*1 ASHCROFT, GENERAL, ATTORNEY et al.
FREE SPEECH COALITION et al. 16, No. 00-795. October Argued April 2001—Decided *4 Deputy argued Solicitor General Clement cause for petitioners. With him on the briefs were Solicitor General Acting Olson, Acting Solicitor Underwood, General Assist- Attorney ant Deputy General Schiffer, Solicitor General Irving Herwig, Kneedler, Gornstein, L. Barbara L. and Jacob M. Lewis.
H. argued Louis respondents. Sirkin the cause With him on the brief were Laura A. P. Abrams John * Feldmeier. *Briefs of amici curiae reversal urging were filed for the State New Farmer, Jr., et Jersey al. J. John Attorney Jersey, General Newof *5 Kennedy delivered the of the opinion Court.
Justice We consider this case whether the Child Pornography seq., et Act of (CPPA), §2251 Prevention 18 U. S. C. the freedom of The CPPA extends abridges speech. federal prohibition against sexually minors but explicit images were appear depict pro- duced without real children. The statute using any pro- hibits, circumstances, specific possessing distributing these which be created adults who images, by using Johnston, Patrick DeAlmeida and Carol General, Deputy Attorneys and Bill by Attorneys General for their respective jurisdictions as follows: Pryor Alabama, Bruce M. Alaska, of Botelho Janet of Napolitano of Ari- zona, Pryor Mark Ken Salazar of Arkansas, Richard Blu- Colorado, of Connecticut, menthal M. Delaware, of Brady Jane Robert A. Butter- of worth of Earl I. Anzai of Florida, Hawaii, Illinois, Ryan James E. Steve of Carter Indiana, Thomas J. Miller of Iowa, Carla J. Kansas, of Stovall of Curran, Jr., J Joseph Thomas F. of Reilly Maryland, Massachusetts, of M. Granholm Mike Minnesota, of Hatch Mike of Michigan, Jennifer Moore of Don Stenberg of Frankie Del Papa Nebraska, Sue Mississippi, Patricia A. Madrid Nevada, Mexico, of Roy Cooper of New of North Caro- lina, Wayne Stenehjem of North Herbert D. Soil of the Northern Dakota, Islands, Betty D. W.A. Ohio, Mariana Montgomery Drew Edmondson of Oklahoma, of Hardy D. Michael Myers Oregon, Fisher of Pennsylvania, of Sheldon Whitehouse of Rhode M. Island, Charles Condon of South Caro- lina, John Cornyn Mark L. Texas, Utah, Mark L. Earley Shurtleff of Virginia, Christine O. Gregoire Washington, and E. Doyle James Wisconsin; for the National Center for & Missing Exploited by Children Dennis DeConcini and Susan M. Kalp; for the National Law Center for Flores, Children and Families J. Robert Bruce A. al. by Taylor, et and LaRue; Janet M. for the National Legal C. Barry Hodge; Foundation Whitehead; Inc., Morality Media, by Robin S. and for Senator Sam Sekulow, Roth, by Jay Alan Brownback et Stuart J. James M. Hender- al. son, Sr., Cortman, Weber, A. Colby May, David M. M. Walter and Benja- min W.Bull. Briefs of amici curiae urging affirmance were filed for the American Turner, Beeson, Civil Liberties Union et al. by William Bennett Ann E. R. Steven and Shapiro; for the Publishers, Inc., Association of American Rich, Bloom, et al. R. by Bruce Jonathan A. Bamberger; Michael Jodie L. for the Liberty Kelley and Daniel Mach. Project by *6 new like minors or The look using imaging. by computer to makes possible technology, according Congress, of children who do not See create realistic exist. images §2251. 18 *7 on visual does not at all prohibition “any depiction” depend on how the The section produced. a image captures range of sometimes called “virtual child depictions, pornography,” which include as well as computer-generated images, images instance, more traditional means. For produced by lit- eral terms of statute embrace a Renaissance painting a scene from classical a depicting mythology, “picture” to be, of minor con- “appears sexually engaging explicit duct.” The statute also movies, filmed prohibits Hollywood without child if a actors, believes an actor any jury “appears to be” a minor in “actual or simulated . . . sexual engaging §2256(2). intercourse.”
