Excerpts From Court's Opinions in Ruling on the Child Pornography Prevention Act

April 17, 2002

New York Times

WASHINGTON, April 16 - Following are excerpts from opinions
in the Supreme Court's ruling today in Ashcroft v. Free
Speech Coalition, which overturned provisions of the Child
Pornography Prevention Act of 1996:

By Justice Kennedy

We consider in this case whether the
Child Pornography Prevention Act of 1996 abridges the
freedom of speech. The C.P.P.A. 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 look like
minors or by using computer imaging. The new technology,
according to Congress, makes it possible to create
realistic images of children who do not exist.

By prohibiting child pornography that does not depict an
actual child, the statute goes beyond New York v. Ferber
(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. 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
(1973). ... Like the law in Ferber, the C.P.P.A. 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.

The principal question to be resolved then is whether the
C.P.P.A. is constitutional where it proscribes a
significant universe of speech that is neither obscene
under Miller nor child pornography under Ferber.

Before 1996, Congress defined child pornography as the type
of depictions at issue in Ferber, images made using actual
minors. The C.P.P.A. retains that prohibition and adds
three other prohibited categories of speech, of which the
first, 2256(8)(B), and the third, 2256(8)(D), are at issue
in this case. Section 2256(8)(B) prohibits ``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.'' The prohibition on ``any visual
depiction'' does not depend at all on how the image is
produced. The section captures a range of depictions,
sometimes called ``virtual child pornography,'' which
include computer-generated images, as well as images
produced by more traditional means. For instance, the
literal terms of the statute embrace a Renaissance painting
depicting a scene from classical mythology, a ``picture''
that ``appears to be, of a minor engaging in sexually
explicit conduct.'' The statute also prohibits Hollywood
movies, filmed without any child actors, if a jury believes
an actor ``appears to be'' a minor engaging in ``actual or
simulated ... sexual intercourse.''

These images do not involve, let alone harm, any children
in the production process; but Congress decided the
materials threaten children in other, less direct, ways.
Pedophiles might use the materials to encourage children to
participate in sexual activity. Furthermore, pedophiles
might ``whet their own sexual appetites'' with the
pornographic images, ``thereby increasing the creation and
distribution of child pornography and the sexual abuse and
exploitation of actual children.'' Under these rationales,
harm flows from the content of the images, not from the
means of their production. ...

The First Amendment commands, ``Congress shall make no law
... abridging the freedom of speech.'' The government may
violate this mandate in many ways, but a law imposing
criminal penalties on protected speech is a stark example
of speech suppression. The C.P.P.A.'s penalties are indeed
severe. A first offender may be imprisoned for 15 years. A
repeat offender faces a prison sentence of not less than 5
years and not more than 30 years in prison. While even
minor punishments can chill protected speech, this case
provides a textbook example of why we permit facial
challenges to statutes that burden expression. With these
severe penalties in force, few legitimate movie producers
or book publishers, or few other speakers in any capacity,
would risk distributing images in or near the uncertain
reach of this law. The Constitution gives significant
protection from overbroad laws that chill speech within the
First Amendment's vast and privileged sphere. Under this
principle, the C.P.P.A. is unconstitutional on its face if
it prohibits a substantial amount of protected expression.

The sexual abuse of a child is a most serious crime and an
act repugnant to the moral instincts of a decent people. In
its legislative findings, Congress recognized that there
are subcultures of persons who harbor illicit desires for
children and commit criminal acts to gratify the impulses.
Congress also found that surrounding the serious offenders
are those who flirt with these impulses and trade pictures
and written accounts of sexual activity with young

Congress may pass valid laws to protect children from
abuse, and it has. The prospect of crime, however, by
itself does not justify laws suppressing protected speech.
It is also well established that speech may not be
prohibited because it concerns subjects offending our
sensibilities. As a general principle, the First Amendment
bars the government from dictating what we see or read or
speak or hear. The freedom of speech has its limits; it
does not embrace certain categories of speech, including
defamation, incitement, obscenity and pornography produced
with real children. While these categories may be
prohibited without violating the First Amendment, none of
them includes the speech prohibited by the C.P.P.A. In his
dissent from the opinion of the Court of Appeals, Judge
Ferguson recognized this to be the law and proposed that
virtual child pornography should be regarded as an
additional category of unprotected speech.

As we have noted, the C.P.P.A. is much more than a
supplement to the existing federal prohibition on
obscenity. Under Miller v. California (1973), the
government must prove that the work, 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. The C.P.P.A.,
however, extends to images that appear to depict a minor
engaging in sexually explicit activity without regard to
the Miller requirements. The materials need not appeal to
the prurient interest. Any depiction of sexually explicit
activity, no matter how it is presented, is proscribed. The
C.P.P.A. applies to a picture in a psychology manual, as
well as a movie depicting the horrors of sexual abuse. 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 C.P.P.A. prohibits speech despite its serious literary,
artistic, political or scientific value. The statute
proscribes 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
throughout the ages. Under the C.P.P.A., images are
prohibited so long as the persons appear to be under 18
years of age. This is higher than the legal age for
marriage in many states, as well as the age at which
persons may consent to sexual relations. It is, of course,
undeniable that some youths engage in sexual activity
before the legal age, either on their own inclination or
because they are victims of sexual abuse.

