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Case Summary for Ashcroft v. Free Speech Coalition |
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| Argued: | Oct. 30, 2001 | | Decided: | April 16, 2002 | | Issue: | Freedom of Speech — Whether two provisions of a federal law that criminalize computer-generated images of minors engaged in sexually explicit conduct, but which do not necessarily involve actual minors, violate the First Amendment. | | Vote: | 6-3 on the "appears to be a minor" provision; 7-2 on the "conveys the impression" provision | | Holding: | Yes, the majority of the court struck down the "appears to be" and "conveys the impression" provisions of the Child Pornography Prevention Act. | | Decisions Below: | The decision of the district court is unpublished. The decision of the panel of the 9th U.S. Circuit Court of Appeals is reported as Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999). The decision of the 9th Circuit denying full panel review is reported as Free Speech Coalition v. Reno, 220 F.3d 1113 (9th Cir. 2000). | | Facts: | In 1996, Congress passed the Child Pornography Prevention Act of 1996 (CPPA) to deal with computer technology used to produce images looking like real children. The law included in its definition of child pornography sexually explicit material that (1) depicts persons who "appear to be minors;" and (2) is advertised as conveying the impression that the person depicted is a minor. On January 27, 1997, the Free Speech Coalition, an adult trade association, and others filed a federal lawsuit challenging the constitutionality of the CPPA. The complaint alleged that the "appears to be a minor" and "conveys the impression" clauses of the CPPA violate the First Amendment and are unconstitutionally vague. Later that year, a federal district court issued an order upholding the constitutionality of the CPPA and granting summary judgment to the government. The district judge ruled that the CPPA is a content-neutral law aimed at the harmful secondary effects associated with virtual child pornography. In December 1999, a three-judge panel of the 9th Circuit ruled 2-1 in favor of Free Speech Coalition. The panel majority determined that the two challenged provisions violate the First Amendment, writing: "censorship through the enactment of criminal laws intended to control an evil idea cannot satisfy the constitutional requirements of the First Amendment." | | Reasoning: | The challenged provisions of the CPPA prohibit more speech than child pornography that involves the use of actual children. Before this new law, Congress defined child pornography as images made using actual minors. "In contrast to the speech in Ferber [child pornography case], speech that itself is the record of sexual abuse, the CPPA prohibits speech that records no crime and creates no victims by its production." The government has failed to show a causal link between computer-generated images of child porn and harm to actual children. "The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts." Both the "appears to be" and "conveys the impression of" provisions are substantially overbroad. They punish material that does not qualify as obscenity or child pornography. In fact, the provisions can be read to prohibit modern Hollywood movies and other more mainstream expression. | | Majority Opinion: | Justice Kennedy (joined by Justices Stevens, Ginsburg, Breyer and Souter) | | Concurring Opinion: | Justice Thomas | | Concur/Dissent: | Justice O'Connor (Justices Scalia and Rehnquist concurred with part of O'Connor's analysis) | | Dissent: | Rehnquist (joined by Scalia) | | Quotable: | "There are many things innocent in themselves, however, such as cartoons, video games, and candy, that might be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused." (Kennedy) "The mere tendency of speech to encourage unlawful acts is not a sufficient basis for banning it." (Kennedy) "First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought." (Kennedy) "The First Amendment, however, does not protect the panderer." (Rehnquist) | | Links: | Supreme Court opinion Supreme Court strikes down ban on virtual child porn 9th Circuit opinion High court tries to picture disputed virtual-porn law in practice Federal courts split over constitutionality of computer child porn law | |
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