These do not involve, harm, let alone images children any in the but decided production the materi- process; Congress als threaten children in other, direct, less ways. Pedophiles use the materials might to children to encourage participate in sexual child who is activity. “[A] reluctant to engage sexual with an adult, or to activity pose sexually explicit can sometimes be convinced de- photographs, by viewing of other children fun’ pictions in such ‘having participating *8 2256(8)(B) broad. quite Section defines child pornography to include any “advertised, that was sexually explicit image promoted, described, or presented, distributed in such a manner that the minor “a conveys impression” depicts in conduct.” engaging One sexually explicit Committee identified Report the as directed at ex- provision sexually plicit child S. pandered See pornography. Rep. No. 104-358, (1996) (“This 22 p. child provision prevents and from pornographers pedophiles in- exploiting prurient terests in child and sexuality sexual the activity through production of distribution material which is pornographic as child intentionally pandered The statute pornography”). is not so limited in reach, its however, as it even punishes
243 those who no a took Once possessors part pandering. work has been as child the taint re- described pornography, on mains the hands of the speech subsequent possessors, unlawful even the content other- making possession though would wise not be objectionable. that the its CPPA threatened the activities of
Fearing members, Free Coalition and others chal- respondent Speech the statute the United States District Court for lenged Northern District of Coalition, the a California. Cali- fornia trade association for the adult-entertainment indus- that its members did not use minors their try, alleged works, but believed some these sexually explicit they materials fall within the CPPA’s definition might expanded The other are Bold pornography; respondents Type, Inc., the of a book the nudist life- publisher advocating Jim Ron nudes; and style; Gingerich, Raffaelli, painter in erotic photographer specializing images. Respondents that the to be” alleged “appears “conveys impres- sion” are overbroad and provisions them from vague, chilling works the First Amendment. The producing protected by District Court disagreed granted summary judgment The court Government. dismissed the overbreadth claim because it was that “highly unlikely” any “adaptations of sexual works like Juliet,’ ‘Romeo and . will be .. treated as ‘criminal contraband.’” to Pet. for Cert. 62a-63a. App.
The Court of Ninth Appeals Circuit reversed. (1999). F. 3d The court reasoned Govern- ment could not because of prohibit speech its tendency viewers to commit acts. The persuade court held the illegal CPPA overbroad because it bans substantially materi- als are neither obscene nor produced exploitation (1982). of real as in Ferber, children New York v. 458 U. S. on dissented Judge Ferguson virtual ground images, like and real child obscenity should be treated pornography, aas category First unprotected by Amend- ment. 3d, F. at 1097. The *9 of Court voted to Appeals 244 banc, for en over the dissent of
deny rehearing petition (2000). three 220 1113 F. 3d judges. on
While
Ninth
the CPPA invalid
its
Circuit found
face, four other Courts of
have sustained it. See
Appeals
Fox,
United
United States
(CA5
States
v.
II
The
commands,
First Amendment
shall make
“Congress
no
.
law .
the freedom
.
of
abridging
speech.”
gov
g.,
e. Ro
ernment
violate this mandate in
may
ways,
many
senberger
Va.,
v. Rector and Visitors
Univ.
515
U. S.
of
of
819 (1995); Keller v.
Cal.,
State Bar
(1990),
496 U.
but
S.
a law
criminal
on
imposing
is a
penalties
speech
protected
stark
The CPPA’s
example
speech suppression.
penalties
are indeed severe. A first offender
imprisoned
2252A(b)(l).
§
A
years.
offender faces a
repeat
prison
sentence of not less than 5
and not more than 30
years
years
Ibid. While even minor
in prison.
can chill
punishments
Wooley Maynard,
see
v.
protected
The sexual abuse of a crime most serious and an act to the moral instincts of a decent In repugnant people.
