Freedom of Speech

CJ333: Week 4 Individual Liberties and The Freedom of Speech

Analysis 4.1

1

Assessment Scenario:

Steve is a third-year bachelor’s degree student studying philosophy. In his Composition II class last term, Steve was

required to write a paper about a current event that interested him. In the assignment, Steve was asked to take a

position on the current event and to craft an argument.

Steve wrote a paper discussing his personal thoughts and feelings about a case in the media involving a female college

student attending his university that was abducted in broad daylight. In his paper, Steve described in detail what he

believed should happen to the person who abducted her, including what he personally would like to do to this person.

Steve described multiple criminal acts against the abductor, including his desire to hire someone to kill this person.

Steve added specific details about how much he currently had in his savings account to pay the killer and his genuine

interest in doing so. He concluded by saying he intended to research his options for bringing this individual to justice.

After reading the paper, Steve’s professor contacted the local authorities, who later arrested Steve and charged him

with a criminal statute for solicitation of murder.

------------------------------------------------------------------------------------------------------------------------------------------ --------------

Ashcroft v. Free Speech Coalition

535 U.S. 234 (2002)

Justice Kennedy delivered the opinion of the Court.

We consider in this case whether the Child Pornography Prevention Act of 1996 (CPPA) abridges the freedom of

speech. The CPPA 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 statue 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. The new technology, according to Congress, makes it possible to create realistic images of children

who do not exist.

By prohibiting child pornography that does not depict an actual child, the statute goes beyond New York v. Ferber, 458

U.S. 747 (1982), which distinguished child pornography from other sexually explicit speech because of the State’s

interest in protecting the children exploited by the production process. As a general rule, pornography can be banned

only if obscene, but under Ferber, pornography showing minors can be proscribed whether or not the images are

obscene under the definition set forth in Miller v. California, 413 U.S. 15 (1973). Ferber recognized that “*t+he Miller

standard, like all general definitions of what may be banned as obscene, does not reflect the State’s particular and

more compelling interest in prosecuting those who promote the sexual exploitation of children.” …

CJ333: Week 4 Individual Liberties and The Freedom of Speech

Analysis 4.1

2

The principal question to be resolved, then, is whether the CPPA is constitutional where it proscribes a significant

universe of speech that is neither obscene under Miller nor child pornography under Ferber …

As a general principle, the First Amendment bars the government from dictating what we see or read or speak or hear.

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. While these categories may be prohibited

without violating the First Amendment, none of them includes the speech prohibited by the CPPA …

As we have noted, the CPPA is much more than a supplement to the existing federal prohibition on obscenity. Under

Miller v. California, 413 U.S. 15 (1973), the Government must prove that the 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. The CPPA, however, extends to images that appear to depict a minor engaging in sexually explicit

activity without regard to the Miller requirements. The materials need not appeal to the prurient interest. Any

depiction of sexually explicit activity, no matter how it is presented, is proscribed. The CPPA applies to a picture in a

psychology manual, as well as a movie depicting the horrors of sexual abuse. It is not necessary, moreover, that the

image be patently offensive. Picture of what appear to be 17-year-olds engaging in sexually explicit activity do not in

every case contravene community standards.

The CPPA prohibits speech despite its serious literary, artistic, political, or scientific value. The statute proscribes 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 throughout the ages. Under the CPPA, images are prohibited so long as the persons

appear to be under 18 years of age. This is higher than the legal age for marriage in many States, as well as the age at

which persons may consent to sexual relations. It is, of course, undeniable that some youths engage in sexual activity

before the legal age, either on their own inclination or because they are victims of sexual abuse.

Both themes—teenage sexual activity and the sexual abuse of children—have inspired countless literary works.

William Shakespeare created the most famous pair of teenage lovers, one of whom is just 13 years of age. See Romeo

and Juliet, act I, sc. 2, 1. 9 (“She hath not seen the change of fourteen years”). In the drama, Shakespeare portrays the

relationship as something splendid and innocent, but not juvenile. The work has inspired no less than 40 motion

pictures, some of which suggest that the teenagers consummated their relationship. Shakespeare may not have

written sexually explicit scenes for the Elizabethan audience, but were modern directors to adopt a less conventional

approach, that fact alone would not compel the conclusion that the work was obscene.

CJ333: Week 4 Individual Liberties and The Freedom of Speech

Analysis 4.1

3

Contemporary movies pursue similar themes. Last year’s Academy Awards featured the movie, Traffic, which was

nominated for Best Picture. The film portrays a teenager, identified as a 16-year-old, who becomes addicted to drugs.

The viewer sees the degradation of her addiction, which in the end leads her to a filthy room to trade sex for drugs.

The year before, American Beauty won the Academy Award for Best Picture. In the course of the movie, a teenage girl

engages in sexual relations with her teenage boyfriend, and another yields herself to the gratification of a middle-aged

man. The film also contains a scene where, although the movie audience understands the act is not taking place, one

character believes he is watching a teenage boy performing a sexual act on an older man.

