Ashcroft v. Free Speech Coalition

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Ashcroft v. Free Speech Coalition
Seal of the United States Supreme Court.svg
Supreme Court of the United States
Argued October 30, 2001
Decided April 16, 2002
Full case nameJohn David Ashcroft, Attorney General, et al., Petitioners v. The Free Speech Coalition, et al.
Docket no. 00-795
Citations535 U.S. 234 ( more )
122 S. Ct. 1389; 152 L. Ed. 2d 403; 2002 U.S. LEXIS 2789; 70 U.S.L.W. 4237; 30 Media L. Rep. 1673; 2002 Cal. Daily Op. Service 3211; 2002 Daily Journal DAR 4033; 15 Fla. L. Weekly Fed. S 187
Argument Oral argument
Case history
PriorFree Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999); rehearing denied, 220 F.3d 1113 (9th Cir. 2000); cert. granted, 531 U.S. 1124(2001).
Holding
The prohibitions of §§ 2256(8)(B) and 2256(8)(D) are unconstitutional because they abridged "the freedom to engage in a substantial amount of lawful speech". United States Court of Appeals for the Ninth Circuit affirmed.
Court membership
Chief Justice
William Rehnquist
Associate Justices
John P. Stevens  · Sandra Day O'Connor
Antonin Scalia  · Anthony Kennedy
David Souter  · Clarence Thomas
Ruth Bader Ginsburg  · Stephen Breyer
Case opinions
MajorityKennedy, joined by Stevens, Souter, Ginsburg, Breyer
ConcurrenceThomas (in judgment)
Concur/dissentO'Connor, joined by Rehnquist, Scalia (Part II)
DissentRehnquist, joined by Scalia (except for paragraph discussing legislative history)
Laws applied
U.S. Const. amend. I; Child Pornography Prevention Act of 1996
Superseded by
Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act 2003 in part, c.f. 18 U.S.C. § 1466A [1]

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), is a U.S. Supreme Court case that struck down two overbroad provisions of the Child Pornography Prevention Act of 1996 because they abridged "the freedom to engage in a substantial amount of lawful speech". [2] The case was brought against the U.S. government by the Free Speech Coalition, a "California trade association for the adult-entertainment industry", along with Bold Type, Inc., a "publisher of a book advocating the nudist lifestyle"; Jim Gingerich, who paints nudes; and Ron Raffaelli, a photographer who specialized in erotic images. By striking down these two provisions, the Court rejected an invitation to increase the amount of speech that would be categorically outside the protection of the First Amendment.

Contents

Background of the case

Prior case law had established two relevant categories of speech that were outside the protection of the First Amendment. In Miller v. California , 413 U.S. 15(1973), [3] the Court had held that the First Amendment allowed the government to restrict obscenity. And in New York v. Ferber , 458 U.S. 747(1982), [4] the Court held that the government could ban the distribution of child pornography to protect children from the harm inherent in making it. The Court extended Ferber to allow the criminalization of the possession of child pornography in Osborne v. Ohio , 495 U.S. 103(1990). [5]

The statute at issue

Before 1996, Congress defined child pornography with reference to the Ferber standard. In passing the Child Pornography Prevention Act of 1996, Congress added the two categories of speech challenged in this case to its definition of child pornography. The first prohibited "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 Court observed that this provision "captures a range of depictions, sometimes called 'virtual child pornography', which include computer-generated images, as well as images produced by more traditional means". The second prohibited "any sexually explicit image that was advertised, promoted, presented, described, or distributed in such a manner that conveys the impression it depicts a minor engaging in sexually explicit conduct".

The lawsuit

The Free Speech Coalition, fearing that Congress's expanded definition of child pornography would endanger their immoral activities, filed a lawsuit seeking to enjoin enforcement of the CPPA in the United States District Court for the Northern District of California. They alleged that the first provision, prohibiting images that "appear to be" children engaged in sexual activity, and the second, prohibiting speech that "conveys the impression" that the images depict minors engaged in sexual activity, were overbroad, vague, and had a chilling effect on their legitimate work. The district court disagreed, adding that the overbreadth claim was specious as it was "highly unlikely" that any "adaptations of sexual works like Romeo and Juliet ... will be treated as 'criminal contraband'".

The Ninth Circuit reversed, reasoning that the government could not prohibit speech merely because of its tendency to persuade its viewers to engage in illegal activity. [6] It ruled that the CPPA was substantially overbroad because it prohibited material that was neither obscene nor produced by exploiting real children, as Ferber prohibited. [6] The court declined to reconsider the case en banc. [7] The government asked the Supreme Court to review the case, and it agreed, noting that the Ninth Circuit's decision conflicted with the decisions of four other circuit courts of appeals. Ultimately, the Supreme Court agreed with the Ninth Circuit.

