\JOHN ASHCROFT, Defendant - Appellant, v. ACLU, Plaintiff – Respondent

 

UNITED STATES SUPREME COURT

 

COUNSEL:     Ross Richendorfer for Defendant – Appellant.

                        Matthew Schissler for Plaintiff – Respondent

 

JUDGES: Before HANSON, McMURRER, and STILLMAN

 

OPINION BY: STILLMAN, McMURRER, with HANSON

 

OPINION:

 

STILLMAN, Justice with whom McMurrer and Hanson concur.

 

The Child Pornography Prevention Act of 1996 (CPPA) is overly broad, vague, and restricts protected speech, and thus violates the Federal Constitution’s First Amendment.  The ruling of the 9th Circuit Court of the United States is upheld.  

 

I.  BACKGROUND

            The Child Pornography Prevention Act of 1996 (CPPA), enacted by congress as a response to the growth of the internet and the internet pornography business, bans: “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct where –

(A)  the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

(B)  such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct;

(C)  such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or

(D)  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…”18 U.S.C. § 2256(8). 

Arguing that the CPPA was overbroad, the ACLU, plaintiff-respondent, brought suit in 1998 against then attorney general Janet Reno (currently John Ashcroft, defendant-petitioner), and on appeal the 9th Circuit Court of the United States ruled in favor of plaintiff-respondent and struck down the CPPA.

 

  II. THE CPPA IS OVERLY BROAD

            At the core of the rationale for distinguishing child pornography from protected forms of speech is the compelling state interest in protecting the children involved in the production of child pornography.  Child pornography is intrinsically harmful to the children involved because it serves as a record of previous abuses which has the ability to inflict harm on the children involved throughout their lives, and also because the distribution of child pornography creates a market that provides an economic incentive to produce moreinvolve more children in such pornography, New York v. Ferber, 458 U.S. 747, 758, 73 L. Ed. 2d 1113, 102 S. Ct. 3348.  Due to this rationale, child pornography is banned because it contains actual children who are harmed by its production and distribution.  The CPPA, however, extends to works with actors that aren’t children, but appear to be.  It also extends to drawings, paintings, animations, and computer generated images that appear to be of children engaged in sexually explicit conduct.  

These works, which sections B, C, and D of the CPPA would ban, are outside of this traditional realm of child pornography because these works are notdoesn’t serve as a records of abuse.  No actual children are involved in the paintings, sculpture, etc. that the CPPA would ban, and therefore no abuse has occurred.  As such, these works cannot serve as records of abuse.  Furthermore, banning these previously protected works would increase the economic incentive to produce and distribute child pornography involving real children.  If one can expect a penalty for making a sexually explicit sculpture of a child as well as making a sexually explicit film involving real children, potential producershe will have little legal motivation to go the less harmful route.

By banning any visual depiction that “appear to be” of a minor engaging in sexually explicit conduct, the CPPA attempts to expand the borders of speech that is considered child pornography to ludicrously unconstitutional realms, most notably that of artistic speech.  Such films as Kids and Y Tu Mama Tambien, which are artistic in nature, yet contain scenes of what appears to be minors engaging in what appears to sexually explicit conduct, would be banned under the CPPA.  This sort of trampling on artistic expression is unacceptable, given this court’s decision in Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607, which states that in order for a work to qualify as obscene the whole work must be deemed obscene and lacking in serious redeeming qualities, rather than one portion in isolation.  The Miller precedent serves to protect works of art that may include risqué scenes because of the value of protecting artistic expression, which is crucial to a free society.  The CPPA, however, due to its extremely overbroad language, oversteps the bounds set by Miller by banning any work which includes a visual depiction of what appears to be minors engaging in sexually explicit conduct.  This would likely also include textbooks on teenage sexuality, which, though explicit, aren’t obscene and have much redeeming educational value.

            Though counsel for defendant–appellant relies on the assertion that only images which are “virtually indistinguishable” from those of real children are to be banned under the CPPA, the section of the act cited above only contains the phrase “appears to be,” which is certainly a much looser category (Ashcroft v. ACLU, brief for defendant–appellant).  “Virtually indistinguishable” does appear in the congressional testimony regarding the CPPA, but testimony alone is insufficient to influence the interpretation of a statute, as ruled in Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 260.  A pencil sketch could “appear to be” of a minor engaged in sexually explicit activity, and to ban this would unduly hamper the artistic freedom guaranteed by the Constitution’s First Amendment.  A work involving an actor who is of legal age but appears to be a few years younger than she actually is might be “virtually indistinguishable” from a work involving real children, and to ban this would also unduly hamper constitutionally protected artistic freedom.  As such, even the phrase “virtually indistinguishable” would have the affect of banning much work of redeeming value, but “appears to be” is the language of the statute, and is even more restrictive than “virtually indistinguishable.”  Neither phrase would be acceptable in the context of section B of the statute.

