Answer & Explanation:Read Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) and submit case brief.
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1 of 14 DOCUMENTS
JOHN D. ASHCROFT, ATTORNEY GENERAL, ET AL., PETITIONERS v. THE
FREE SPEECH COALITION ET AL.
No. 00-795
SUPREME COURT OF THE UNITED STATES
535 U.S. 234; 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
October 30, 2001, Argued
April 16, 2002, Decided
SUBSEQUENT HISTORY: Costs and fees proceeding at Gonzales v. Free Speech Coalition, 2005 U.S. App. LEXIS
9350 (9th Cir. Cal., May 23, 2005)
PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT.
Free Speech Coalition v. Reno, 198 F.3d 1083, 1999 U.S. App. LEXIS 32704 (9th Cir. Cal., 1999)
DISPOSITION: 198 F.3d 1083, affirmed.
CASE SUMMARY:
PROCEDURAL POSTURE: Respondents, an adult entertainment coalition and others, sued petitioners, the United
States Attorney General and others, alleging that provisions of the Child Pornography Prevention Act of 1996 (CPPA),
18 U.S.C.S. § 2251 et seq., abridged free speech. Upon the grant of a writ of certiorari, petitioners challenged the
judgment of the United States Court of Appeals for the Ninth Circuit which held that the provisions were
unconstitutional.
OVERVIEW: Respondents contended that the CPPA’s ban on sexually explicit images that appeared to depict minors,
but were not produced using minors, unconstitutionally proscribed protected speech. Petitioners argued that the
prohibition of virtual child pornography was necessary to discourage the criminal conduct of pedophiles and to preclude
a defense of virtual imaging in prosecuting actual child pornographers. The United States Supreme Court held that the
ban on virtual child pornography was unconstitutionally overbroad since it proscribed speech which was neither child
pornography nor obscene and thus abridged the freedom to engage in a substantial amount of lawful speech. The visual
depiction of teenage sexual activity was a common theme in acclaimed artistic works and a fact of modern society, and
the CPPA unlawfully prohibited speech which recorded no crime and created no victims. Further, the unquantified
potential for criminal conduct by pedophiles had merely a contingent and indirect causal connection to child abuse.
Also, the government was not permitted to bar protected virtual child pornography as a means to enforce its proper ban
of actual child pornography.
Page 2
535 U.S. 234, *; 122 S. Ct. 1389, **;
152 L. Ed. 2d 403, ***; 2002 U.S. LEXIS 2789
OUTCOME: The judgment, finding that the ban on virtual child pornography was unconstitutional, was affirmed.
CORE TERMS: child pornography, sexually, pornography, depiction, sexual, ban, adult, virtual, impression, obscene,
film, engaging, visual, convey, movies, picture, overbroad, affirmative defense, pornographic, virtual-child,
youthful-adult, indistinguishable, exploitation, scene, computer-generated, unprotected, obscenity, promoted, sexual
activity, literary
LexisNexis(R) Headnotes
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Obscenity
Criminal Law & Procedure > Criminal Offenses > Sex Crimes > Child Pornography > Elements
[HN1] The Child Pornography Prevention Act of 1996, 18 U.S.C.S. § 2251 et seq., 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.
Criminal Law & Procedure > Criminal Offenses > Sex Crimes > Child Pornography > Elements
[HN2] As a general rule, pornography can be banned only if obscene, but pornography showing minors can be
proscribed whether or not the images are obscene.
Criminal Law & Procedure > Criminal Offenses > Sex Crimes > Child Pornography > Elements
[HN3] 18 U.S.C.S. § 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. 18 U.S.C.S. § 2256(2).
Criminal Law & Procedure > Criminal Offenses > Sex Crimes > Child Pornography > Elements
[HN4] 18 U.S.C.S. § 2256(8)(D) defines child pornography to include 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.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom
[HN5] See U.S. Const. amend. I.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom
[HN6] A law imposing criminal penalties on protected speech is a stark example of speech suppression.
Criminal Law & Procedure > Criminal Offenses > Sex Crimes > Child Pornography > Penalties
Criminal Law & Procedure > Juvenile Offenders > Confinement Practices
Criminal Law & Procedure > Sentencing > Criminal History > Three Strikes
[HN7] The penalties under the Child Pornography Prevention Act of 1996, 18 U.S.C.S. § 2251 et seq., are indeed
severe. A first offender may be imprisoned for 15 years. 18 U.S.C.S. § 2252A(b)(1). A repeat offender faces a prison
sentence of not less than 5 years and not more than 30 years in prison.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom
Constitutional Law > Bill of Rights > Fundamental Freedoms > Judicial & Legislative Restraints > Overbreadth &
Vagueness
Governments > Legislation > Overbreadth
Page 3
535 U.S. 234, *; 122 S. Ct. 1389, **;
152 L. Ed. 2d 403, ***; 2002 U.S. LEXIS 2789
[HN8] The United States Constitution gives significant protection from overbroad laws that chill speech within the First
Amendment’s vast and privileged sphere.