Opinion

The First Amendment provides that "Congress shall make no law... abridging the freedom of speech". The Court opined that imposing a criminal sanction on protected speech is a "stark example of speech suppression", but at the same time, that sexual abuse of children "is a most serious crime and an act repugnant to the moral instincts of a decent people." "Congress may pass valid laws to protect children from abuse, and it has." The great difficulty with the two provisions of the CPPA at issue in this case was that they included categories of speech other than obscenity and child pornography, and thus were overbroad.

The Court concluded that the "CPPA prohibits speech despite its serious literary, artistic, political, or scientific value." In particular, it prohibits the visual depiction of teenagers engaged in sexual activity, a "fact of modern society and has been a theme in art and literature throughout the ages." Such depictions include performances of Romeo and Juliet , by William Shakespeare; the 1996 film William Shakespeare's Romeo + Juliet , directed by Baz Luhrmann; and the Academy Award winning movies Traffic and American Beauty . "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."

Thus, the CPPA prohibited speech for a different reason than anti-child pornography laws. Laws prohibiting the distribution and possession of child pornography ban speech because of the manner in which it is produced, regardless of its serious literary or artistic value. But speech prohibited by the CPPA "records no crime and creates no victims by its production." Ferber did not hold that child pornography is "by definition without value", but that it is illegal because of the harm that making and distributing it necessarily inflicts upon children. Ferber expressly allowed virtual child pornography as an alternative that could preserve whatever value child pornography might have while at the same time mitigating the harm caused by making it. The CPPA would eliminate this distinction and punish people for engaging in what had heretofore been a legal alternative.

The Government countered that without the CPPA, child molesters might use virtual child pornography to seduce children. But "there are many things innocent in themselves, however, such as toys, movies, games, video games, candy, money etc. that might be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused." The First Amendment draws a distinction between words and deeds, and does not tolerate banning of mere words simply because those words could lead to bad deeds. Although the CPPA's objective was to prohibit illegal conduct, it went well beyond that goal by restricting speech available to law-abiding adults. If the goal was to eliminate the market for all child pornography, the Court ruled that the government could not accomplish that goal by eliminating lawful speech in the process. The burden should not, however, fall on the speaker to prove that his speech is lawful, instead of on the government to prove that it is not. Furthermore, such an affirmative defense is "incomplete on its own terms" because it "allows persons to be convicted in some instances where they can prove children were not exploited in the production."

As for the provision that forbade advertising speech so as to convey the impression it depicted minors engaged in sexual conduct, the Court found this provision to be even more sweeping. "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 the scenes would be found in the movie." Although pandering may be a relevant question in an obscenity prosecution, the "conveys the impression" prohibition forbade speech advertising depictions that were entirely lawful. "The First Amendment requires a more precise restriction" than the one drawn by CPPA.

Dissenting opinion

Chief Justice Rehnquist put forth a dissenting opinion, which began with a concern that rapidly advancing technology would soon make it very difficult, if not impossible, to distinguish between pornography made with actual children and pornography made with simulated images of children. "Congress has a compelling interest in ensuring the ability to enforce prohibitions of actual child pornography, and we should defer to its findings that rapidly advancing technology soon will make it all but impossible to do so." Rehnquist's dissenting opinion agreed that serious First Amendment concerns would arise if the government actually prosecuted, say, the producers of Traffic or American Beauty under CPPA. But it had not done so, and Rehnquist believed that the statute did not need to be construed to allow the government to do so. Rehnquist observed that the CPPA banned only depictions of minors engaged in actual sexual activity, not mere suggestions of sexual activity. CPPA simply outlawed "computer-generated images virtually indistinguishable from real children in sexually explicit conduct". None of the films the majority mentioned depicted children engaged in actual sexual activity. As for the "conveys the impression" provision, Rehnquist categorized this provision as merely an anti-pandering provision. Because one could, by definition, only pander obscenity, and that which the panderer knew to be obscenity in any event, that provision also did not violate the First Amendment.

Attempts to supersede (and superseding by PROTECT Act)

Almost immediately after its decision in April 2002, and until April 2003, Congress made several attempts to supersede the Supreme Court's decision, [8] including announcements by then-Attorney General John Ashcroft that he was drafting new legislation in tandem with Congress to improve prohibitions on computer-generated child pornography. Ernest Allen, the president and CEO of the National Center for Missing and Exploited Children stated in response to the decision that "[its] decision will result in the proliferation of child pornography in America unlike anything we have seen in more than 20 years", as part of the advocacy for new legislation. [9]

Between April 2002 and April 2003, Congress attempted to override the Supreme Court's decisions using numerous bills, including the Child Obscenity and Pornography Prevention Act of 2002 [10] (introduced on April 30, 2002, and which passed the House in October 2002 but did not pass the Senate [11] ) and the Child Obscenity and Pornography Prevention Act of 2003 [12] (which was eventually incorporated into the PROTECT Act of 2003). On April 30, 2003, President George W. Bush signed the PROTECT Act of 2003 into law, which partially superseded the Court's decision.[ dubious – discuss ]

See also

Related Research Articles

Miller v. California, 413 U.S. 15 (1973), was a landmark decision of the U.S. Supreme Court clarifying the legal definition of obscenity as material that lacks "serious literary, artistic, political, or scientific value". The ruling was the origin of the three-part judicial test for determining obscene media content that can be banned by government authorities, which is now known as the Miller test.