245 that there are its findings, Congress legislative recognized who harbor illicit desires for children subcultures of persons and commit criminal acts to See Con impulses. gratify §2251; *11 that to be the law and proposed Ferguson recognized as addi virtual child should be an regarded 3d, at of 198 F. tional See speech. category unprotected 1101. It would be for us to take this necessary step the statute. uphold
As we have the CPPA much more than a noted, is sup- to the federal on obscenity. plement existing prohibition (1973), Under Miller v. 413 U. 15 the Gov- S. California, work, whole, ernment the taken as a must ap- prove interest, is offensive in to the peals patently light prurient artistic, of standards, and lacks serious community literary, Id., CPPA, or value. at The how- scientific 24. political, ever, extends to a minor en- images appear depict without to the gaging sexually explicit activity regard Miller need not The materials to the requirements. appeal interest. of ac- prurient Any depiction sexually explicit no The matter how it is is tivity, presented, proscribed. as CPPA to a in a well manual, applies picture psychology aas movie the of sexual abuse. It is not horrors depicting moreover, the offensive. necessary, image patently Pictures of what to be sexu- 17-year-olds engaging appear do not in contravene com- ally case explicit activity every standards. munity its CPPA serious prohibits speech despite literary,
artistic, or scientific value. The statute political, proscribes the visual of an idea —that of depiction teenagers engaging in sexual is a fact of modern and has activity society —that been a theme in art and literature throughout ages. CPPA, are so Under as the prohibited long to be under 18 of 18 U. S. C. persons appear years age. §2256(1). This is than the higher legal age marriage States, well as at which con- many age persons may 2243(a) sent to § sexual relations. See of consent in the (age federal maritime and 16); territorial is U. S. Na- jurisdiction (R. tional of State Laws ed., Survey 384-388 Leiter 3d ed. (48 1999) States with permit 16-year-olds marry parental & N. Hunter, consent); W. and Eskridge Gender, Sexuality, (1997) (in the Law 1021-1022 and States the District Columbia, of is, of consent is It age younger). course, undeniable that some in sexual ac- youths engage before the either own on their inclination tivity legal age, or because are victims of sexual abuse. they
Both sexual sexual teenage activity themes — abuse children —have countless works. literary inspired William created the most famous of teen- Shakespeare pair lovers, one of whom Romeo age just age. years (“She Juliet, act sc. I, 2,1. 9 hath not seen the change In drama, fourteen years”). Shakespeare portrays *12 innocent, and but not relationship something splendid The work has no less than 40 juvenile. motion inspired of which the some pictures, consum- suggest teenagers g., E. Romeo and Juliet (B. mated their Luhr- relationship. 1996). director, mann not have written Shakespeare may scenes the Elizabethan but sexually explicit audience, were modern directors to a less conventional adopt approach, that fact alone would not the conclusion that the work compel was obscene. movies similar themes. Last
Contemporary pursue year’s Awards featured movie, the Academy Traffic, which was nominated for Best Picture. See Predictable and Less So, the Award Academy Contenders, Times, Y. 14, 2001, N. Feb. Ell. The film p. a 16- identified as a portrays teenager, who becomes year-old, addicted to The viewer sees drugs. addiction, of her degradation which the end leads her year drugs. before, filthy to a room to trade sex for Beauty Academy Award for Best Picture. American won the Beauty” Tops Oscars, Times, Y. Mar. “American N. teenage girl p. a movie, In the course of the 27, 2000, El. boyfriend, teenage and engages in with her sexual relations middle-aged yields gratification to the another herself although where, The film also contains a scene man. taking place, one is movie the act audience understands watching teenage boy performing believes he is character a sexual act on an older man. empathy enduring society, cultures, has
Our like other young. of the Art fascination with lives and destinies all have in the express and literature the vital interest we years wounds can knew, we ourselves once when formative grievous, disappointment profound, mistaken so be so tragic, but acts and self-fulfillment choices so when moral not the films we mention are still in reach. Whether or they explore themes within the wide CPPA, violate the sweep prohibitions. If these or hun- films, of the statute’s subjects, explore dreds of others of lesser note that those activity single graphic depiction of sexual within contain a statutory possessor definition, film would be of the subject punishment inquiry into severe without the work’s redeeming with an essential value. This inconsistent First of a work does not Amendment rule: The artistic merit depend presence single explicit