 

Justice MCMURRER, continuing with whom Stillman and Hanson concur:

III.  The CPPA is Void-For-Vagueness

In addition to the overbroadness of the Child Pornography Protection Act (CPPA) as affirmed above by Justice STILLMAN, the CPPA is also unacceptably vague.  The question of vagueness might at first seem to be merely another facet of the overbroadness issue, as both rely on the ambiguous wording of the CPPA.  But, the statute is vague in that it allows for a contingent application of the law both at the investigative and judicial level.

The Government has argued that the perceived vagueness in the wording of the CPPA is irrelevant in light of certain objective measures for determining the apparent age of a person in a given image, as set down in the Hilton decision, namely analysis of the physical characteristics of the individual in question and the manner in which their image is composed and displayed.  Reliance on these judicial procedures, however, falsely assumes that statutory vagueness impacts only the judicial segment of prosecution.  We find that the language of the CPPA, specifically that of subsections B, C, and D, fails to provide both law enforcement and the average citizen with a clear picture of what does and does not constitute a breach of the law, which is necessary to ensure the protection of due process.  Subsections B,C, and D rely on the clauses “appears to be” and “convey the impression that.”  Appearances and impressions are by definition subjective and contingent and as such are too vague to serve as the basis for a fair restriction on speech that is to be equitably applied.

Were we to accept the Government’s contention that the overbroad character of the CPPA could be mitigated by mandatory case-by-case evaluation of the applicability of the statute, supposedly ensuring that the CPPA would not be applied outside of its intended realm, law enforcement agencies are still left without clear direction regarding to whom the CPPA applies.  The language of the CPPA, banning visual depictions which “appears to be, of a minor engaging in sexually explicit conduct,” and visual depictions which have been advertised or otherwise represented in such away that “conveys the impression” that such visual depiction are of minors engaging in sexually explicit acts gives no guidelines to police officers seeking to uphold the law.  It leaves discretion up to the individual officer about what constitutes “appearing like a minor.”  It leaves it up to the individual officer to be impressed that a given visual depiction is of a minor. 

Suppose a police officer was walking the stereotypical beat, and came upon a theatre that was running a production of “Lolita.”  The police officer knows the story of “Lolita,” and seeing the playbill, which prominently features a picture of the young woman playing Lolita in a provocative pose, is left with the impression that the play, if it is a truthful representation of the story will include scenes that, at the very least, might “appear” to include a minor engaging in a sexually explicit acts.  Given the language of section D of the CPPA, the instigation of proceedings against the producers of the play under the CPPA comes down to this one officer’s evaluation of whether or not it is “impressed” or “conveyed” that sexually explicit visual depictions will be a part of this play.  Now, under a scheme of case-by-case application, for which the Government has argued, the final decision regarding applicability of the statute to any given situation would reside not in the hands of the police, but in the hands of the court.  This, however, neglects the reality of our legal system, namely that it is the police who are, in large part, responsible for which cases are and are not brought to trial.  For case by case evaluation to be meaningful, the conditions under which a case is subject to review must be clear enough for consistent application, not only by the courts, but by the police as well.

If we consider the above hypothetical, the subjective analysis of a single officer may lead to the trial of individuals whose “speech” via the production of “Lolita” contained no sexually explicit visual depictions whatsoever.  By the same stroke, that single officer’s subjective analysis could be that no such acts were implied, but the law itself gives no guidance as to how this determination should be reached.  How one officer chooses to interpret “appears” and “conveys the impression” might be entirely different from another officer’s interpretation even given the same situation.  Though the police are of course responsible for considerable independent analysis in the investigation of crime, their purview is traditionally limited to who committed a given crime, not an evaluation of whether or not a given act is or is not itself a crime.  This, as the Respondent aptly points out in his brief, is an unacceptable delegation of policy to law enforcement which would lead to ad hoc application of the law and as such a potential due process violation inherent to the statute. (Resp. Brief, p. 8; Grayned v. City of Rockford, 408 U.S. 104, 108-09)  Without clear definitions of what can and cannot be restricted, the CPPA cannot be enforced in a consistent and equitable fashion.  We therefore find the CPPA to be unconstitutionally vague.

In light of the overbroad and vague character of the Statute, the CPPA would not function as the Government claims it would in the pursuit of its goals to reduce real child pornography and abuse.  These goals would benefit from a more narrowly tailored statute that would free the judicial system from the burden of weeding through spurious cases and prevent restrictions on relevant and important information.

For the above reasons, we find the CPPA to be both unconstitutionally overbroad and void-for-vagueness.  In doing so we affirm and extend the decision of the appellate court as well as find the disputed constitutionality of the purported goals of the CPPA to be immaterial, as the overbroad and vague character necessitate that the statute be overturned even before its consideration.