Ashcroft v. Free Speech Coalition,

¶ … Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) Procedural history: In Ashcroft v. Free Speech Coalition, the majority of the U.S. Supreme Court rejected an expansion of non-protected speech categories and affirmed the lower court's decision. The statute in question banned images of what appeared to be minors engaged in sexual conduct although the images were produced through digital or other means. Facts: Earlier rulings by the court in Miller v. California had created a category of 'obscenity' that was not protected speech.

Such speech could be restricted according to community standards (like prohibiting an adult theater from promoting its content outside of a school zone). In another relevant ruling, New York v. Ferber, child pornography was declared illegal given that the production of the material was the result of a crime evidently committed upon children and the state had a compelling interest in protecting children from abuse.

Issue: Congress passed a more stringent definition of child pornography in the Child Pornography Prevention Act of 1996 (CPPA), prohibiting any image that APPEARED to be a child engaging in sexual activity, which seemed to be a direct challenge of the Ferber standard. The CPPA banned sexual images using digital enhancement or using youthful looking adults. The Free Speech Coalition argued that this definition was excessively broad and vague and could be used to severely restrict a wide range of speech content, much of which was not obscene.

Summary of arguments: The majority, finding in favor of the Free Speech Coalition referred to Miller's community-based standard for obscenity, and noted that in today's day and age, the image of teenagers engaged in sexual intercourse was not a violation of many community's standards of obscenity. The Miller standard, when evaluating obscenity, also demanded that the work as a whole be considered, when judging if it has redeeming value.

Conceivably, if the new standard was applied, a production of Romeo and Juliet could be banned, given that it contained the appearance of sexual intercourse between minors. Ferber applied a more stringent standard to child pornography only because the production of child pornography was related to the actual abuse of children, which was not germane to the images covered in the CPPA statue.

Writing in dissent, Chief Justice Rehnquist argued that the CPPA was merely a natural extension of Ferber, and the new law seemed intended to be used only to prosecute those individuals distributing materials known to use real children. Holding: Court's reasoning and policy implications: Justice Anthony Kennedy, writing for the majority, found in favor of the Free Speech Coalition, and affirmed the judgment of the Court of Appeals to strike down the relevant statutes. Critical to Kennedy's decision was the government's radical reformulation of the obscenity standard in Miller.

To be banned under the CPPA standard, the materials in question "need not appeal to the prurient interest. Any depiction of sexually explicit activity, no matter how it is presented, is proscribed," even though there was no clear physical threat to a child, according to the Ferber standard.

The government was suppressing lawful speech (speech not using children to produce sexual content) in an effort to suppress unlawful speech, alleging that allowing sexualized images of children could possibly lead to the use of real children or the real abuse of children. Kennedy found the government's.