on the of a See Book scene. Named Pleasure” “John Cleland’s Memoirs a Woman (1966) Attorney Mass., 413, General 383 U. S. (“[T]he (plurality opinion) nei- value of the book can social by prurient appeal weighed against ther be its nor canceled offensiveness”). patent Amend- Miller, Under First requires redeeming judged ment value be consider- *13 ing part of the work as a Where the scene is whole. become narrative, the work itself not for this reason does might though be offen- obscene, even the scene in isolation (1972) (per Wisconsin, 229, sive. Kois v. S. See U. curiam). have reason, noted, and the others we For prohibit obscenity, cannot be read to because it CPPA required prohibitions link between its and the lacks community prohibited affront to standards the definition obscenity. deficiency by The seeks to address this Government ar- guing speech prohibited by virtually indis- CPPA tinguishable pornography, may from child which be banned regard depicts without to works of value. whether See Ferber, S., at New York v. 458 U. 761. Where the product are abuse, themselves the of child sexual Ferber recognized stamping that the had an interest in it out State regard any judgment Id., to at without about its content. (“As concurring) id., at 775 761, 12; n. see also (O’Connor, J., suppress attempt drafted, New York’s does not statute ideas”). particular production the communication of target not of the work, content, its was the statute. The literary, artistic, fact that a work contained serious or other partici- value did excuse the harm it caused to its child pants. simply equate community’s It was “unrealistic a sexually permis- oriented materials with the toleration for scope legislation protecting sible aimed at children from exploitation.” at Id., 761, sexual n. 12. upheld prohibition
Ferber on the distribution and sale pornography, production, of child as well as its because these “intrinsically acts related” to the sexual abuse of chil- were ways. permanent Id., First, at dren two 759. record abuse, of a child’s would harm continued circulation itself participated. defamatory the child who had Like a state- publication ment, each new of the would cause new injury reputation well-being. emotional the child’s id., Second, at n. 10. because the traffic in child production, was an economic motive for its closing had an interest the distribution network. State expeditious only practical “The most if not the method of law dry up enforcement be to the market for this material *14 criminal on ad- severe persons selling, by imposing penalties Id., at or otherwise 760. product.” vertising, promoting in either what the Court rationale, Under had speech effect held link to the crime from which was proximate it came. in
Later,
Ohio,
(1990),
Osborne v.
In contrast to the Ferber, itself is speech speech abuse, record of sexual the CPPA speech prohibits records no crime and creates no victims its production. Virtual child is not related” to the pornography “intrinsically children, sexual abuse of as were the materials in Ferber. S., 458 U. at 759. While the Government asserts can lead to actual instances of abuse, child see infra, at 251-254, the causal link is and indirect. The contingent harm does not follow from the but de- necessarily speech, some pends upon unquantified crim- potential subsequent inal acts.
The Government these indirect says harms are sufficient because, as Ferber acknowledged, pornography rarely can be (“The valuable S., See U. at 762 speech. value live permitting performances photographic repro- ductions of children in lewd sexual conduct engaged modest, minimis”). if de exceedingly This argument, however, suffers from two First, flaws. Ferber’s judg- ment about child was based how it was upon made, what not on it communicated. The case reaffirmed that where the is neither obscene nor the product abuse, sexual it does not fall outside the of the protection id., (“[T]he First Amendment. at 764-765 distribution *15 or other of sexual not descriptions conduct, depictions obscene, otherwise which do not involve live performance or or other visual of live photographic reproduction perform- ances, First retains Amendment protection”).
The second flaw in the Government’s is that position not Ferber did hold that child is definition by pornography without value. theOn the Court contrary, some recognized works in this have value, id., see category might significant at 761, but relied on virtual very images pro- —the hibited an CPPA —as alternative permissible means of it were “[I]f or expression: necessary literary artistic value, a over the who person statutory age perhaps looked could utilized. Simulation younger outside of the prohibition statute could another alternative.” provide Id., Ferber, at 763. then, not to referred distinction between actual and virtual child it relied on pornography, aas reason its Ferber supporting no holding. provides for a statute that eliminates the distinction and support makes the alternative mode criminal as well.