Both themes - teenage sexual activity and the sexual abuse
of children - have inspired countless literary works.
William Shakespeare created the most famous pair of teenage
lovers, one of whom is just 13 years of age. In the drama,
Shakespeare portrays the relationship as something splendid
and innocent, but not juvenile. The work has inspired no
less than 40 motion pictures, some of which suggest that
the teenagers consummated their relationship. Shakespeare
may not have written sexually explicit scenes for the
Elizabethan audience, but were modern directors to adopt a
less conventional approach, that fact alone would not
compel the conclusion that the work was obscene.

Our society, like other cultures, has empathy and enduring
fascination with the lives and destinies of the young. Art
and literature express the vital interest we all have in
the formative years we ourselves once knew, when wounds can
be so grievous, disappointment so profound, and mistaken
choices so tragic, but when moral acts and self-fulfillment
are still in reach. Whether or not the films we mention
violate the C.P.P.A., they explore themes within the wide
sweep of the statute's prohibitions. If these films, or
hundreds of others of lesser note that explore those
subjects, contain a single graphic depiction of sexual
activity within the statutory definition, the possessor of
the film would be subject to severe punishment without
inquiry into the work's redeeming value. This is
inconsistent with an essential First Amendment rule: the
artistic merit of a work does not depend on the presence of
a single explicit scene. Under Miller, the First Amendment
requires that redeeming value be 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. For
this reason, and the others we have noted, the C.P.P.A.
cannot be read to prohibit obscenity, because it lacks the
required link between its prohibitions and the affront to
community standards prohibited by the definition of
obscenity. ...

The C.P.P.A., for reasons we have explored, is inconsistent
with Miller and finds no support in Ferber. The government
seeks to justify its prohibitions in other ways. It argues
that the C.P.P.A. is necessary because pedophiles may use
virtual child pornography to seduce children. 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. The government, of
course, may punish adults who provide unsuitable materials
to children and it may enforce criminal penalties for
unlawful solicitation. The precedents establish, however,
that speech within the rights of adults to hear may not be
silenced completely in an attempt to shield children from

The government wants to keep speech from children not to
protect them from its content but to protect them from
those who would commit other crimes. The principle,
however, remains the same: the government cannot ban speech
fit for adults simply because it may fall into the hands of
children. The evil in question depends upon the actor's
unlawful conduct, conduct defined as criminal quite apart
from any link to the speech in question. This establishes
that the speech ban is not narrowly drawn. ...

The government may not suppress lawful speech as the means
to suppress unlawful speech. Protected speech does not
become unprotected merely because it resembles the latter.
The Constitution requires the reverse.

Concurring and Dissenting

This litigation involves a
facial challenge to the C.P.P.A.'s prohibitions of
pornographic images that appear to be ... of a minor'' and
of material that ``conveys the impression'' that it
contains pornographic images of minors. While I agree with
the court's judgment that the First Amendment requires that
the latter prohibition be struck down, I disagree with its
decision to strike down the former prohibition in its
entirety. The ``appears to be ... of a minor'' language in
2256(8)(B) covers two categories of speech: pornographic
images of adults that look like children (``youthful-adult
pornography'') and pornographic images of children created
wholly on a computer, without using any actual children
(``virtual-child pornography''). The court concludes,
correctly, that the C.P.P.A.'s ban on youthful-adult
pornography is overbroad. In my view, however, respondents
fail to present sufficient evidence to demonstrate that the
ban on virtual-child pornography is overbroad. Because
invalidation due to overbreadth is such ``strong
medicine,'' I would strike down the prohibition of
pornography that ``appears to be'' of minors only insofar
as it is applied to the class of youthful-adult


We normally do not strike down a statute on First Amendment
grounds ``when a limiting instruction has been or could be
placed on the challenged statute.'' This case should be
treated no differently.

Other than computer generated images that are virtually
indistinguishable from real children engaged in sexually
explicitly conduct, the CPPA can be limited so as not to
reach any material that was not already unprotected before
the C.P.P.A. ...

The C.P.P.A. can be construed to prohibit only the knowing
possession of materials actually containing visual
depictions of real minors engaged in sexually explicit
conduct, or computer generated images virtually
indistinguishable from real minors engaged in sexually
explicit conduct. The mere possession of materials
containing only suggestive depictions of youthful looking
adult actors need not be so included.

In sum, while potentially impermissible applications of the
C.P.P.A. may exist, I doubt that they would be
``substantial in relation to the statute's plainly
legitimate sweep.''

The aim of ensuring the enforceability of our nation's
child pornography laws is a compelling one. The C.P.P.A. is
targeted to this aim by extending the definition of child
pornography to reach computer-generated images that are
virtually indistinguishable from real children engaged in
sexually explicit conduct. The statute need not be read to
do any more than precisely this, which is not offensive to
the First Amendment.

For these reasons, I would construe the C.P.P.A. in a
manner consistent with the First Amendment, reverse the
Court of Appeals' judgment, and uphold the statute in its