Ferber 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. First, as a permanent record of a child’s

abuse, the continued circulation itself would harm the child who had participated. Like a defamatory statement, each

new publication of the speech would cause new injury to the child’s reputation and emotional well-being. Second,

because the traffic in child pornography was an economic motive for its production, the State had an interest in closing

the distribution network. “The most expeditious if not the only practical method of law enforcement may be to dry up

the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise

promoting the product.” Under either rationale, the speech had what the Court in effect held was a proximate link to

the crime from which it came. …

In contrast to the speech in Ferber, speech that itself is the record of sexual abuse, the CPPA prohibits speech that

records no crime and creates no victims by its production. Virtual child pornography is not “intrinsically related” to the

sexual abuse of children, as were the materials in Ferber. While the Government asserts that the images can lead to

actual instances of child abuse the causal link is contingent and indirect. The harm does not necessarily follow from the

speech, but depends upon some unquantified potential for subsequent criminal acts. …

The CPPA, for reasons we have explored, is inconsistent with Miller and finds no support in Ferber. The Government

seeks to justify its prohibitions in other ways. It argues that the CPPA is necessary because pedophiles may use virtual

child pornography to seduce children. There are many things innocent in themselves, however, such as cartoons, video

games, and candy, that might be used for immoral purposes, yet we would not expect those to be prohibited because

they can be misused. The Government, of course, may punish adults who provide unsuitable materials to children, and

it may enforce criminal penalties for unlawful solicitation. The precedents establish, however, that speech within the

rights of adults to hear may not be silenced completely in an attempt to shield children from it. In Butler v. Michigan,

352 U.S. 380, 381 (1957), the Court invalidated a statute prohibiting distribution of an indecent publication because of

its tendency to “incite minors to violent or depraved or immoral acts.” A unanimous Court agreed upon the important

CJ333: Week 4 Individual Liberties and The Freedom of Speech

Analysis 4.1

4

First Amendment principle that the State could not “reduce the adult population… to reading only what is fit for

children.” …

The Government submits further that virtual child pornography whets the appetites of pedophiles and encourages

them to engage in illegal conduct. This rationale cannot sustain the provision in question. 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 the 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.

The Government next argues that its objective of eliminating the market for pornography produced using real children

necessitates a prohibition on virtual images as well. Virtual images, the Government contends, are indistinguishable

from real ones; they are part of the same market and are often exchanged. In this way, it is said, virtual images

promote the trafficking in works produced through the exploitation of real children. The hypothesis is somewhat

implausible. If virtual images were identical to illegal child pornography, the illegal images would be driven from the

market by the indistinguishable substitutes. Few pornographers would risk prosecution by abusing real children if

fictional, computerized images would suffice. …

Finally, the Government says that the possibility of producing images by using computer imaging makes it very difficult

for it to prosecute those who produce pornography by using real children. Experts, we are told, may have difficulty in

saying whether the pictures were made by using real children or by using computer imaging. The necessary solution,

the argument runs, is to prohibit both kinds of images. The argument, in essence, is that protected speech may be

banned as a means to ban unprotected speech. This analysis turns the First Amendment upside down.

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. The Constitution requires the revers. …

In sum, [the CPPA] 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 not justification in our precedents or in the law of

the First Amendment. The provision abridges the freedom to engage in a substantial amount of lawful speech. For this

reason, it is overbroad and unconstitutional. …

CJ333: Week 4 Individual Liberties and The Freedom of Speech

Analysis 4.1

5

For the reasons we have set forth, the prohibitions of [the CPPA] are overbroad and unconstitutional. Having reached

this conclusion, we need not address respondents’ further contention that the provisions are unconstitutional because

of vague statutory language.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

Justice Thomas, concurring in the judgment.

Chief Justice Rehnquist, with whom Justice Scalia joins in part, dissenting.

I agree with Part II of Justice O’Connor’s opinion concurring in the judgment in part and dissenting in part. 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.

I also agree with Justice O’Connor that serious First Amendment concerns would arise were the Government ever to

prosecute someone for simple distribution or possession of a film with literary or artistic value, such as “Traffic” or

“American Beauty.” I write separately, however, because the Child Pornography Prevention Act of 1996 (CPPA), 18

U.S.C. §2251 et seq., need not be construed to reach such materials.

We normally do not strike down a statute on First Amendment grounds “when a limiting instruction has been or could

be placed on the challenged statute.” This case should be treated no differently.

Justice O’Connor, with whom The Chief Justice and Justice Scalia join as to Part II, concurring in the judgment in part

and dissenting in part.

Although in my view the CPPA’s ban on youthful-adult pornography appears to violate the First Amendment, the ban

on virtual-child pornography does not. It is true that both bans are authorized by the same text: The statutes definition

of child pornography to include depictions that “appea*r+ to be” of children in sexually explicit poses. 18 U.S.C.

§2256(8)(B). Invalidating a statute due to overbreadth, however, is an extreme remedy, one that should be employed

“sparingly and only as a last resort.” We have observed that “*i+t is not the usual judicial practice, … nor do we consider

it generally desirable, to proceed to an overbreadth issue unnecessarily.”

CJ333: Week 4 Individual Liberties and The Freedom of Speech

Analysis 4.1

6

Heeding this caution, I would strike the “appear to be” provision only insofar as it is applied to the subset of cases

involving youthful-adult pornography. …

Source: Hall, D. E., & Feldmeier, J. P. (2012). Constitutional law: Governmental powers and individual freedoms (2nd

ed.). Upper Saddle River, NJ: Pearson Education.