Ill The CPPA, for reasons we have is inconsistent explored, with Miller and finds no Ferber. The support Govern ment seeks its to ar other It justify prohibitions ways. that is gues CPPA because necessary pedophiles may use virtual child to seduce children. There are many innocent themselves, however, such things cartoons, video be used for games, candy, might immoral we would not those purposes, yet to be expect prohibited because can be The they Government, misused. course, adults who may punish unsuitable mate provide 252 Ginsberg York, New 390 U.
rials to v. S. children, see for unlawful criminal and it enforce (1968), penalties establish, however, solicitation. precedents com not be silenced within the of adults to hear may rights See Sable children from it. an shield pletely attempt FCC, Cal., (1989). Inc. Communications of v. 492 U. S. Michigan, Butler v. 380, (1957), Court In 352 U. S. n invalidated a statute prohibiting of an indecent distribution “ vio to ‘incite minors to of its because tendency publication A unanimous Court lent or immoral acts.’” depraved First Amendment principle agreed upon important could “reduce the adult ... State population Id., have what fit for at 383. We children.” reading only Playboy En States See United reaffirmed holding. Group, Inc., tertainment (2000) (“[T]he 529 U. S. children does not suffice support objective shielding *16 a less blanket ban if the can be by accomplished protection Liberties Reno American Civil alternative”); restrictive v. Union, 521 (The S., interest in at 875 “governmental pro U. harmful materials does not justify children from ... tecting to an of addressed broad unnecessarily suppression speech supra, FCC, Sable Communications v. adults”); at 130-131 down a ban on that had “the (striking “dial-a-porn” messages con invalid effect of the content of adult limiting telephone hear”). to versations to that which is suitable for children Here, wants to from children the Government keep speech not to them to from its content but them protect protect The from those who would commit other crimes. principle, ban however, cannot remains the same: The Government the hands fit fall into for adults because may speech simply in the of The actor’s children. evil depends upon question unlawful as criminal conduct, conduct defined quite apart from link to This establishes the any speech question. The is not drawn. ban narrowly objective speech well is this restriction conduct, but goes prohibit illegal 253 interest beyond available to restricting speech adults. law-abiding
The submits Government further that virtual child por- whets the of nography appetites pedophiles encourages them to conduct. This rationale cannot engage illegal sustain the mere The of provision question. tendency unlawful acts is not sufficient speech reason encourage for it. The “cannot banning government constitutionally on legislation premise desirability controlling per- Georgia, Stanley son’s private 557, v. U. S. thoughts.” (1969). First Amendment are freedoms most in danger when the seeks to control or to government thought justify its laws for that end. The to think is impermissible right freedom, and must from beginning speech protected because is the government speech beginning thought.
To
freedoms, and
these
preserve
protect
for
speech
its own sake, the
First Amendment cases
Court’s
draw vital
distinctions
words
between
between
deeds,
ideas and
Kingsley
Corp.,
Int’l
Pictures
conduct.
S.,
360 U.
at
Vopper,
also Bartnicki 689; see
(2001)
U. S.
(“The normal method of
unlawful conduct
is to
deterring
an
impose
on
who
appropriate punishment
en-
person
it”).
government
gages
prohibit
speech
because it increases the chance an
will
unlawful act
be com-
mitted “at some indefinite future time.” Hess v. Indiana,
curiam).
(1973) (per
The Government next that its of elimi- nating produced pornography using the market for real prohibition images children necessitates on virtual well. images, Virtual the contends, Government are indistin- guishable they part ones; from real are the same market exchanged. way, In are often it is virtual im- said, ages promote trafficking produced through the in works the exploitation hypothesis of real children. The is somewhat implausible. images illegal If virtual were identical to pornography, illegal images the would be driven from the by indistinguishable por- market New substitutes. nographers prosecution by abusing would risk real children computerized images if fictional, would suffice.
