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Ashcroft v. Free Speech Coalition

Supreme Court of the United States

October 30, 2001, Argued ; April 16, 2002, Decided

No. 00-795

Opinion

 [**1396]   [***414]   [*239]  JUSTICE KENNEDY delivered the opinion of the Court.

 We consider in this case whether the Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. § 2251 et seq., abridges the freedom of speech. ] The CPPA extends the federal prohibition against child pornography to sexually explicit images that appear to depict minors but were produced without using any real children. The statute prohibits, in specific circumstances, possessing or distributing these images, which may be created by using adults who  [*240]  look like minors or by using computer imaging. The new technology, according to Congress,  [****13]  makes it possible to create realistic images of children who do not exist. See Congressional Findings, notes following 18 U.S.C. § 2251.

 By prohibiting child pornography that does not depict an actual child, the statute goes beyond New York v. Ferber, 458 U.S. 747, 73 L. Ed. 2d 1113, 102 S. Ct. 3348 (1982), which distinguished child pornography from other sexually explicit speech because of the State's interest in protecting the children exploited by the production process. See id. at 758. ] As a general rule, pornography can be banned only if obscene, but under Ferber, pornography showing minors can be proscribed whether or not the images are obscene under the definition set forth in Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973). Ferber recognized that "the Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State's particular and more compelling interest in prosecuting those who promote the sexual exploitation of children." 458 U.S. at 761.

 While we have not had occasion to consider the question, we may assume that the apparent age of persons engaged in sexual conduct [****14]  is relevant to whether a depiction offends community standards. Pictures of young children engaged in certain acts might be obscene where similar depictions of adults, or perhaps even older adolescents, would not. The  [***415]  CPPA, however, is not directed at speech that is obscene; Congress has proscribed those materials through a separate statute. 18 U.S.C. §§ 1460-1466. Like the law in Ferber, the CPPA seeks to reach beyond obscenity, and it makes no attempt to conform to the Miller standard. For instance, the statute would reach visual depictions, such as movies, even if they have redeeming social value.

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535 U.S. 234 *; 122 S. Ct. 1389 **; 152 L. Ed. 2d 403 ***; 2002 U.S. LEXIS 2789 ****; 70 U.S.L.W. 4237; 30 Media L. Rep. 1673; 2002 Cal. Daily Op. Service 3211; 2002 Daily Journal DAR 4033; 15 Fla. L. Weekly Fed. S 187

JOHN D. ASHCROFT, ATTORNEY GENERAL, ET AL., PETITIONERS v. THE FREE SPEECH COALITION ET AL.

Subsequent History: Costs and fees proceeding at Gonzales v. Free Speech Coalition, 2005 U.S. App. LEXIS 9350 (9th Cir. Cal., May 23, 2005)

Prior History:  [****1]  ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

Free Speech Coalition v. Reno, 198 F.3d 1083, 1999 U.S. App. LEXIS 32704 (9th Cir. Cal., 1999)

Disposition: 198 F.3d 1083, affirmed.

CORE TERMS

images, child pornography, depictions, pornography, sexually explicit, ban, First Amendment, prohibits, adult, obscene, minors, sexual, engaging, film, visual, impression, pictures, conveys, virtual-child, appears, movie, affirmative defense, youthful-adult, overbroad, sexual activity, suppress, indistinguishable, exploitation, pandered, distributed

Constitutional Law, Fundamental Freedoms, Freedom of Speech, Obscenity, Criminal Law & Procedure, Child Pornography, Employing Minor to Engage in Child Pornography, Elements, Crimes Against Persons, Sex Crimes, General Overview, Scope, Juvenile Offenders, Sentencing, Confinement Practices, Penalties, Sexual Assault, Abuse of Children, Adjustments & Enhancements, Criminal History, Three Strikes, Judicial & Legislative Restraints, Overbreadth & Vagueness of Legislation, Bill of Rights, Governments, Legislation, Overbreadth, Family Law, Family Protection & Welfare, Children, Abuse, Endangerment & Neglect, Congressional Duties & Powers, Defamation, Civil Procedure, In Rem & Personal Jurisdiction, In Personam Actions, Parental Duties & Rights, Consent, Marriage, Trials, Burdens of Proof, Defense, Prosecution, Defenses