Ashcroft v. Free Speech Coalition
535 U.S. 234 (2002)

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No. 00-795. Argued October 30, 200l-Decided April 16, 2002

The Child Pornography Prevention Act of 1996 (CPPA) expands the federal prohibition on child pornography to include not only pornographic images made using actual children, 18 U. S. C. § 2256(8)(A), but also "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," § 2256(8)(B), and any sexually explicit image that is "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression" it depicts "a minor engaging in sexually explicit conduct," § 2256(8)(D). Thus, § 2256(8)(B) bans a range of sexually explicit images, sometimes called "virtual child pornography," that appear to depict minors but were produced by means other than using real children, such as through the use of youthful-looking adults or computer-imaging technology. Section 2256(8)(D) is aimed at preventing the production or distribution of pornographic material pandered as child pornography. Fearing that the CPPA threatened their activities, respondents, an adult-entertainment trade association and others, filed this suit alleging that the "appears to be" and "conveys the impression" provisions are overbroad and vague, chilling production of works protected by the First Amendment. The District Court disagreed and granted the Government summary judgment, but the Ninth Circuit reversed. Generally, pornography can be banned only if it is obscene under Miller v. California, 413 U. S. 15, but pornography depicting actual children can be proscribed whether or not the images are obscene because of the State's interest in protecting the children exploited by the production process, New York v. Ferber, 458 U. S. 747, 758, and in prosecuting those who promote such sexual exploitation, id., at 761. The Ninth Circuit held the CPPA invalid on its face, finding it to be substantially overbroad because it bans materials that are neither obscene under Miller nor produced by the exploitation of real children as in Ferber.

Held: The prohibitions of § § 2256(8)(B) and 2256(8)(D) are overbroad and unconstitutional. Pp. 244-258.

(a) Section 2256(8)(B) covers materials beyond the categories recognized in Ferber and Miller, and the reasons the Government offers in


support of limiting the freedom of speech have no justification in this Court's precedents or First Amendment law. Pp. 244-256.

(1) The CPPA is inconsistent with Miller. It extends to images that are not obscene under the Miller standard, which requires the Government to prove that the work in question, 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, 413 U. S., at 24. Materials need not appeal to the prurient interest under the CPPA, which proscribes any depiction of sexually explicit activity, no matter how it is presented. 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 CPPA also prohibits speech having serious redeeming value, proscribing 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 for centuries. A number of acclaimed movies, filmed without any child actors, explore themes within the wide sweep of the statute's prohibitions. If those movies contain a single graphic depiction of sexual activity within the statutory definition, their possessor would be subject to severe punishment without inquiry into the literary value of the work. This is inconsistent with an essential First Amendment rule: A work's artistic merit does not depend on the presence of a single explicit scene. See, e. g., Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Mass., 383 U. S. 413, 419. Under Miller, redeeming value is 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. See Kois v. Wisconsin, 408 U. S. 229, 231 (per curiam). The CPPA cannot be read to prohibit obscenity, because it lacks the required link between its prohibitions and the affront to community standards prohibited by the obscenity definition. Pp. 244-249.

(2) The CPPA finds no support in Ferber. The Court rejects the Government's argument that speech prohibited by the CPPA is virtually indistinguishable from material that may be banned under Ferber. That case upheld a prohibition on the distribution and sale of child pornography, as well as its production, because these acts were "intrinsically related" to the sexual abuse of children in two ways. 458 U. S., at 759. First, as a permanent record of a child's abuse, the continued circulation itself would harm the child who had participated. See id., at 759, and n. 10. Second, because the traffic in child pornography was an economic motive for its production, the State had an interest in closing the distribution network. Id., at 760. Under

Full Text of Opinion

Primary Holding

If speech is neither obscene nor child pornography, it is protected from attempts to categorically suppress child pornography even if it is related to it. Statutes that are overly broad in defining what speech is suppressed are unconstitutional.


Under the Child Pornography Prevention Act of 1996, the federal government banned images of minors who appeared to be engaging in sexual activity even if they were not real children. It thus expanded on the Supreme Court decisions in New York v. Ferber (1982), which prohibited child pornography, and Miller v. California (1973), which prohibited obscene speech. The statute sought to outlaw all speech that was related to the possibility of child pornography, including images of adults who look like children and computer-generated images. It also imposed harsh penalties on individuals who were convicted of creating or possessing these images, including 15 years in prison for a first offense.



  • Anthony M. Kennedy (Author)
  • John Paul Stevens
  • David H. Souter
  • Ruth Bader Ginsburg
  • Stephen G. Breyer

The rulings of Ferber and Miller are limited to the situations in which they arose. A vast range of speech may not be categorically suppressed in order to eliminate a limited range of speech within it. It would be possible to include classic works of Western literature, such as Shakespeare's Romeo and Juliet, within the broadly worded law. The First Amendment would not condone eliminating these cultural landmarks for the sake of preventing child pornography.

The CPPA imposes draconian penalties that would have a substantial chilling effect on speech. Artists are protected when they show children engaging in sexual activity if it is not for pornographic pursues, and Ferber provides that computer-generated images are protected as a substitute for actual children. The boundaries between actual and virtual child pornography remain sufficiently distinct that the latter, lawful form of speech does not need to be suppressed to prevent the circulation of the former, unlawful form of speech.

Concurrence/Dissent In Part

  • Sandra Day O'Connor (Author)

The statute was worded too broadly in covering images that appear to be actual children. It should be revised to cover only depictions that are virtually indistinguishable from actual children. Pornography involving young adults is very different from child pornography. However, a ban on virtual child pornography is appropriate because it helps to shield children from sexual predators.


  • William Hubbs Rehnquist (Author)
  • Antonin Scalia

A ban on virtual images of child pornography should be upheld because it furthers a compelling government interest. There is no basis for the majority's belief that the law's definition would include classic works of literature. Tellingly, the majority also refers to films that were made after the law was imposed, so there seems to have been no chilling effect.


  • Clarence Thomas (Author)

Case Commentary

This decision sought to return the focus in these evaluations to the depiction or speech itself rather than on how it was presented. Under the theory of liability presented by the statute, it would be arguably possible to establish a prosecution based on a misleading impression from promotional materials that a film contained child pornography. Conduct extending so broadly could not be criminalized.

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