02Apr16d Argumentation
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ASHCROFT V. FREE SPEECH COALITION (00-795)
Web-accessible at:
http://supct.law.cornell.edu/supct/html/00-795.ZS.html
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Argued October 30, 2001 -- Decided April 16, 2002
Opinion author: Kennedy
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The Child Pornography Prevention Act of 1996 (CPPA) expands the
federal prohibition on child pornography to include not only
pornographic images made using actual children, 18 U.S.C. sect.
2256(8)(A), but also "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,"
sect.2256(8)(B), and any sexually explicit image that is
"advertised, promoted, presented, described, or distributed in
such a manner that conveys the impression" it depicts "a minor
engaging in sexually explicit conduct," sect. 2256(8)(D).
Thus, sect. 2256(8)(B) bans a
range of sexually explicit images,
sometimes called "virtual child pornography," that appear to
depict minors but were produced by means other than using real
children, such as through the use of youthful-looking adults
or computer-imaging technology. Section 2256(8)(D) is aimed at
preventing the production or distribution of pornographic
material pandered as child pornography.
Fearing that the CPPA threatened
their activities, respondents, an
adult-entertainment trade association and others, filed this
suit alleging that the "appears to be" and "conveys the
impression" provisions are overbroad and vague, chilling
production of works protected by the First Amendment.
The District Court disagreed and
granted the Government summary
judgment, but the Ninth Circuit reversed. Generally,
pornography can be banned only if it is obscene under Miller v.
California, 413 U.S. 15, but pornography depicting actual
children can be proscribed whether or not the images are
obscene because of the State's interest in protecting the
children exploited by the production process, New York v.
Ferber, 458 U.S. 747, 758, and in prosecuting those who promote
such sexual exploitation, id., at 761.
The Ninth Circuit held the CPPA
invalid on its face, finding it to be substantially
overbroad because it bans materials that are neither obscene
under Miller nor produced by the exploitation of real children as in Ferber.
The prohibitions of sects.
2256(8)(B) and 2256(8)(D) are
overbroad and unconstitutional. Pp. 6-21.
Section 2256(8)(B) covers
materials beyond the
categories recognized in Ferber and Miller, and the reasons the
Government offers in support of limiting the freedom of speech
have no justification in this Court's precedents or First
Amendment law. Pp. 6-19.
The CPPA is inconsistent with
Miller. It extends
to images that are not obscene under the Miller standard, which
requires the Government to prove that the work in question,
taken as a whole, appeals to the prurient interest, is patently
offensive in light of community standards, and lacks serious
literary, artistic, political, or scientific value, 413 U.S.,
at 24.
Materials need not appeal to the
prurient interest
under the CPPA, which proscribes any depiction of sexually
explicit activity, no matter how it is presented. It is not
necessary, moreover, that the image be patently offensive.
Pictures of what appear to be
17-year-olds engaging in sexually
explicit activity do not in every case contravene community
standards.
The CPPA also prohibits speech
having serious
redeeming value, proscribing the visual depiction of an
idea -- that of teenagers engaging in sexual activity -- that is a
fact of modern society and has been a theme in art and
literature for centuries. A number of acclaimed movies, filmed
without any child actors, explore themes within the wide sweep
of the statute's prohibitions. If those movies contain a
single graphic depiction of sexual activity within the
statutory definition, their possessor would be subject to
severe punishment without inquiry into the literary value of
the work.
This is inconsistent with an
essential First
Amendment rule: A work's artistic merit does not depend on the
presence of a single explicit scene. See, e.g., Book Named
"John Cleland's Memoirs of a Woman of Pleasure" v. Attorney
General of Mass., 383 U.S. 413, 419.
Under Miller, redeeming
value is judged by considering the work as a whole. Where the
scene is part of the narrative, the work itself does not for
this reason become obscene, even though the scene in isolation
might be offensive. See Kois v. Wisconsin, 408 U.S. 229, 231
(per curiam).
The CPPA cannot be read to
prohibit obscenity,
because it lacks the required link between its prohibitions and
the affront to community standards prohibited by the obscenity
definition. Pp. 6-11.
The CPPA finds no support in
Ferber. The Court
rejects the Government's argument that speech prohibited by the
CPPA is virtually indistinguishable from material that may be
banned under Ferber. That case upheld a prohibition on the
distribution and sale of child pornography, as well as its
production, because these acts were "intrinsically related" to
the sexual abuse of children in two ways. 458 U.S., at 759.
First, as a permanent record of a child's abuse, the continued
circulation itself would harm the child who had participated.
See id., at 759, and n. 10.Second, because the traffic in
child pornography was an economic motive for its production,
the State had an interest in closing the distribution network.
Id., at 760.
Under either rationale, the
speech had what the
Court in effect held was a proximate link to the crime from
which it came.
In contrast to the speech in
Ferber, speech
that is itself the record of sexual abuse, the CPPA prohibits
speech that records no crime and creates no victims by its
production. Virtual child pornography is not "intrinsically
related" to the sexual abuse of children.
While the Government
asserts that the images can lead to actual instances of child
abuse, the causal link is contingent and indirect. The harm
does not necessarily follow from the speech, but depends upon
some unquantified potential for subsequent criminal acts.
The Government's argument that
these indirect harms are sufficient
because, as Ferber acknowledged, child pornography rarely can
be valuable speech, see id., at 762, suffers from two flaws.