Constitutional Law > Congressional Duties & Powers > General Overview
Family Law > Family Protection & Welfare > Children > Abuse, Endangerment & Neglect
[HN9] Congress may pass valid laws to protect children from abuse.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom
[HN10] The prospect of crime by itself does not justify laws suppressing protected speech.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom
[HN11] Speech may not be prohibited because it concerns subjects offending the public’s sensibilities.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Defamation > General
Overview
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Obscenity
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom
[HN12] As a general principle, the First Amendment bars the government from dictating what the public sees or reads
or speaks or hears. 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.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Obscenity
Criminal Law & Procedure > Criminal Offenses > Sex Crimes > Child Pornography > General Overview
[HN13] Under the existing federal prohibition on obscenity, the government must prove that a 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.
Civil Procedure > Jurisdiction > Personal Jurisdiction & In Rem Actions > In Personam Actions > General
Overview
Criminal Law & Procedure > Criminal Offenses > Sex Crimes > Child Pornography > General Overview
Family Law > Parental Duties & Rights > Consent > Marriage
[HN14] Under the Child Pornography Prevention Act of 1996, 18 U.S.C.S. § 2251 et seq., images are prohibited so long
as the persons appear to be under 18 years of age. 18 U.S.C.S. § 2256(1).
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Obscenity
[HN15] The artistic merit of a work does not depend on the presence of a single explicit scene. 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.
Criminal Law & Procedure > Criminal Offenses > Sex Crimes > Child Pornography > Elements
[HN16] Where images are themselves the product of child sexual abuse, the state has an interest in stamping it out
without regard to any judgment about its content.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom
[HN17] The government may punish adults who provide unsuitable materials to children, and it may enforce criminal
penalties for unlawful solicitation. However, speech within the rights of adults to hear may not be silenced completely
in an attempt to shield children from it.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Obscenity
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom
[HN18] The state cannot reduce the adult population to reading only what is fit for children.
Page 4
535 U.S. 234, *; 122 S. Ct. 1389, **;
152 L. Ed. 2d 403, ***; 2002 U.S. LEXIS 2789
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom
Constitutional Law > Bill of Rights > Fundamental Freedoms > Judicial & Legislative Restraints > Overbreadth &
Vagueness
[HN19] The government cannot ban speech fit for adults simply because it may fall into the hands of children.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Obscenity
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom
[HN20] The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. The
government cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.
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.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom
[HN21] The government may not prohibit speech because it increases the chance an unlawful act will be committed at
some indefinite future time. The government may suppress speech for advocating the use of force or a violation of law
only if such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such
action.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom
[HN22] 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.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Judicial & Legislative Restraints > Overbreadth &
Vagueness
[HN23] The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the
possibility that protected speech of others may be muted.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Judicial & Legislative Restraints > Overbreadth &
Vagueness
Governments > Legislation > Overbreadth
[HN24] The overbreadth doctrine prohibits the government from banning unprotected speech if a substantial amount of
protected speech is prohibited or chilled in the process.
Criminal Law & Procedure > Criminal Offenses > Sex Crimes > Child Pornography > General Overview
Criminal Law & Procedure > Trials > Burdens of Proof > Prosecution
Criminal Law & Procedure > Defenses > General Overview
[HN25] An affirmative defense under the Child Pornography Prevention Act of 1996, 18 U.S.C.S. § 2251 et seq.,
allows 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.
18 U.S.C.S. § 2252A(c).
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Obscenity
Criminal Law & Procedure > Criminal Offenses > Sex Crimes > Child Pornography > Elements
[HN26] Pandering may be relevant, as an evidentiary matter, to the question whether particular materials are obscene.
Where a defendant engages in the commercial exploitation of erotica solely for the sake of their prurient appeal, the
context he or she creates may itself be relevant to the evaluation of the materials.
DECISION: First Amendment held violated by provisions of Child Pornography Prevention Act of 1996 that banned
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535 U.S. 234, *; 122 S. Ct. 1389, **;
152 L. Ed. 2d 403, ***; 2002 U.S. LEXIS 2789
(1) “virtual child pornography” produced without real children, and (2) images presented as child pornography.