In by the case of Ferber, the material covered the creation speech of the prohibi- is itself crime of child abuse; by removing tion profit deters the crime motive. See Osborne, 495 S.,U. at 109-110. Even where there an underlying crime, however, the Court has not allowed the suppression speech g., all supra, Bartnicki, cases. E. (market at 529 justify prohibiting deterrence would not law distributing radio commentator from had been unlawfully intercepted). We need not consider where to strike the balance in this case, here, because there is no underlying crime at all. Even if the Government’s market theory persuasive deterrence were in some contexts, justify would not this statute.
Finally, says possibility pro- Government that the ducing by using computer imaging very makes it prosecute difficult for it to produce those who by using Experts, real children. we are told, have dif- ficulty saying pictures whether using were made by using computer real imaging. children or necessary argument prohibit solution, runs, is to both kinds of im- *18 ages. argument, protected speech essence, The is that may unprotected speech. be banned as a means ban to This analysis upside turns the First Amendment down. may suppress speech Government lawful as the suppress speech. speech means to unlawful Protected does unprotected merely not become it because resembles the requires latter. The “[TJhe Constitution the pos- reverse. society permitting sible harm unprotected speech some go unpunished outweighed by possibility is pro- speech may tected of others . be muted . .”. Broadrick Oklahoma, S., at 612. U. The overbreadth doctrine prohibits the banning unprotected speech Government from if protected speech prohibited substantial amount of is process. chilled in the objection,
To avoid the force the Government would have us read the suppressing speech CPPA not as a measure shifting but aas prove law the burden to the accused to speech is lawful. In this connection, the Government relies on an affirmative defense under the which statute, nonpossession allows defendant to avoid conviction for by showing produced using offenses that the materials were only adults and were not otherwise distributed in a manner conveying impression they depicted real children. §2252A(c). See 18 U. S. C.
The Government raises serious constitutional difficulties by seeking impose on the defendant the proving burden of his applies not unlawful. An affirmative defense prosecution begun, speaker after has and the must prove, pain felony himself on of a conviction, that his con- duct falls within the affirmative In defense. cases under evidentiary the CPPA, burden is not trivial. Where the producer defendant is not the work, he no have way establishing identity, or even the existence, of evidentiary the actors. If the problem issue is a serious Government, it asserts, will be at least as difficult *19 moreover, statute, applies The the innocent for possessor. themselves 1996, and the before producers to work created the meet to necessary records the not have preserved lead can to the defense Failure establish burden of proof. a conviction. to felony the whether Government however, decide, need not
We if an affirma- on a Even this burden speaker. could impose chal- First Amendment from tive defense can save a statute insufficient, even here the defense is incomplete lenge, in some be convicted It allows to on its own terms. persons were not children exploited instances where can they prove with possessing, in the A defendant charged production. not de- works may to distributing, proscribed opposed actors. adult that the film fend on the depicts ground defense while the affirmative may protect See ibid. So distribution, for the act movie from producer prosecution in and all other the subsequent that same persons producer, the distribution could be liable chain, prohib- possessing affirmative defense Furthermore, provides ited work. the com- no who by using protection persons produce speech not involve means that do other through puter imaging, ibid. of adult actors who to be minors. See the use appear no children In these can demonstrate cases, the defendant the affirmative were in the harmed images, yet producing the reason, For this defense would not bar prosecution. for it leaves statute, save the affirmative defense cannot not tied to the amount of a substantial speech unprotected interest in produced Government’s distinguishing real children from virtual ones. using §2256(8)(B) sum, In materials covers beyond catego- Miller, ries in and the reasons Ferber recognized the freedom Government offers in of limiting support have or in the law no our precedents justification of the the free- First Amendment. The provision abridges dom to of lawful a substantial amount speech. engage reason, For this it is overbroad and unconstitutional.