<span class="mw-page-title-main">PROTECT Act of 2003</span> United States law regarding child abuse and violent crimes against children

The PROTECT Act of 2003 is a United States law with the stated intent of preventing child abuse as well as investigating and prosecuting violent crimes against children. "PROTECT" is a backronym which stands for "Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today".

Stanley v. Georgia, 394 U.S. 557 (1969), was a U.S. Supreme Court decision that helped to establish an implied "right to privacy" in U.S. law in the form of mere possession of obscene materials.

Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002), followed by 542 U.S. 656 (2004), was a decision of the United States Supreme Court, ruling that the Child Online Protection Act (COPA) was unconstitutional as a violation of the First Amendment's guarantee of freedom of speech.

New York v. Ferber, 458 U.S. 747 (1982), was a landmark decision of the U.S Supreme Court, unanimously ruling that the First Amendment to the United States Constitution did not forbid states from banning the sale of material depicting children engaged in sexual activity, even if the material was not obscene.

Osborne v. Ohio, 495 U.S. 103 (1990), is a U.S. Supreme Court case in which the Court held that the First Amendment to the United States Constitution allows states to outlaw the possession, as distinct from the distribution, of child pornography. In doing so, the Court extended the holding of New York v. Ferber, which had upheld laws banning the distribution of child pornography against a similar First Amendment challenge, and distinguished Stanley v. Georgia, which had struck down a Georgia law forbidding the possession of pornography by adults in their own homes. The Court also determined that the Ohio law at issue was not overbroad, relying on a narrowing interpretation of the law the Ohio Supreme Court had adopted in prior proceedings in the case; however, because it was unclear whether the state had proved all the elements of the crime, the Court ordered a new trial.

Child erotica is non-pornographic material relating to children that is used by any individuals for sexual purposes. It is a broader term than child pornography, incorporating material that may cause sexual arousal such as nonsexual images, books or magazines on children or pedophilia, toys, diaries, or clothes. Law enforcement investigators have found that child erotica is often collected by pedophiles and child sexual abuse offenders. It may be collected as a form of compulsive behavior and as a substitute for illegal underage pornography and is often a form of evidence for criminal behavior.

The Child Pornography Prevention Act of 1996 (CPPA) was a United States federal law to restrict child pornography on the internet, including virtual child pornography.

<i>United States v. Williams</i> (2008) 2008 United States Supreme Court case

United States v. Williams, 553 U.S. 285 (2008), was a decision by the Supreme Court of the United States that a federal statute prohibiting the "pandering" of child pornography did not violate the First Amendment to the United States Constitution, even if a person charged under the code did in fact not possess child pornography with which to trade.

Legal frameworks around fictional pornography depicting minors vary depending on country and nature of the material involved. Laws against production, distribution and consumption of child pornography generally separate images into three categories: real, pseudo, and virtual. Pseudo-photographic child pornography is produced by digitally manipulating non-sexual images of real minors to make pornographic material. Virtual child pornography depicts purely fictional characters. "Fictional pornography depicting minors", as covered in this article, includes these latter two categories, whose legalities vary by jurisdiction, and often differ with each other and with the legality of real child pornography.

An obscenity is any utterance or act that strongly offends the prevalent morality and social politics of the time. It is derived from the Latin obscēnus, obscaenus, "boding ill; disgusting; indecent", of uncertain etymology. Such loaded language can be used to indicate strong moral repugnance and outrage, vile, vigilance in conservation, or revenge. In expressions such as "obscene profits" and "the obscenity of war," ; misdirection. As a legal term, it usually refers to graphic depictions of people engaged in sexual and excretory activity, and related utterances of profanity, or the exploited child, human being or situation on display.

United States v. Stevens, 559 U.S. 460 (2010), was a decision by the Supreme Court of the United States, which ruled that 18 U.S.C. § 48, a federal statute criminalizing the commercial production, sale, or possession of depictions of cruelty to animals, was an unconstitutional abridgment of the First Amendment right to freedom of speech.

