First Amendment protections in Ashcroft v. Free Speech Coalition

¶ … 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.

Conclusions and Ramifications

In an attempt to curb online dissemination of child pornographic material on cyber space and to impede the consequent harm to children from viewing and being effected by such material and from child molestation, as well as from traders profiting by providing such material, the federal government sought to regulate this material in various ways, but the Ashcroft v. Free Speech Coalition (2002), found First Amendment contradictions. As Justice Kennedy argued: "There are many things innocent in themselves… such as cartoons, video games, and candy that might be used for immoral purposes, yet we would not expect these to be prohibited because they can be misused."

Critics however have disagreed with this, citing that child pornography is a very different concept to that of candy, cartoons, and video games. The first might likely be benign and innocent; the latter is obnoxious and harmful to public safety including that of the vulnerable child.

More so, even though Kennedy has argued that: "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought," critics would argue that the definition of 'speech' is wide and all embracing. Speech that is harmful to public welfare, including that of the most vulnerable of the population, should be prohibited. Mota (2002), for instance speaking from the position of a daughter whose father was imprisoned due to such allegations, observed that prevention of child abuse is "a much better option than prosecution after the crime has been committed" (91-92). The results of the Ashcroft v. Free Speech Coalition (2002) are that child pornography using real children is banned, although virtual child pornography that does not employ actual minors is not. In this way, adherence to the First Amendment is maintained although many may find such adherence costly to their morality of life and claim it counterproductive to ensuring the safety of children.

Sources

Cornell University Law School: Ashcroft v. free Speech Coalition. Web. www.law.cornell.edu/supct/html/00-795.ZS.html

Encyclopedia of Children and Childhood in History and Society. Web. http://www.faqs.org/childhood/Bo-Ch/Child-Pornography.html

First Amendment Library. Ashcroft v. free Speech Coalition. www.firstamendmentcenter.org/faclibrary/case.aspx?id=808

Fisher, W.A. & Azy B. (1991). Pornography, Erotica, and Behavior: More Questions than Answers. International Journal of Law and Psychiatry, 14, 65 -- 73.

Kessler, J.M. (2003). Ashcroft v. free Speech Coalition. Appalachian J, 61-72.

Mota, S.A. (2002). The U.S. Supreme Court addresses the Child Pornography Prevention Act & #8230; Federal Communications Law Journal, 13, 85-98

Strossen, N. (1995). Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights. New York: Scribner.