IV §2256(8)(D) as well. This Respondents challenge provi- bans sion depictions conduct that sexually explicit are “advertised, described, or promoted, distributed presented, in such a manner mate- conveys impression rial is or contains visual of a minor depiction engaging conduct.” treat sexually the section as explicit parties identical to the nearly materials provision prohibiting In view, the Government’s appear pornography. difference between the two is that “the the im- 'conveys provision assess the material pression’ requires jury at issue of the manner in which it is light promoted.” *20 Brief for Petitioners n. The 18, 3. Government’s assump- tion, that however, is the determination would still depend the content the upon work. principally prohibited We with this view. The disagree CPPA prohibits sexually materials that explicit “conve[y] impression” they depict minors. While that sound like the phrase may “appears be” in §2256(8)(B), it little prohibition requires judgment about the content of the §2256(8)(D), Under image. work must be but otherwise explicit, the content sexually is if irrelevant. Even a film contains no sexually explicit scenes minors, it could be treated as involving child por- if the title and trailers nography convey impression the scenes would be found the movie. The determina- tion turns on how the is is on what speech presented, While the at depicted. address legislative findings length materials that problems look like posed by child pornog- are silent on the evils raphy, they posed by images simply pandered way.
The Government does not a offer serious defense of this and the other it makes in provision, arguments support §2256(8)(D). do CPPA not bear on The materials, for instance, are not to be confused likely pornog- in a criminal trial. The Court has raphy recognized be relevant, an pandering may matter, evidentiary question particular whether materials are obscene. See (1966) (“[I]n Ginzburg 463, 474 States, v. United 383 U. S. pandering may probative close with re- cases evidence of be spect question to the nature of the material in and thus test”). satisfy [obscenity] engages a defendant Where exploitation solely in the for the “commercial of erotica prurient appeal,” sake of id., their at the context he or she creates itself be relevant to the evaluation of the materials. 2256(8)(D), prohibits however,
Section a substantial Ginzburg’s amount of that falls outside rationale. falling proscription Materials within the are tainted and though unlawful in they it, the hands of all who receive bear responsibility no for how it was or marketed, sold, described. require statute, furthermore, does not that the context part of an exploitation.” effort at “commercial Ibid. As consequence, a prohibit the CPPA does more than pandering. prohibits possession It pandered, material described, pornography by as child someone earlier in the distribu- provision tion prohibits sexually chain. The explicit film containing youthful just no placed actors, because it is in a suggesting prohibited box movie. Possession is a crime possessor even when the knows the movie was mislabeled. requires precise The First Amendment a more restriction. §2256(8)(D) For substantially reason, overbroad *21 in violation of the First Amendment.
V For the prohibitions reasons we have forth, set the §§2256(8)(B) 2256(8)(D) and are overbroad and unconstitu- Having tional. conclusion, reached this we need not ad- respondents’ dress provisions further contention that the are vague statutory unconstitutional language. because of judgment Appeals of the Court is affirmed.
It is so ordered. in Thomas, Justice concurring judgment.
In view, the Government’s most asserted my persuasive interest of the Child Prevention support Act Pornography seq., et (CPPA), of 1996 §2251 U. S. C. is the prosecution rationale —that who persons disseminate possess porno- of real children graphic images conviction may escape are claiming images computer generated, thereby a doubt reasonable their See Brief for raising guilt. time, however, Petitioners 37. At this the Government as- that defendants raise such defenses, not serts that they have done so In fact, the Government successfully. points to no in which case a defendant been has based on acquitted id., a defense. at “computer-generated 37-38, images” 8.n. While this interest cannot speculative support broad reach the CPPA, evolve technology may where point enforce actual child impossible becomes laws because the Government pornography cannot prove that certain are of real children. In pornographic occurs, the event should not Government be fore- from closed of virtual child enacting regulation pornogra- that contains an phy affirmative defense some appropriate other drawn restriction. narrowly
