1st Amendment Protections for Child Pornography: The 2002 Decision in the Case of Ashcroft v. Free Speech Coalition.
Laws have been passed outlawing child pornography in its various formats. It is forbidden by law to use a minor younger than age eighteen for visual depictions of sexually explicit acts. Possessions of such photographs are forbidden, and in 1966 the Child Pornography Prevention Act (CPPA) forbade trafficking in visual productions of adults who represented children engaged in sexually explicit acts. The problem was that, according to the First Amendment, adults are offered rights of free speech, of which sexual freedom is a category. In 2002, therefore, the Ashcroft v. Free Speech Coalition convened to condemn the CPPA's clauses "conveys the impression [that the adult is a minor]" and "[the adult] appears to be a minor" stating that they were unconstitutional and overbroad in their generalizations. This essay will discuss the case and use Supreme Court cases to demonstrate how the Court developed the law in this area.
Definition of Child Pornography
Judge Stewart's succinct definition of child pornography has become more famous than the formal definition. According to Judge Stewart's response in 1964 uttered to the question, "What is child pornography?" he responded: "I shall not today attempt.. To define [it], but I know it when I see it…" (Kessler, 2003).
According to the U.S. Federal Law, child pornography is:
Any visual depiction, including any photograph, film, video, picture, 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 (47 U.S.C. § 254(7)(F))
Over time, the definition of child pornography has come to mean "any photographic image, of real children or not, that in any one person's opinion might seem 'lewd'" (Encyclopedia. Web).
Brief History of Child Pornography and Acts leading up to Ashcroft v. Free Speech Coalition
Visual representations of children were not always considered obscene. Before the eighteenth century, childhood sexuality was considered normal. Cupid, for instance, a mythological figure that represents lust, has been traditionally caricaturized as a naked child. It was considered that this was a natural trait that education would naturally correct as the child developed into an adult. Later, Psychoanalysis (particularly the theory of the Oedipus complex) was formed partially as an observation of the sexual overtones allegedly represents in many respectable Victorian images and stories of children that the theory alleged indicated repressed unconscious sexual desires.
Public interest in child pornography started in the 1960s and 1970s. The most likely event that amplified this public interest in child pornography was the Brooke Shield's advertisement by Calvin Klein in 1989, where Shields, then barely fifteen, modeled a sexually attractive woman, who uttered the slogan, "What comes between me and my Calvin's? Nothing." Sales soared and no reprisals occurred. In 1995, Klein again produced advertisements that featured models, apparently minors, in suggestive poses. A legal investigation discovered that the model were adults. The third troubling Calvin Klein advertising campaign, however, was forced to retract that same day. Here we see, the progression of growing public intolerance for anything resembling child pornography.
New York v. Ferber (1982) was the first case in America that first differentiated between adult pornography and child pornography. Government reports and legal cases over the next fourteen years worked on and extended the definitions and ramification of child pornography. Key cases included the 1998 Attorney General's Commission on Pornography (the Meese report), Massachusetts's v. Oakes (1989), and Knox v. The United States (1991-1994). A succession of Acts represented: the Protecting of Children against Sexual Exploitation Act (1977) which criminalized using a minor younger than age sixteen to produce a visual depiction; the Child Prevention Act that expanded the age in the 1977 Act and expanded requirements of obscenity beyond that described under the Miller v. California; the 1984 Act that raised the minor's age to eighteen and included not-for-profit trafficking; and the 1998 Child Sexual Abuse and Pornography Act which banned production and use of advertisements for child pornography.
In 1988, the Child Protection and Obscenity Enforcement Act made it illegal "to use a computer to transport, distribute, or receive child pornography" (Mota, 2002, 87). This was followed by the Child Protection Restoration and Penalties Enhancement Act (1990) that prohibited possession of a photograph of a child in sexually explicit conduct, and, in 1994, Congress instituted restitution to victims of child pornography.
It is possible that part of his has been a reaction to the growing perils of the Internet, where explicit pictures of child pornography- exceeding far more than unclothed or semi-naked children but rather children in explicitly sexual acts -- has become a habitual occurrence. Concern is for the risk of minors using the Internet who would be routinely exposed to these pictures, and of child molestation and increasing insensitivity to the problems of child pornography as a result of seeing these images. Congress's concern also has been the potential of later molestation or injury of these children who have modeled in child pornography production when minors.
It was in these circumstances that Congress passed the Child Pornography Prevention Act (CPPA) of 1996 prohibiting photographic images, analog or digital, that seemed to have any implications of child pornography with federal punishment of prison terms including up to twenty years. Their reasoning was that:
The use of children in the production of sexually explicit material, including photographs, films, videos, computer images, and other visual depictions, is a form of sexual abuse which can result in physical or psychological harm, or both, to the children involved." (quoted by Mota, 2002, 85-8)
The CPPA, too, expanded the ban from images that used actual children to computer-generated images representing children engaged in apparent sexual modes of conduct. The Ashcroft v. The Free Speech Coalition (2002) came about as a response to the fear that the government was overstepping its rights and stepping on individual freedom.
Ashcroft V. Free Speech coalition
The issue with the CPPA Act, more specifically, was whether it challenged the First Amendment by prohibiting computer-generated images of individuals who appeared to be but was not in actuality minors engaged in sexually explicit conduct.
The CPPA had banned computer -- generated images of child pornography. These bans extended to any "sexually explicit" photography, film, video or computer-generated image or picture that (1) depicts persons who "appear to be minors;" and (2) is advertised as conveying the impression that the person depicted is a minor. The term 'sexually explicit" was elaborated to refer to "actual or simulated sexual intercourse, & #8230; bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals or pubic area" (quoted by Mota, 2002, 88). This prohibition did not apply to adults as long as it was clear that it was an adult, not someone manipulated to appear as a minor, who was engaging in this voluntary chosen act.
On January 27, 1997, the Free Speech Coalition, an adult trade association, the publisher of a book dedication to the expression of nudism, and individual artists whose works included erotic photographs and paintings filed a federal suit challenging the constitutionality of the CPPA. Their complaint primarily centered around the clauses that the clauses "conveys the impression" and "appears to be a minor" (terms that the CPPA had used) violates the First Amendment and generalizes in their vagueness.
The federal court in Free Speech Coalition v. Reno upheld the constitutionality of the CPPA on the grounds that it was a content-neutral law aimed at protecting citizens in the democracy, and, as such, advances clearly important national interests to the protection and welfare of its citizens. More so, since it particularized conduct that applied to the definition of sexually explicit, and clearly did not relate to material that employed adults, the federal district granted summary judgment to the government.
In December 1999, a three-judge panel of the 9th Circuit opined that the CPPA was unconstitutionally overbroad particularly as specified in its language "appears to be [a minor]" and in "conveys the impression." However, later on that year, the First Circuit disagreed with the Ninth Circuit maintaining that the CPPA was neither vague nor unconstitutional. In 2000 and in 20001, this decision was reinforced by the Fourth and Fifth Circuit respectively who upheld the constitutionality of the CPPA. Indeed, in 2001, the Fifth Circuit affirmed that virtual child pornography; like real child pornography is not entitled to First Amendment protection since it "is intrinsically related…