Ashcroft Brief Essay

Facts: In 1996 Congress passed the federal Child Pornography Protection Act (CPPA) which extended federal prohibition against child pornography to sexually explicit images that appear to depict minors but that were actually produced without using real children. The CPPA statute in question prohibited the possession or distribution of images that could be created by using adults who look like minors or by using computer imaging.

The Free Speech Coalition (FSC) brought a lawsuit in federal district court against Attorney General Ashcroft and the United States Government based on the fact that the CPPA violated the First Amendment as it “vague” and “overbroad”. The district court upheld the CPPA. The court of appeals, however, reversed the decision claiming that the CPPA was unconstitutionally broad.

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The United States Supreme Court granted certiorari to resolve this issue. Procedural History: The Free Speech Coalition made up by an association of various businesses, all of which were involved in the production and distribution of “adult oriented materials brought a lawsuit in the United States District Court of the Northern District of California. They alleged that the provisions added to the CPPA statutes were overbroad and vague.

The United States Northern District of California ruled in favor of the government’s motion for summary judgment. The Free Speech Coalition then appealed the district court’s decision, and the Court of Appeals for the Ninth Circuit reversed the district court’s. The Ninth Circuit court indicated that the government cannot prohibit speech only because it may incite someone to engage in an illegal act. A writ of certiorari was granted for the United States Supreme Court. Issue(s):

Whether the federal Child Pornography Protection Act of 1996 (CPPA) unconstitutionally restricted speech in violation of the First Amendment because it proscribes a significant volume of speech that is not obscene under Miller and not child pornography under Ferber. Holding: Yes. Justice Kenedy in his decision indicated that all the sections in question for the Pornography Prevention Act of 1996 were unconstitutionally overbroad. The Supreme Court affirmed the judgment of the Court of Appeals. Reasoning:

The First Amendment of the Constitution states that “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” The Child Pornography Protection Act of 1996 prohibits any visual depiction, whether virtual child pornography, Renaissance paintings, or Hollywood movies, that mimics a minor engaging in sexual conduct.

The statute does not take into account how the work was produced, or whether any actual children were harmed in production. The United States indicated that the CPPA is necessary to prevent indirect harm of children in several ways. Firstly, pedophiles can use depictions of children engaged in sexual acts to convince actual children to participate in sexual activity with adults. Secondly, the pornographic images stimulate and motivate pedophiles. Pedophiles will seek out more works of child pornography and product demand will encourage the sexual abuse and exploitation of actual children.

Finally, the existence of highly realistic, computer-generated images could make it harder to prosecute pornographers that used real minors because of the difficulty in determining whether real children were used. In contrast, the FSC argues that the “appears to be” text in the CPPA is substantially overbroad because it prohibits significant lawful expression, and applies severe penalties for even the possession of material that appears to depict real children engaged in sexual acts.

To hold that works containing a single explicit act by a minor are unprotected under Ferber’s prohibition of child pornography is inconsistent with Ferber for two reasons. Firstly, Ferber’s judgment about child pornography is based upon how it is made, not on what it communicates. Secondly, Ferber does not hold that child pornography is by definition without value. On the contrary, the Ferber Court recognized that some instances of child pornography could be considered valuable and protected if made by virtual children .

This distinction is central to Ferber’s holding. The CPPA goes beyond Ferber, prohibiting virtual images of children and criminalizing works that do not use real children. Additionally, the CPPA goes beyond the Court’s prior holding in Miller. In Miller the court indicated that following standard to determine what is considered obscene: “(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 354 U. S. 89, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary”.

The CPPA criminalizes all works depicting virtual images of children engaging in sexual activity, regardless of whether these works meet the legal definition of “obscenity. Thus, the CPPA is inconsistent with Miller and finds no support in Ferber. The government’s argument that virtual child pornography might encourage pedophiles to seduce real children is rejected. The mere fact that children can view acceptable speech for adults is not enough to find that speech unprotected by the First Amendment. Additionally, the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.

The government’s argument that virtual child pornography is basically indistinguishable from actual child pornography is also rejected because if this is the case, it is doubtful anyone would ever risk criminal sanctions by using real children in pornography. Finally, the government’s position that makers of virtual pornography are more difficult to prosecute than makers of actual child pornography is rejected because it is inconsistent with the First Amendment to criminalize a wide range of protected speech for the purpose of criminalizing limited unprotected peech. The CPPA is overbroad and unconstitutional. Disposition of the Case: The decision of the court of appeals is affirmed. Dissent(Rehnquist, C. J. ) Congress has a compelling interest in ensuring the ability to enforce prohibitions of actual child pornography, and the majority should have deferred to Congress’s findings that rapidly advancing technology would soon make it nearly impossible to do so. Concurrence/Dissent(O’Connor, J. ) While the result reached by the majority is correct, its reasoning is flawed.

The majority oversteps in criminalizing pornography depicting teenagers having sex when that work has serious literary, artistic, social, or political value. Additionally, the CPPA is not overbroad, does not fail strict scrutiny, and is not unconstitutionally vague. Strict scrutiny is satisfied because the government has long been recognized as having a compelling interest in protecting America’s children. Efforts targeting sexual offenders and actual-child pornography promote this interest.