First, Ferber's judgment about child pornography was based upon
how it was made, not on what it communicated. The case
reaffirmed that where the speech is neither obscene nor the
product of sexual abuse, it does not fall outside the First
Amendment's protection. See id., at 764-765.Second, Ferber did not hold that child pornography is by definition without
value. It recognized some works in this category might have
significant value, see id., at 761, but relied on virtual
images -- the very images prohibited by the CPPA -- as an
alternative and permissible means of expression, id., at 763.
Because Ferber relied on the
distinction between actual and
virtual child pornography as supporting its holding, it
provides no support for a statute that eliminates the
distinction and makes the alternative mode criminal as well.
Pp. 11-13.
The Court rejects other arguments
offered by the
Government to justify the CPPA's prohibitions. The contention
that the CPPA is necessary because pedophiles may use virtual
child pornography to seduce children runs afoul of the
principle that speech within the rights of adults to hear may
not be silenced completely in an attempt to shield children
from it. See, e.g., Sable Communications of Cal., Inc. v. FCC,
492 U.S. 115, 130-131.
That the evil in question depends
upon
the actor's unlawful conduct, defined as criminal quite apart
from any link to the speech in question, establishes that the
speech ban is not narrowly drawn.
The argument that virtual
child pornography whets pedophiles' appetites and encourages
them to engage in illegal conduct is unavailing because the
mere tendency of speech to encourage unlawful acts is not a
sufficient reason for banning it, Stanley v. Georgia, 394 U.S.
557, 566, absent some showing of a direct connection between
the speech and imminent illegal conduct, see, e.g., Brandenburg
v. Ohio, 395 U.S. 444, 447 (per curiam).
The argument that
eliminating the market for pornography produced using real
children necessitates a prohibition on virtual images as well
is somewhat implausible because few pornographers would risk
prosecution for abusing real children if fictional,
computerized images would suffice.
Moreover, even if the
market deterrence theory were persuasive, the argument cannot
justify the CPPA because, here, there is no underlying crime at
all.
Finally, the First
Amendment is turned upside down by the
argument that, because it is difficult to distinguish between
images made using real children and those produced by computer
imaging, both kinds of images must be prohibited.
The overbreadth doctrine
prohibits the Government from banning
unprotected speech if a substantial amount of protected speech
is prohibited or chilled in the process. See Broadrick v.
Oklahoma, 413 U.S. 601, 612.
The Government's rejoinder that
the CPPA should be read not as a prohibition on speech but as a
measure shifting the burden to the accused to prove the speech
is lawful raises serious constitutional difficulties.
The Government misplaces its
reliance on sect. 2252A(c), which
creates an affirmative defense allowing a defendant to avoid
conviction for nonpossession offenses by showing that the
materials were produced using only adults and were not
otherwise distributed in a manner conveying the impression that
they depicted real children.
Even if an affirmative defense
can save a statute from First Amendment challenge, here the
defense is insufficient because it does not apply to possession
or to images created by computer imaging, even where the
defendant could demonstrate no children were harmed in
producing the images.
Thus, the defense leaves
unprotected a
substantial amount of speech not tied to the Government's
interest in distinguishing images produced using real children
from virtual ones. Pp. 13-19.
Section 2256(8)(D) is also substantially overbroad.
The Court disagrees with the
Government's view that the only
difference between that provision and sect. 2256(8)(B)'s
"appears to be" provision is that sect. 2256(8)(D) requires the
jury to assess the material at issue in light of the manner in
which it is promoted, but that the determination would still
depend principally upon the prohibited work's content.
The "conveys the
impression" provision requires little judgment
about the image's content; the work must be sexually explicit,
but otherwise the content is irrelevant. 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 such scenes will be found in the
movie.
The determination turns on how
the speech is presented,
not on what is depicted.
The Government's other arguments
in
support of the CPPA do not bear on sect. 2256(8)(D). The
materials, for instance, are not likely to be confused for
child pornography in a criminal trial. Pandering may be
relevant, as an evidentiary matter, to the question whether
particular materials are obscene. See Ginzburg v. United
States, 383 U.S. 463, 474.
Where a defendant engages in the
"commercial exploitation" of erotica solely for the sake of
prurient appeal, id., at 466, the context created may be
relevant to evaluating whether the materials are obscene.
Section 2256(8)(D), however,
prohibits a substantial amount of
speech that falls outside Ginzburg's rationale. Proscribed
material is tainted and unlawful in the hands of all who
receive it, though they bear no responsibility for how it was
marketed, sold, or described.
The statute, furthermore, does
not require that the context be part of an effort at
"commercial exploitation."
Thus, the CPPA does more than
prohibit pandering. It bans possession of material pandered as
child pornography by someone earlier in the distribution chain,
as well as a sexually explicit film that contains no youthful
actors but has been packaged to suggest a prohibited movie.
Possession is a crime even when the possessor knows the movie
was mislabeled. The First Amendment requires a more precise
restriction. Pp. 19-20.
In light of the foregoing,
respondents' contention
that sects. 2256(8)(B) and 2256(8)(D) are void for vagueness
need not be addressed. P. 21.
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198 F.3d 1083, affirmed.
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Kennedy, J., delivered the opinion of the Court, in which
Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Thomas,
J., filed an opinion concurring in the judgment. O'Connor, J.,
filed an opinion concurring in the judgment in part and
dissenting in part, in which Rehnquist, C. J., and Scalia, J.,
joined as to Part II. Rehnquist, C. J., filed a dissenting
opinion, in which Scalia, J., joined except for the paragraph
discussing legislative history.
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