In New York v. Ferber,1390 the Court recognized another category of expression that is outside the coverage of the First Amendment: the visual depiction of children in films or still photographs in a variety of sexual activities or exposures of the genitals. The reason that such depictions may be prohibited was the governmental interest in protecting the physical and psychological well-being of children, whose participation in the production of these materials would subject them to exploitation and harm. The state may go beyond a mere prohibition of the use of children, because it is not possible to protect children adequately without prohibiting the exhibition and dissemination of the materials and advertising about them. Thus, “the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required.”1391 But, because expression is involved, the government must carefully define what conduct is to be prohibited and may reach only “works that visually depict sexual conduct by children below a specified age.”1392
The reach of the state may even extend to private possession of child pornography in the home. In Osborne v. Ohio1393 the Court upheld a state law criminalizing the possession or viewing of child pornography as applied to someone who possessed such materials in his home. Distinguishing Stanley v. Georgia, the Court ruled that Ohio’s interest in preventing exploitation of children far exceeded what it characterized as Georgia’s “paternalistic interest” in protecting the minds of adult viewers of pornography.1394 Because of the greater importance of the state interest involved, the Court saw less need to require states to demonstrate a strong necessity for regulating private possession as well as commercial distribution and sale.
In Ashcroft v. Free Speech Coalition, the Court held unconstitutional the federal Child Pornography Prevention Act (CPPA) to the extent that it prohibited pictures that were not produced with actual minors.1395 Prohibited pictures included computer-generated (“virtual”) child pornography, and photographs of adult actors who appeared to be minors, as well as “a Renaissance painting depicting a scene from classical mythology.”1396 The Court observed that statutes that prohibit child pornography that use real children are constitutional because they target “[t]he production of the work, not the content.”1397 The CPPA, by contrast, targeted the content, not the means of production. The government’s rationales for the CPPA included that “[p]edophiles might use the materials to encourage children to participate in sexual activity” and might “whet their own sexual appetites” with it, “thereby increasing . . . the sexual abuse and exploitation of actual children.”1398 The Court found these rationales inadequate because the government “cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts” and “may not prohibit speech because it increases the chance an unlawful act will be committed ‘at some indefinite future time.’ ”1399 The government had also argued that the existence of “virtual” child pornography “can make it harder to prosecute pornographers who do use real minors,” because, “[a]s imaging technology improves . . . , it becomes more difficult to prove that a particular picture was produced using actual children.”1400 This rationale, the Court found, “turns the First Amendment upside down. The Government may not suppress lawful speech as a means to suppress unlawful speech.”1401
In United States v. Williams,1402 the Supreme Court upheld a federal statute that prohibits knowingly advertising, promoting, presenting, distributing, or soliciting material “in a manner that reflects the belief, or that is intended to cause another to believe, that the material” is child pornography that is obscene or that depicts an actual minor (i.e., is child pornography that is not constitutionally protected).1403 Under the provision, in other words, “an Internet user who solicits child pornography from an undercover agent violates the statute, even if the officer possesses no child pornography. Likewise, a person who advertises virtual child pornography as depicting actual children also falls within the reach of the statute.”1404 The Court found that these activities are not constitutionally protected because “[o]ffers to engage in illegal transactions [as opposed to abstract advocacy of illegality] are categorically excluded from First Amendment protection,” even “when the offeror is mistaken about the factual predicate of his offer,” such as when the child pornography that one offers to buy or sell does not exist or is constitutionally protected.1405
- 458 U.S. 747 (1982). Decision of the Court was unanimous, although there were several limiting concurrences. Compare, e.g., 775 (Justice Brennan, arguing for exemption of “material with serious literary, scientific, or educational value”), with 774 (Justice O’Connor, arguing that such material need not be excepted). The Court did not pass on the question, inasmuch as the materials before it were well within the prohibitable category. Id. at 766–74.
- 458 U.S. at 763–64.
- 458 U.S. at 764 (emphasis original). Child pornography need not meet Miller obscenity standards to be unprotected by the First Amendment. Id. at 764–65.
- 495 U.S. 103 (1990).
- 495 U.S. at 108.
- 535 U.S. 234 (2002).
- 535 U.S. at 241.
- 535 U.S. at 249; see also id. at 241.
- 535 U.S. at 241.
- 535 U.S. at 253.
- 535 U.S. at 242.
- 535 U.S. at 255. Following Ashcroft v. Free Speech Coalition, Congress enacted the PROTECT Act, Pub. L. 108–21, 117 Stat. 650 (2003), which, despite the decision in that case, defined “child pornography” so as to continue to prohibit computer-generated child pornography (but not other types of child pornography produced without an actual minor). 18 U.S.C. § 2256(8)(B). In United States v. Williams, 128 S. Ct. 1830, 1836 (2008), the Court, without addressing the PROTECT Act’s new definition, cited Ashcroft v. Free Speech Coalition with approval.
- 128 S. Ct. 1830 (2008).
- 18 U.S.C. § 2252A(a)(3)(B).
- 128 S. Ct. at 1839.
- 128 S. Ct. at 1841, 1842, 1843. Justice Souter, in a dissenting opinion joined by Justice Ginsburg, agreed that “Congress may criminalize proposals unrelated to any extant image,” but disagreed with respect to “proposals made with regard to specific, existing [constitutionally protected] representations.” Id. at 1849. Justice Souter believed that, “if the Act stands when applied to identifiable, extant [constitutionally protected] pornographic photographs, then in practical terms Ferber and Free Speech Coalition fall. They are left as empty as if the Court overruled them formally . . . .” Id. at 1854. Justice Scalia’s opinion for the majority replied that this “is simply not true . . . . Simulated child pornography will be as available as ever, so long as it is offered and sought as such, and not as real child pornography. . . . There is no First Amendment exception from the general principle of criminal law that a person attempting to commit a crime need not be exonerated because he has a mistaken view of the facts.” Id. at 1844–45.