Ashcroft v. Free Speech Coalition - Opinion Announcement

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 00-795 Ashcroft versus Free Speech Coalition will be announced by Justice Kennedy.

Argument of Justice Kennedy

Mr. Kennedy: This case considers whether certain provisions of the Child Pornography Prevention Act of 1996, a federal statute, abridged the freedom of speech.

As a general rule, pornography can be prohibited only if it is obscene but an exception to the rule exists for pornography is produced using children.

The Act here extends the federal ban on child pornography to what is called virtual child pornography.

These are images that appear to depict minors but were not produced using any real children.

By its literal term, the definition covers a renaissance painting depicting a scene from classical mythology or a Hollywood movie films without child actors if the adults depicted appear to be minors engaging in simulated sexual intercourse.

The respondents are makers of adult films and graphic artists who fear that their works which do not use real children might be prohibited by the Act’s expanded definition of child pornography.

The Court of Appeals for the Ninth Circuit held that the Act was overbroad in violation of the First Amendment in those relevant provisions that we consider here and we now affirm.

The sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of any decent people.

And Congress within its proper jurisdiction may pass valid laws to protect children from abuse and of course it has.

The prospect of crime, however, does not by itself justify laws suppressing speech.

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

The Act’s penalties are severe.

A first offender may be imprisoned for 15 years; a repeat offender faces a sentence of not less than 5 years and not more than 30 years.

While even minor punishments can show speech, this case provides a textbook example of why we permit facial challenges to statutes that burden expression. With these severe penalties enforced, few movie producers or book publishers would risk distributing images in or near the uncertain reach of this law.

Freedom of speech does have 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, this Act goes beyond these existing categories.

The Act covers more than obscenity because as we have noted, it extends to works that need not appeal to the prurient interest or offend community standards and importantly may have artistic and literary value.

The apparent age of persons depicted may be relevant to whether an image offends community standards.

Pictures of young children engaged in certain acts might be obscene where similar depiction of adults are perhaps even older adolescence would not.

On the other hand, pictures that appear to be 17 year olds engaging in sexually explicit activity do not in every case contravene community standards.

The statute proscribe the visual depiction of an idea that of teenagers engaging in sexual activity that is a fact of modern society and it has been an artistic theme from Romeo and Juliet to the contemporary films of American Beauty and Traffic.

The Act also goes beyond the ban on child pornography because it targets the contents of the image rather than the circumstances of production.

The government points out that the Act was not a complete ban because it has an affirmative defense that protects some defendants who prove that the images do not use real children.

Imposing on the defendant the burden of proving a speech is not unlawful, however, it raises serious constitutional difficulties and here the defense is fatally incomplete in any event because persons charged with possessing as opposed to distributing virtual image have no affirmative defense.

For this reason, the affirmative defense could not save the statutory provisions.

Respondents also have challenged a separate provision which prohibits images whose context conveys the impression that they are child pornography, although the provision is aimed at preventing the pondering of images as child pornography, we hold that it is overbroad and it makes the possession of those images a crime even where the defendant bears no responsibility for the unlawful context.

These are the reasons we relied upon for our determination that the children’s provisions of the Act are invalid.

Justice Thomas has filed an opinion concurring in the judgment; Justice O’Connor has filed an opinion concurring in the judgment in part and dissenting in part in which the Chief Justice and Justice Scalia join us to the part 2; The Chief Justice has also filed a dissenting opinion which with one reservation has joined by Justice Scalia.