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Copyright (c) 2004 Akron Law Review

Akron Law Review

2004

37 Akron L. Rev. 379

LENGTH: 13804 words

NOTE: Ashcroft v. Free Speech Coalition: Can We Roast the Pig Without Burning Down the House in Regulating "Virtual" Child Pornography?+

+ Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). Respondent's Brief at 3, Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (No. 00-795) (quoting

Attorney General's Commission on Pornography, Final Report 411 n. 74 (1986)). The Commission concluded that "legislators should not pass child pornography legislation designed to burn the house to roast the pig." Id. See also Butler v. Michigan, 352 U.S. 380, 383 (1957). "Child pornography" is defined as: "material depicting a person

under the age of 18 engaged in sexual activity." Black's Law Dictionary 1181 (7th ed. 1999). "Sexual activity" is defined as: "sexual intercourse" or "physical sexual activity that does not necessarily culminate in intercourse." Id. at 1379.

NAME: Ryan P. Kennedy

LEXISNEXIS SUMMARY:

... The First Amendment's guarantee of free speech is not limitless. ... Secondly, the Court pointed out that "prohibiting child pornography that does not harm an

actual child," is not supported by the Court's previous holding in New York v. Ferber. The Court then refused to recognize "virtual" child pornography as an additional

category of unprotected speech. ... The Supreme Court's holding in Ashcroft v. Free Speech Coalition refused to place "virtual" child pornography in the same category as traditional child pornography. ... The Court in Free Speech acknowledged this

possibility in response to the government's contention that the prohibition of "virtual"

child pornography was necessary in order to meet its objective of eliminating the

traditional child pornography market. ... Some have argued that, although not fitting within the Ferber category of unprotected speech, virtual child pornography should join child pornography, obscenity, defamation, etc., as a separate category of speech unprotected by the First Amendment. ... Now technological advances have allowed for the creation of virtual child pornography, which is produced without the use of actual children. ...

HIGHLIGHT: If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought - not free thought for those who agree with us but freedom for the thought that we hate.*

- Justice Oliver Wendell Holmes

* United States v. Schwimmer, 279 U.S. 644, 654-55 (1929) (Holmes, J.,

dissenting).

TEXT:

[*379]

I. Introduction

The First Amendment's n1 guarantee of free speech is not limitless. n2 The Supreme Court has carved out a number of categories of expression that do not receive its protection. n3 Child pornography is one of these [*380] categories of expression that fall outside the protection of the Constitution and may be lawfully prohibited. n4 Despite its prohibited status the creation and distribution of child pornography

continues to be a growing national problem. n5 The adverse effect it has on society is without doubt. n6

Accordingly, the United States Congress has made repeated attempts to better

enable law enforcement to strike at child pornography distribution networks. n7 In 1996, Congress took the next step by passing the Child Pornography Prevention Act of 1996 (CPPA). n8 The CPPA expanded [*381] the definition of child

pornography to include "virtual" child pornography. n9 It also expanded the

definition to include material that is pandered as child pornography. n10 Several states have enacted similar statues aimed at prohibiting these types of child

pornography. n11 Congress pointed to the negative secondary effects of "virtual" child pornography as justification for its prohibition. n12 Unfortunately, this

expansion [*382] of the definition of child pornography runs afoul of触犯 the

First Amendment guarantee of freedom of speech. n13

In Ashcroft v. Free Speech Coalition, the U.S. Supreme Court considered the

constitutional validity of the portion of the CPPA that expanded the definition of

child pornography to include images created using no actual children. n14 In striking down （打击）the statute, the Supreme Court held that the "appears to be" n15 and "conveys the impression" n16 sections of the CPPA were unconstitutional

infringements （侵犯）upon the First Amendment. n17

主要内容This Note will explore the struggle in the area of child

pornography between the state's legitimate interest in the protection of children and the First Amendment's guarantee of free speech. n18

Part II provides a brief history of the free speech doctrine as related to the area of child pornography prevention. n19

Part III discusses the circuit split, as well as the facts, procedural history, and the holding of the Supreme Court. n20 Finally,

Part IV will examine the effect of the Court's interpretation of the statute as unconstitutional, explain why the decision was correct, and [*383] look at

