult viewers of obscene material.[5](https://www.law.cornell.edu/constitution-conan/amendment-1/child-pornography#fn5amd1 " Id at 108. ") Because the state’s interest in regulating child pornography was of greater importance, the Court saw less need to require states to demonstrate a strong necessity for regulating private possession in addition to the commercial distribution and sale.

In Ashcroft v. Free Speech Coalition, the Court held unconstitutional the federal Child Pornography Prevention Act (CPPA) to the extent that it prohibited pictures that were not produced with actual minors.[6](https://www.law.cornell.edu/constitution-conan/amendment-1/child-pornography#fn6amd1 " 535 U.S. 234 (2002). ") The law prohibited computer-generated ( “virtual” ) child pornography, and photographs of adult actors who appeared to be minors, and could have extended to “a Renaissance painting depicting a scene from classical mythology.” [7](https://www.law.cornell.edu/constitution-conan/amendment-1/child-pornography#fn7amd1 " Id. at 241. ") The Court observed that statutes prohibiting child pornography that uses real children are constitutional because they target “[t]he production of the work, not the content.” [8](https://www.law.cornell.edu/constitution-conan/amendment-1/child-pornography#fn8amd1 " Id. at 249; see also id. at 241. ") The CPPA, by contrast, targeted the content, not the means of production. The government’s rationales for the CPPA included that “[p]edophiles might use the materials to encourage children to participate in sexual activity” and might “whet their own sexual appetites” with it, “thereby increasing . . . the sexual abuse and exploitation of actual children.” [9](https://www.law.cornell.edu/constitution-conan/amendment-1/child-pornography#fn9amd1 " Id.. ") The Court found these rationales inadequate because the government “cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts” and “may not prohibit speech because it increases the chance an unlawful act will be committed ‘at some indefinite future time.’” [10](https://www.law.cornell.edu/constitution-conan/amendment-1/child-pornography#fn10amd1 " Id. at 253. ") The government had also argued that the existence of “virtual” child pornography “can make it harder to prosecute pornographers who do use real minors,” because, “[a]s imaging technology improves . . . , it becomes more difficult to prove that a particular picture was produced using actual children.” [11](https://www.law.cornell.edu/constitution-conan/amendment-1/child-pornography#fn11amd1 " Id. at 242. ") This rationale, the Court found, “turns the First Amendment upside down. The Government may not suppress lawful speech as a means to suppress unlawful speech.” [12](https://www.law.cornell.edu/constitution-conan/amendment-1/child-pornography#fn12amd1 " Id. at 255. Following Ashcroft v. Free Speech Coalition, Congress enacted the PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650 (2003), which, despite the decision in that case, defined “child pornography” so as to continue to prohibit computer-generated child pornography (but not other types of child pornography produced without an actual minor). 18 U.S.C. § 2256 (8)(B). In United States v. Williams, 128 S. Ct. 1830, 1836 (2008), the Court, without addressing the PROTECT Act’s new definition, cited Ashcroft v. Free Speech Coalition with approval. ")

In United States v. Williams,[13](https://www.law.cornell.edu/constitution-conan/amendment-1/child-pornography#fn13amd1 " 553 U.S. 285 (2008). ") the Supreme Court upheld a federal statute that prohibits knowingly advertising, promoting, presenting, distributing, or soliciting material “in a manner that reflects the belief, or that is intended to cause another to believe, that the material” is child pornography that is obscene or that depicts an actual minor (that is, is child pornography that is not constitutionally protected).[14](https://www.law.cornell.edu/constitution-conan/amendment-1/child-pornography#fn14amd1 " 18 U.S.C. § 2252A(a)(3)(B). ") Under the provision, in other words, “an Internet user who solicits child pornography from an undercover agent violates the statute, even if the officer possesses no child pornography. Likewise, a person who advertises virtual child pornography as depicting actual children also falls within the reach of the statute.” [15](https://www.law.cornell.edu/constitution-conan/amendment-1/child-pornography#fn15amd1 " 128 S. Ct. at 1839. ") The Court found that these activities are not constitutionally protected because “[o]ffers to engage in illegal transactions [as opposed to abstract advocacy of illegality] are categorically excluded from First Amendment protection,” even “when the offeror is mistaken about the factual predicate of his offer,” such as when the child pornography that one offers to buy or sell does not exist or is constitutionally protected.[16](https://www.law.cornell.edu/constitution-conan/amendment-1/child-pornography#fn16amd1 " 128 S. Ct. at 1841, 1842, 1843. In a dissenting opinion joined by Justice Ruth Bader Ginsburg, Justice David Souter agreed that “Congress may criminalize proposals unrelated to any extant image,” but disagreed with respect to “proposals made with regard to specific, existing [constitutionally protected] representations.” Id. at 1849. Justice David Souter believed that, “if the Act stands when applied to identifiable, extant [constitutionally protected] pornographic photographs, then in practical terms Ferber and Free Speech Coalition fall. They are left as empty as if the Court overruled them formally” Id. at 1854. Justice Antonin Scalia’s opinion for the majority replied that this “is simply not true . . . Simulated child pornography will be as available as ever, so long as it is offered and sought as such, and not as real child pornography . . . There is no First Amendment exception from the general principle of criminal law that a person attempting to commit a crime need not be exonerated because he has a mistaken view of the facts.” Id. at 1844–45. ")

However, the principles applying to child pornography do not extend to protecting children from encountering sexually explicit material. Although the government has a “compelling” interest in protecting children from seeing or hearing indecent material, total bans applicable to adults and children alike are constitutionally suspect.[17](https://www.law.cornell.edu/constitution-conan/amendment-1/child-pornography#fn17amd1 " See Sable Commc’ns v. FCC, 492 U.S. 115 (1989) (FCC’s “dial-a-porn” rules imposing a total ban on “indecent” speech are unconstitutional, given less restrictive alternatives—e.g., credit cards or user IDs—of preventing access by children). Pacifica Foundation is distinguishable, the Court reasoned, because that case did not involve a “total ban” on broadcast, and also because there is no “captive audience” for the “dial-it” medium, as there is for the broadcast medium. 492 U.S. at 127–28. Similar rules apply to regulation of cable TV. In Denver Area Educ. Telecommc’ns Consortium 518 U.S. 727, 755 (1996), the Court, acknowledging that protection of children from sexually explicit programming is a “compelling” governmental interest (but refusing to determine whether strict scrutiny applies), nonetheless struck down a requirement that cable operators segregate and block indecent programming on leased access channels. The segregate-and-block restrictions, which included a requirement that a request for access be in writing, and which allowed for up to thirty days’ delay in blocking or unblocking a channel, were not sufficiently protective of adults’ speech and viewing interests t