SUPREME COURT OF THE UNITED STATES

In the Matter of ASHCROFT, THE ATTORNEY GENERAL, et al,. Petitioner v. FREE SPEECH COALITION et al Respondent.

CERTIORARI TO THE UNITER STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Justices Keagan Buchanan and Jack Guthrie with whom Jim Hanson joins

We consider in this case whether or not the government can restrict images which could be interpreted as child pornography, which involve no real children in their production, and whether or not such images are protected under the first amendment. The Child Pornography Protection Act of 1996 (CPPA) was created in response to technological advances which allow the creation of pornography which do not require the filming the use of actual people, or the use of adults whose images would be altered to be nearly indistinguishable form minors'. While pictures of minors engaged in certain acts appear obscene, the court has recognized that pictures of adults in similar pictures would not be considered obscene. The CPPA, like the law in New York v. Ferber seeks to extend federal control past obscenity while making no attempt to conform to the precedents set in Miller v. California regarding the qualifications for being considered obscene. Thus the CPPA attempts to extend its reach to all media, print, video, and most especially the Internet, even if it can be shown that the works condemned as child pornography can be shown to have redeeming social value. Thus the question at hand in this case is whether or not the CPPA may condemn a large array of works as child pornography which would not be considered obscene under Miller v. California and not be considered pornography under New York v. Ferber.

The Court rejects the government's contention that the CPPA’s restriction of free speech are justified. It is clear that the intention of the CPPA is to broaden the government's definition of child pornography to include such images which before the advent of computer imaging could not exist § 2256(1)(5). The Court is supportive of the government's belief that child pornography is detrimental to society and specifically the children of this country. Unfortunately the manner in which the CPPA attempts to prohibit child pornography places substantial limits on the public's protected rights to free speech and is therefore unconstitutional.

This court finds that the CPPA unduly prohibits the freedoms of speech and expression protected and is therefore unconstitutional. According to First Amendment of the Constitution, “Congress shall make no law…abridging the freedom of speech.” This court has acknowledged and reaffirmed the First Amendment’s freedom of speech, stating: “[t]he protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Roth v. United States, 354 U.S. 484 (1957). It is with this interpretation, and understanding that freedom of speech is essential to the health and success of liberal democracy, that a broad understanding of First Amendment rights has been employed. Therefore, we have been cautious to protect an individual’s right to express him or herself, to protect the individual from censorship or persecution (see Near v. Minnesota, 283 U.S. 697), to facilitate the free flow of ideas in the search for truth (see New York Times Co. v. Sullivan, 376 U.S. 254), to provide a check and maintain the health of self government (see Cantwell v. Connecticut, 310 U.S. 296), and to preserve individuals’ autonomy and self-expression: "The First Amendment serves not only the needs of the polity but also those of the human spirit — a spirit that demands self-expression." Procunier v. Martinez, 416 U.S. 396, 412 (1974). We also acknowledge, that some expression including obscenity and indecency (see Miller v. California, 413 U.S. 15, libel (see New York Times Co. v. Sullivan, 376 U.S. 254), and fighting words (see Chaplinsky v. New Hampshire, 315 U.S. 568) is unprotected by the First Amendment. In addition, the state has a right in certain cases to burden expression through criminal penalties. Keller v. State Bar of California, 496 U.S. 1 (1990). Nonetheless, the restriction and burden of speech must be strictly and rationally reviewed in order to preserve the integrity of the First Amendment.

This court as already affirmed in its rulings that obscenity is not protected by the First Amendment. To determine obscenity, we have said that the court must decide “(a) whether the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes sexual conduct, as outlined in state law, in a patently offensive way; and (c) whether the work as a whole lacks serious literary, artistic, political, or scientific value.” Miller v. California 413 U.S. 15 (1973). Only after speech is determined to be obscene with the Miller standard, can it be restricted.

The text and potential application of the CPPA disregards the need for material to pass the Miller test, and instead restricts speech and expression protected by the First Amendment. The text of the statue reads that any image “that is, or appears to be, of a minor engaging in sexually explicit conduct” may be banned under the CPPA. 18 U.S.C. §2256(8)(B). By including images that “appears to be” of minors, the CPPA disregards the standards set by the Miller test. Without taking into consideration the work or piece as a whole, the CPPA has the potential to deny speech and expression that does not appeal to prurient interests. In addition, without containing protection for serious literary, artistic, political, or scientific value, the CPPA restricts expression protected by the First Amendment. Using the appearance clause the CPPA could be used to prohibit sexually explicit depiction of young looking adults in films or videos, depictions of children in paintings or drawing, and sculptures or anatomically correct dolls. Without a definition of obscenity within the CPPA, the act could be used to proscribe constitutionally protected speech. By expanding the breadth of material censored with the appearance clause, instead of restricting the material censored to that which is obscene, the CPPA is inconsistent with Miller, and therefore, violates the First Amendment.