SUMMARY: A provision of the Child Pornography Prevention Act of 1996 (CPPA) (18 USCS 2252A(a)) prohibited
the possession or distribution of “child pornography,” which was defined in another CPPA provision (18 USCS
2256(8)(B)) as including any visual depiction that “is, or appears to be, of a minor engaging in sexually explicit
conduct.” Thus, 2256(8)(B) banned a range of sexually explicit images, sometimes called “virtual child pornography,”
that appeared to depict minors but were produced by means other than using real children, as, for example,
computer-generated images and images of adults who looked like minors. An additional CPPA provision (18 USCS
2256(8)(D)) expanded the child pornography definition to include a visual depiction that “is advertised, promoted,
presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual
depiction of a minor engaging in sexually explicit conduct.” Yet another CPPA provision (18 USCS 2252A(c))
provided an affirmative defense which allowed a defendant to avoid conviction for some CPPA offenses, by showing
that the materials were produced using only adults and were not otherwise distributed in a manner conveying the
impression that the materials depicted real children.
Various plaintiffs–including a trade association for the adult-entertainment industry, the publisher of a book advocating
the nudist lifestyle, a painter of nudes, and a photographer specializing in erotic images–brought a suit for declaratory
and injunctive relief in the United States District Court for the Northern District of California against the United States
Attorney General and the United States Department of Justice. The plaintiffs alleged, among other matters, that (1)
2256(8)(B) and 2256(8)(D) chilled the plaintiffs from producing works protected by the Federal Constitution’s First
Amendment, and (2) these provisions were thus overbroad and violative of the First Amendment. The District Court,
determining that the provisions were constitutional, granted the government’s motion for summary judgment (1997 US
Dist LEXIS 12212). The United States Court of Appeals for the Ninth Circuit, in reversing in pertinent part and in
ordering a remand, concluded that the provisions’ infringement of protected speech was insufficiently related to the
interest in prohibiting pornography that actually involved minors (198 F3d 1083).
On certiorari, the United States Supreme Court affirmed. In an opinion by Kennedy, J., joined by Stevens, Souter,
Ginsburg, and Breyer, JJ., it was held that:
(1) 2256(8)(B) was overbroad and violative of the First Amendment, because, among other reasons, (a) virtual child
pornography, unlike real child pornography, was not intrinsically related to the sexual abuse of children, as the causal
link between such virtual images and actual instances of child abuse was contingent and indirect; (b) some works in the
category of child pornography might possibly have significant literary or artistic value; (c) the ban on virtual child
pornography was not justified on various asserted grounds, such as the possibility that pedophiles might use such
pornography to seduce children or that such pornography might whet the appetites of pedophiles and encourage them to
engage in illegal conduct; and (d) the affirmative defense in 2252A(c) was not sufficient to save 2256(8)(B).
(2) 2256(8)(D), too, was overbroad and violative of the First Amendment, because, among other reasons, (a) under
2256(8)(D), the determination whether speech was to be treated as child pornography turned on how the speech was
presented, not on what was depicted; and (b) 2256(8)(D) prohibited not only pandering, but also possession of material
described or pandered as child pornography by someone earlier in the distribution chain, even if persons who received
such material bore no responsibility for how the material was marketed, sold, or described.
Thomas, J., concurring in the judgment, expressed the view that if technology were to evolve to the point where it
became impossible to enforce actual child pornography laws because the government could not prove that certain
pornographic images were of real children, then the government might be able to enact a regulation of virtual child
pornography that contained an appropriate affirmative defense or some other narrowly drawn restriction.
O’Connor, J., joined in part (as to point 2(a) below) by Rehnquist, Ch. J., and Scalia, J., concurring in the judgment in
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535 U.S. 234, *; 122 S. Ct. 1389, **;
152 L. Ed. 2d 403, ***; 2002 U.S. LEXIS 2789
part and dissenting in part, expressed the view that (1) 2256(8)(D)’s ban on material that “conveys the impression” that
it contains actual-child pornography was properly struck down; and (2) 2256(8)(B)’s ban on pornographic depictions
that “appear to be” of minors ought to have been (a) upheld only as applied to “virtual-child pornography,” that is,
images of children created wholly on a computer without using any actual children, but (b) struck down as applied to
“youthful-adult” pornography, that is, material using adults who looked like children.
Rehnquist, Ch. J., joined in pertinent part by Scalia, J., dissenting, expressed the view that the CPPA ought to have been
(1) construed in a manner consistent with the First Amendment, that is, as prohibiting only materials actually containing
(a) visual depictions of real minors engaged in sexually explicit conduct, or (b) computer-generated images virtually
indistinguishable from real minors engaged in sexually explicit conduct; and (2) upheld in its entirety.
LAWYERS’ EDITION HEADNOTES:
[***LEdHN1]
CONSTITUTIONAL LAW §961
— free speech — virtual child pornography
Headnote:[1A][1B][1C][1D][1E][1F][1G][1H]
A provision of the Child Pornography Prevention Act of 1996 (CPPA) (18 USCS 2256(8)(B)), which prohibits any
visual depiction that appears to be of a minor engaging in se …
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