Ashcroft v. Free Speech Coalition
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Ashcroft v. Free Speech Coalition | |
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Holding | |
The prohibitions of §§ 2256(8)(B) and 2256(8)(D) are unconstitutional because they abridged "the freedom to engage in a substantial amount of lawful speech". United States Court of Appeals for the Ninth Circuit affirmed. | |
Court membership | |
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Case opinions | |
Majority | Kennedy, joined by Stevens, Souter, Ginsburg, Breyer |
Concurrence | Thomas (in judgment) |
Concur/dissent | O'Connor, joined by Rehnquist, Scalia (Part II) |
Dissent | Rehnquist, joined by Scalia (except for paragraph discussing legislative history) |
Laws applied | |
U.S. Const. amend. I; Child Pornography Prevention Act of 1996 | |
Superseded by | |
Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act 2003 in part, c.f. 18 U.S.C. § 1466A[1] |
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), is a
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, 413 U.S. 15 (1973),[3] 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),[4] 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).[5]
The statute at issue
Before 1996,
The lawsuit
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
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
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,
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 put forth a dissenting opinion, 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 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.
Attempts to supersede (and superseding by PROTECT Act)
Almost immediately after its decision in April 2002, and until April 2003, Congress made several attempts to supersede the Supreme Court's decision,
Between April 2002 and April 2003, Congress attempted to override the Supreme Court's decisions using numerous bills, including the Child Obscenity and Pornography Prevention Act of 2002[10] (introduced on April 30, 2002, and which passed the House in October 2002 but did not pass the Senate[11]) and the Child Obscenity and Pornography Prevention Act of 2003[12] (which was eventually incorporated into the PROTECT Act of 2003). On April 30, 2003, President George W. Bush signed the PROTECT Act of 2003 into law, which partially superseded the Court's decision.[dubious ]
See also
- Child pornography laws in the United States
- List of United States Supreme Court cases, volume 535
- List of United States Supreme Court cases
References
- ^ "18 U.S. Code § 1466A - Obscene visual representations of the sexual abuse of children". LII / Legal Information Institute. Retrieved October 1, 2023.
- ^ Ashcroft v. Free Speech Coalition, 535 U.S. 234, 256 (2002).
- ^ Miller v. California, 413 U.S. 15 (1973)
- ^ New York v. Ferber, 458 U.S. 747 (1982)
- ^ Osborne v. Ohio, 495 U.S. 103 (1990)
- ^ a b Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999).
- ^ Free Speech Coalition v. Reno, 220 F.3d 1113 (9th Cir. 2000).
- ^ Stout, David (April 16, 2002). "Supreme Court Strikes Down Ban on Virtual Child Pornography". The New York Times. Retrieved October 1, 2023.
- ^ "CHILD OBSCENITY AND PORNOGRAPHY PREVENTION ACT OF 2002; Congressional Record Vol. 148, No. 86 (Remarks by James F. Sensenbrenner)". congress.gov. Retrieved October 1, 2023.
- ^ "Child Obscenity and Pornography Prevention Act of 2002". April 30, 2002.
- ^ "H.R. 4623 Referred in Senate" (PDF). June 26, 2002. Retrieved October 1, 2023.
- ^ "H.R.1161 - Child Obscenity and Pornography Prevention Act of 2003". March 11, 2003. Retrieved October 1, 2023.
External links
- Works related to Ashcroft v. Free Speech Coalition at Wikisource
- Text of Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) is available from: Cornell CourtListener Findlaw Google Scholar Justia OpenJurist Oyez (oral argument audio)
- Transcript of oral argument
- Brief of the ACLU
- Brief of the Solicitor General
- Free Speech Coalition