The Government argues that “[t]he New York v. Ferber decision ruled that pornographic material involving children can be prohibited, even it if is not obscene by the standards set forth in Miller v. California.” (Brief for Petitioners). While we have ruled that child pornography, while it may pass the Miller obscenity test, is not protected by the First Amendment, the decision was based on avoiding the harm actual child pornography inflicts on children. We found that the production of child pornography is intrinsically related to child abuse in two main ways: First, as a “permanent record of abuse”, the distribution of the pornography would cause new injury to the child which each new circulation. Second, this court cited an interest in closing the “distribution network for child pornography” so that the “exploitation of children is to be effectively controlled.” New York v. Ferber, 458, U.S. 747, 758 (1982).

The Ferber ruling relied on the State interest to avoid the harm done to a child in the production of child pornography. As such, it does not apply to the CPPA’s restriction of images that “appears to be, of a minor engaging in sexually explicit conduct”, as that applies to images rather than actual children and hence do not victimize children in the production of the pornography. In such a case, there is not a direct connection between the virtual pornography and the injury or victimization of children, and therefore cannot be considered speech restricted by Ferber. In fact, our decision in Ferber states that when “the distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances [of children], retains First Amendment protection.” The CPPA is inconsistent with the Ferber decision.

Finally, the Government states that “the United States Congress found that there is a connection between child pornography and the sexual abuse of children” because:

“child pornography is often used by pedophiles to arouse and whet their own sexual appetites as well as to arouse the desires of child molesters, pedophiles, and child pornographers who prey on children, thereby increasing the creation and distribution of child pornography and the sexual abuse and exploitation of actual children” (Brief for Petitioners) (internal quotations omitted).

In employing such argument, the Government is essentially making a twofold claim. First, as child pornography whets sexual appetite of pedophiles, it has the potential to incite sexual abuse, and should therefore be prohibited. Second, the distribution of virtual child pornography will lead to the further distribution of child pornography containing actual children, and should therefore be prohibited. This court refuses to accept either of these assertions.

As to the first, this court has continually refused to restrict First Amendment rights to speech and expression because they may incite lawlessness. There exists within the First Amendment “constitutional guarantees of free speech and free press [which] do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 US 444 (1969). There is no definitive evidence proving that virtual child pornography imminently leads to child molestation. As such, the concern to prohibit virtual child pornography as it may lead to increased child abuse does not outweigh the force of the First Amendment. In addition, this court refuses to restrict free expression because virtual child pornography may whet the sexual appetite of potential child abusers. The First Amendment forbids governments from creating laws on the basis of “the desirability of controlling a person’s private thoughts.” Stanley v. Georgia, 394 U.S. 557, 566 (1969). Government censorship is a dangerous principle for the success of democracy, and this court refuses to set precedent where such censorship is deemed appropriate. While the use and production of child pornography has no value to society, this court will not, nor should the legislator, attempt to proscribe such activity without deference to the constitution.

Finally, to prohibit virtual child pornography on the basis that it furthers the distribution of actual child pornography as the Government argues, again violates a core principle of the First Amendment. We have stated that “the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of other may be muted” Broderick v. Okalahoma, 413 U.S. 612. As such, today we reaffirm this essential element of the freedom of speech.

The Petitioners defense of the CPPA in essence asks this court to create a new type of unprotected speech, that of virtual child pornography. As the CPPA is inconsistent with both Miller and Ferber, in order to maintain its constitutionality under the First Amendment, this court would need to place further abridgments on the freedom of speech. However, without evidence of direct harm to children or the potential for imminent lawlessness, this court refuses to set such precedent.

The petitioner's argument that the CPPA takes necessary measures to prevent pedophiles from using child pornography to seduce minors runs contrary to the principal that speech which adults may have a right to be exposed to may not be silenced completely in an attempt to shield children from such speech. Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 130-131, 106 L. Ed. 2d 93, 109 S. Ct. 2829. The Court repeatedly struck down statutes that would restrict the content which could be published due to concerns that it would "incite minors to violent or depraved or immoral acts." Butler v. Michigan, 352 U.S. 380, 381, 1 L. Ed. 2d 412, 77 S. Ct. 524 (1957). This has been upheld in many capacities the least of which was the consensus that the First Amendment would not be protected or respected if the state or the courts were to "reduce the adult population . . . to reading only what is fit for children." Id. At 383.