In the United States, child pornography is illegal under federal law and in all states and is punishable by up to life imprisonment and fines of up to $250,000. U.S. laws regarding child pornography are virtually always enforced and amongst the harshest in the world. The Supreme Court of the United States has found child pornography to be outside the protections of the First Amendment to the United States Constitution. Federal sentencing guidelines on child pornography differentiate between production, distribution, and purchasing/receiving, and also include variations in severity based on the age of the child involved in the materials, with significant increases in penalties when the offense involves a prepubescent child or a child under the age of 18. U.S. law distinguishes between pornographic images of an actual minor, realistic images that are not of an actual minor, and non-realistic images such as drawings. The latter two categories are legally protected unless found to be obscene, whereas the first does not require a finding of obscenity.

Simulated child pornography is child pornography depicting what appear to be minors but which is produced without their direct involvement.

<i>Nitke v. Gonzales</i> American legal case

Nitke v. Gonzalez, 413 F.Supp.2d 262 was a United States District Court for the Southern District of New York case regarding obscene materials published online. The plaintiff challenged the constitutionality of the obscenity provision of the Communications Decency Act (CDA). She claimed that it was overbroad when applied in the context of the Internet because certain contents deemed lawful in some communities and unlawful in others will be restricted due to the open access of the Internet. The plaintiff also sought a permanent injunction against the enforcement of the obscenity provision of the CDA. The court concluded that insufficient evidence was presented to show there was substantial variation in community standards, as applied in the "Miller test", and to show how much protected speech would actually be impaired because of these differences. The relief sought was denied, and the court ruled for the defendant. The Supreme Court subsequently affirmed this ruling without comment.

The Dost test is a six-factor guideline established in 1986 in the United States district court case United States v. Dost, 636 F. Supp. 828. The case involved 22 nude or semi-nude photographs of females aged 10–14 years old. The undeveloped film containing the images was mailed to a photo processing company in Hollywood, Los Angeles, California.

United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973), was an in rem case decided by the United States Supreme Court that considered the question of whether the First Amendment required that citizens be allowed to import obscene material for their personal and private use at home, which was already held to be protected several years earlier. By a 5–4 margin, the Court held that it did not.

United States obscenity law deals with the regulation or suppression of what is considered obscenity and therefore not protected speech under the First Amendment to the United States Constitution. In the United States, discussion of obscenity typically relates to defining what pornography is obscene, as well as to issues of freedom of speech and of the press, otherwise protected by the First Amendment to the Constitution of the United States. Issues of obscenity arise at federal and state levels. State laws operate only within the jurisdiction of each state, and there are differences among such laws. Federal statutes ban obscenity and child pornography produced with real children. Federal law also bans broadcasting of "indecent" material during specified hours.

The Child Protection Restoration and Penalties Enhancement Act of 1990 , Title III of the Crime Control Act of 1990, Pub. L.Tooltip Public Law  101–647, 104 Stat. 4789, enacted November 29, 1990, S. 3266, is part of a United States Act of Congress which amended 18 U.S.C. § 2257 in respect to record-keeping requirements as set by the Child Protection and Obscenity Enforcement Act of 1988, also establishing prohibitions. The Act also amended 18 U.S.C. § 2243 and 18 U.S.C. § 2252 establishing and increasing penalties for sexual abuse of a minor. Also see Child Protective Services, for global practices and the approach of US.

United States v. Handley, 564 F. Supp. 2d 996 (2008), was a court case in the United States District Court for the Southern District of Iowa involving obscenity charges stemming from the importation of manga featuring pornographic depictions of fictional minors.

References

  1. ↑ "18 U.S. Code § 1466A - Obscene visual representations of the sexual abuse of children". LII / Legal Information Institute. Retrieved October 1, 2023.
  2. ↑ Ashcroft v. Free Speech Coalition, 535 U.S. 234, 256 (2002).
  3. ↑ Miller v. California , 413 U.S. 15 (1973)
  4. ↑ New York v. Ferber , 458 U.S. 747 (1982)
  5. ↑ Osborne v. Ohio , 495 U.S. 103 (1990)
  6. 1 2 Free Speech Coalition v. Reno, 198F.3d1083 (9th Cir.1999).
  7. ↑ Free Speech Coalition v. Reno, 220F.3d1113 (9th Cir.2000).
  8. ↑ Stout, David (April 16, 2002). "Supreme Court Strikes Down Ban on Virtual Child Pornography". The New York Times. Retrieved October 1, 2023.
  9. ↑ "CHILD OBSCENITY AND PORNOGRAPHY PREVENTION ACT OF 2002; Congressional Record Vol. 148, No. 86 (Remarks by James F. Sensenbrenner)". congress.gov. Retrieved October 1, 2023.
  10. ↑ "Child Obscenity and Pornography Prevention Act of 2002". April 30, 2002.
  11. ↑ "H.R. 4623 Referred in Senate" (PDF). June 26, 2002. Retrieved October 1, 2023.
  12. ↑ "H.R.1161 - Child Obscenity and Pornography Prevention Act of 2003". March 11, 2003. Retrieved October 1, 2023.
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