Ashcroft, Atty. Gen., et al. v. Free Speech Coalition (04/16/2002)

Questions presented: Is the 1st Amendment violated by the Child Pornography Prevention Acts prohibition of any visual depiction that "appears to be" or "conveys the impression" of a minor engaging in sexually explicit conduct?

BY ALISSA HAVENS, MEDILL NEWS SERVICE

In the last thirty years, Congress has passed legislation aimed to combat child pornography because of its negative physical, mental and emotional effects on children involved.

In 1996, Congress passed the most recent law, the Child Pornography Prevention Act (CPPA), shifting the focus from the protection of actual children involved in child pornography, to the protection of all children who could be potentially harmed by the images.

The CPPA extended the definition of child pornography to include "morphed" or computer generated images, and material advertised as child pornography. The new act thus incriminated producers of images that did not include the use of actual children.

Congress argued that whether or not actual children were involved, child pornography increases the activities of child molesters and pedophiles. But Congress acknowledged the potential for opposition to the CPPA and included a provision that allowed for the elimination of individual provisions without destruction of the entire act.

In July 1997, the Free Speech Coalition, a trade association of businesses involved in the production and distribution of adult entertainment, filed suit in Northern California District Court, arguing that sections of the new law were unconstitutionally vague.

Judge Samuel Conti rejected the Free Speech Coalition claims, upholding the constitutionality of the CPPA as written. "Even if no children are involved in the production of sexually explicit materials, the devastating ... effect that such materials have on society and the well-being of children merits the regulation of such images," Conti said.

But 1st Amendment supporters disagreed with Conti's decision. "Over and over again, the [Supreme] Court has ruled that banning speech because of its potential secondary affect on listeners is an unconstitutional restraint on content," said Ann Brick, an attorney with the Northern California American Civil Liberties Union.

In December 1999, a divided 9th Circuit Court of Appeals overturned the lower courts decision, holding that portions of the CPPA were unconstitutionally vague and unconstitutionally overbroad in trying to control evil ideas. The court reasoned that the act suppresses material that is in the 1st Amendment: visual depictions of adults and computer-generated non-persons that "appear to be" minors and promotional materials that "convey the impression" that they are minors.

"Congress cannot regulate virtual child pornography because it does not require the use of actual children," the majority held.

Judge Warren J. Ferguson dissented, citing the lack of social value of child pornography. "Congress interests in destroying the child pornography market and in preventing the seduction of minors outweigh virtual child pornographys exceedingly modest value." The dissent also argued the CPPA is an "important tool in the fight against child abuse."

A petition for an en banc hearing by the 9th Circuit was denied.

While the 1st, 4th and 11th circuit courts ruled differently on the issue of virtual child pornography, the separate rulings in U.S. v. Hilton, U.S. v. Mento and U.S. v. Acheson involved the use of actual children. In those cases, the virtual images were not altered pictures of actual children. Rather, children had participated in sexually explicit activities and those images were subsequently advertised.

The U.S. Supreme Court granted certiorari on Jan. 22, 2001.

The difference between virtual child pornography and the use of actual children is critical, according to Louis Sirkin, attorney for the Free Speech Coalition.

"If I shoot at a video game, then it is not real murder. No one died," argues Sirkin. "Essentially this [CPPA] means you are committing a crime through imagination."

Since the passage of the CPPA in 1996, "a number of persons have ceased the production, distribution and possession of certain forms of expression, which do not involve minors, in fear of being prosecuted under the act," says Sirkin.

While the Free Speech Coalition and its clients oppose child porn, Sirkin adds, "they are nonetheless threatened and injured by the CPPA because they or their members produce, distribute, and/or possess materials that could easily, although wrongly, be deemed to contain sexually-explicit depictions of minors."