The government contends that the reason for such regulation of computer generated images is to attempt to prevent pedophiles and potential pedophiles from fostering or whetting their appetite for indecent relations with children. They further contend that it is a state interest to prohibit all images which could “convey the impression of a minor engaging in sexually explicit conduct”. It has been clearly stated by The Court that state "cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts" through “control[ing] public dissemination of ideas inimical to the public morality”. Stanley v. Georgia, 394 U.S. 557, 566, 22 L. Ed. 2d 542, 89 S. Ct. 1243 (1969). While as stated before, discouraging pedophiles from whetting their appetites is commendable, the means of such prohibition are most inappropriate. Freedoms protected by the First Amendment are most in danger when the state tries to regulate the thoughts of its citizens.

III

The CPPA is not narrowly drawn to specifically target only child pornography. Rather it contends that real and computer generated child pornography could be nearly indistinguishable and therefore the government should prohibit both kinds of images. While as was mentioned before, this is a commendable enterprise, the way which the CPPA achieves a broad enough definition to encompass both types of child pornography includes other kinds of speech which is protected under the first amendment.

The use of the phrase "such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct" in § 2256(8)(D) as a definition of child pornography is overbroad and restricts first amendment rights and is therefore unconstitutional. At the heart of this definition is the underlying idea that because it is often difficult to distinguish between sexually explicit images involving minors and sexually explicit images created through computer imaging, the CPPA is entitled to prohibit both. The overbreadth doctrine prohibits the government banning controversial speech if by doing so speech protected under the bill of rights is prohibited or chilled. Broadrick v. Oklahoma, 413 U.S. 601, 612, 37 L. Ed. 2d 830, 93 S. Ct. 2908. Thus the CPPA's definition of child pornography is overbroad because of the extreme subjectivity of “or appears to be” in § 2256(8)(B) of the CPPA.

Under the dictates of the CPPA, a single scene of a movie, book or page of a magazine could be enough to construe the work as child pornography in the minds of a jury by “appear[ing] to be, of a minor engaging in sexually explicit conduct”. This contradicts the first Amendment rule that the overall merit, literary, artistic, scientific, or political, cannot be dependent upon one explicit display, scene or passage. "[T]he social value of the [work] can neither be weighed against nor canceled by its prurient appeal or patent offensiveness" Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Mass., 383 U.S. 413, 419 (1966). In Miller v. California, 413 U.S. 15, we ruled that in assessing a work's societal merit the work in its entirety must be considered. Miller says that for a work to be deemed obscene, the entire work itself must be obscene, not just a small portion of its narrative. Kois v. Wisconsin, 408 U.S. 229, 231 (1972). The CPPA allows a work to be deemed child pornography if there is a scene or image that is objectionable. This is not supported by any precedent this court has established.

The Court also finds that the CPPA is overbroad. In § 2256(8)(D) it defines child pornography as “such visual depiction 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.” Presumably the government assumes that this 'conveys the impression' provision would allow a jury to evaluate the work in question in light of the manner or techniques with which it was promoted with enough liberty to account for unforeseeable promotion techniques. This allows a work to be deemed child pornography solely on basis of the manner in which it was marketed. With this in mind the Court believes that very little scrutiny of the content of the work in question is required to condemn it under § 2256(8)(D). It does not address the content of the work or how it is depicted in its presentation, but only how it is promoted and presented to the public. Thus the CPPA is overbroad because it prohibits works which are marketed as conveying the impression of containing sexually explicit conduct involving minors, while the work itself may not contain any images which would qualify it as child pornography under the CPPA.

The overbreadth of section 2256(8)(D) can also be seen when one considers its ramifications to a consumer of a literary work which is then found to be child pornography under the CPPA. The movie Traffic could be found under the CPPA to be child pornography because its advertisements “convey the impression” that the movie “contains a visual depiction of a minor engaging in sexually explicit conduct”. With that stigma upon the movie, all consumers of the movie, could then be subject to 15 years in prison, the sentence for a first time offender of the CPPA, for obtaining a copy of child pornography. Those persons who purchased a copy of the movie would be punished for the manner in which the movie was “advertised, promoted, presented, described, or distributed” though they had no part in any area of marketing the product. Section 2256(8)(D) does much more than discourage or prohibit pandering of child pornography. It would punish a consumer for possession of a good pandered or described earlier in production as child pornography. Thus a product could be condemned for depictions on its packaging without any regard to the substance of the good itself. The Court finds that limitations of the first amendment deserve a more precise wording.

For the reasons above, the definitions of child pornography in §§2256(8)(B) and 2256(8)(D) are overbroad and unconstitutional. Having found the CPPA inconsistent with both Miller and Ferber, that virtual child pornography shall not be established as a new category of unprotected speech without Stanley or Broderick considerations, and that it is overbroad and vague, the Court rejects the CPPA as a constitutional means of addressing the child pornography issue.

The judgment of the Court of Appeals is affirmed