Congress' recent efforts at new legislation to replace the CPPA. n21

II. Background

A. Regulations on Speech: Content-Neutral v. Content-Based（中立vs偏见）

1. Content-Neutral Restrictions

The First Amendment's guarantee of free speech is not absolute and in certain

circumstances may be limited through content-neutral or content-based restrictions. n22 Content-neutral restrictions allow lawmakers to legitimately limit speech based on the secondary effects that the speech may have. n23方式是 Often in the form of "time, place, and manner restrictions," these laws are not concerned with （the subject matter 主题）of the speech, but rather they serve a purpose unrelated to the content of the speech. n24 The objectives of such statutes can be justified without reference to the restricted speech's content, and the restrictions are subsequently

deemed to [*384] be content-neutral. n25 Such regulations are valid under the First Amendment if they advance an important governmental interest unrelated to the

suppression of speech and do not burden substantially more speech than necessary to further those interests. n26

2. Content-Based Restrictions

In contrast to content-neutral regulations, content-based regulations specifically target the substance of a particular form of speech for regulation. n27 Such

restrictions seek to prohibit the particular words, ideas, or messages of a speaker, and therefore are subject to （strict scrutiny严格审查标准）. n28 To survive a constitutional challenge, a content-based restriction must be necessary to serve a compelling state interest and must be narrowly drawn to achieve that end. n29

B. The Regulation of Child Pornography

1.

CPPA Legislative Attempts to Eliminate Child Pornography Prior to the

a. The Protection of Children Against Exploitation Act of 1977

Congress' first attempt to deal with the problem of child pornography came in the form of the Children Against Exploitation Act of 1977. n30 The statute made illegal the use of children under the age of sixteen [*385] in the production of sexually explicit material to be distributed in interstate commerce. n31 The legislation did not address the mere trading of child pornography, but rather only regulated its

commercial sale. n32 Also, the material had to be obscene in order to be criminalized under the statute. n33

b. The Child Protection Act of 1984

Congress again addressed the issue of child pornography in 1984 with the passage of the Child Protection Act. n34 The Act was passed partially in response to the

ineffectiveness of the previous legislation, which produced only one conviction under the production prohibition. n35 The 1984 Act raised the protected age limit from sixteen to eighteen years of age as well as eliminating the requirement that the

material be obscene before its production could be found to be criminal. n36 Also, under this act, the material need not be created or distributed for the purpose of a commercial transaction. n37

c. The Child Sexual Abuse and Pornography Act of 1986

The next piece of legislation came in 1986 when Congress prohibited [*386] advertisements for child pornography in the Child Sexual Abuse and Pornography

Act of 1986. n38 In the same term, the Congress also passed legislation subjecting pornographers to personal liability for injuries inflicted upon the child models. n39

d. The Child Protection and (Obscenity 猥亵，淫秽)Enforcement Act of 1988

Congress first addressed the connection between child pornography and emerging

computer technology in the Child Protection and Obscenity Enforcement Act of 1988. n40 With this statute Congress prohibited the use of computers to transport, distribute, or receive child pornography. n41

[*387]

2. Judicial Treatment of Child Pornography

a. New York v. Ferber n42

In 1982, the Supreme Court first dealt directly with the issue of child pornography in The case of New York v. Ferber. n43 In Ferber, a bookstore owner was convicted

under a New York statute which prohibited the promotion of a sexual performance by a child under the age of sixteen. n44 The defendant was charged after he sold, to an undercover police officer, two films depicting boys masturbating手淫. n45 The statute lacked any requirement that the prohibited material be obscene. n46 The

Appellate Division 上诉庭of the New York Supreme Court affirmed the conviction, which was subsequently reversed by the New York Court of Appeals on the ground that the statute violated the First Amendment because it was overbroad. n47 The United States Supreme Court granted certiorari 诉讼文件移送命令to

resolve the issue of whether material depicting children engaged in sexually explicit conduct can be prohibited regardless of whether the material [*388] is obscene. n48

The Supreme Court, in a unanimous decision, upheld the constitutionality of the New York statute. n49 The Court held that the advertising and selling of child pornography was not entitled to First Amendment protection, regardless of whether the material was obscene. n50 The Court articulated five reasons why states are "entitled to

greater leeway余地 in the regulation of pornographic depictions of children." n51 First, the state has a compelling interest in safeguarding the well-being of children. n52 Second, the Court recognized that the distribution of child pornography furthers the exploitation and abuse of children by creating a permanent record of the abuse. n53 Third, the advertising and selling of child pornography encourages the market