The Court that the Government’s suggests interest en- real child prohibitions forcing against cannot pornography on virtual child justify prohibitions because pornography, “[t]his turns the First Amendment analysis down. upside The Government may lawful as the suppress Ante, means to unlawful suppress at speech.” 255. But if advances thwart technological prosecution “unlawful the Government well speech,” have a in- compelling terest or otherwise some barring narrow cate- regulating of “lawful gory order to speech” enforce laws effectively made against abuse of chil- through real dren. The Court does leave that more open possibility affirmative defense could complete save a statute’s con- ante, see at stitutionality, implicitly some accepting *22 be constitu- child virtual might pornography regulation a more however, whether tional. I would not prejudge, to narrowly defense is only way affirmative complete and statute that possession tailor a criminal prohibits Thus, I concur child virtual pornography. dissemination of of the Court. in the judgment and The Justice with whom Chief O’Connor,
Justice in the II, to Part judg- concurring Justice Scalia join in in ment dissenting part. part (CPPA), 18 Act of 1996 Prevention The Child Pornography seq., §2251 et “knowin[g]” reproduc- Ú. S. C. proscribes or tion, distribution, sale, images reception, possession definition of that fall under statute’s pornography, §2252A(a). to 5 is years Possession punishable by up § other offense, 2252A(b), first and all transgres- for a prison a first for to 15 sions are years prison punishable by up 2252A(a). defines child § The CPPA offense, conduct” include visual ... sexually explicit “any depiction appears be, of a minor is, “such or where visual depiction 2256(8)(B) § conduct,” engaging (emphasis sexually explicit advertised, is added), or “such visual promoted, depiction in such a manner described, or distributed presented, conveys impression the material is or contains con- visual of a minor depiction engaging sexually explicit added). §2256(8)(D) duct,” The statute defines (emphasis sex- conduct” as “actual or simulated — ... “sexually explicit masturbation; ual . . . . . . intercourse bestiality; exhibition of abuse; sadistic or masochistic or . . . lascivious 2256(2). § or area of genitals any person.” pubic First, for two affirmative defenses. CPPA provides if the defendant pos- defendant liable possession de- than three sesses less images promptly proscribed the matter to law enforcement. such stroys reports images 2252A(d). the remain- § defendant is not liable for Second, a 2252A(a) were §in if the involved acts ing proscribed *23 adult produced are not using only subjects presented such a manner as to contain “convey impression” they of minors depictions conduct. engaging sexually explicit §2252A(c).
This involves a facial litigation to CPPA’s challenge of be prohibitions that to . pornographic images . . “appea[r] of a minor” and of material that “conveys impression” that it contains of minors. IWhile pornographic images with the Court’s that agree the First Amendment judgment that the latter requires struck I prohibition down, with its decision disagree to strike down the former prohi- bition in its The to be of ... a minor” entirety. “appears 2256(8)(B) §in two language covers of categories speech: por- of adults nographic images that look like children (“youthful adult of pornography”) children pornographic created on a wholly without chil- actual computer, using any (“virtual dren child concludes, The Court pornography”). that correctly, the CPPA’s ban on adult youthful pornogra- is view, In however, overbroad. phy fail to my respondents sufficient evidence to present demonstrate that the ban on virtual child is overbroad. Because invalida- pornography tion due to overbreadth is medicine,” such Broadrick “strong v. Oklahoma, 601, 413 U. S. 613 (1973), I would strike down prohibition . that be” mi- pornography “appears nors insofar as it is only the class applied youthful adult pornography.
I assert that the CPPA’s Respondents prohibitions youth- ful adult virtual child pornography, and mate- pornography, rial that that it “conveys contains actual impression” are overbroad, are pornography prohibitions content-based tailored to regulations serve a narrowly interest, compelling Government and that the prohibitions are unconstitutionally Government not vague. dis- with these contentions, agrees specific but also requests exclude adult and virtual child Court youthful pornogra- from the of the First Amendment. phy protection I with the decision not to Court’s agree grant request. Because the Government may already prohibit obscenity Amendment, without the First see Miller v. Cali- violating what (1973), U. S. the Government asks fornia, this Court rule also adult prohibit youthful and virtual child that is indecent with- merely pornography out that Amendment. such violating Although *24 Ferber, looks like the material at issue New York v. (1982), U. S. 747 no children are harmed process Id., such at creating Therefore, 759. Ferber pornography. does not the Government’s ban on adult support youthful ante, virtual child See at 249-251. The pornography. that, Government even if the of such argues production por- does not harm children, this material aids nography directly ante, and abets child abuse. See at 251-254. The Court concludes that the causal connection correctly between por- that to nographic include minors and actual images “appear” child is abuse First strong enough justify withdrawing Amendment for such ante, at protection See 250. speech.
I also with the Court’s decision to strike down agree CPPA’s ban on material in a manner that presented “conveys that it contains impression” pornographic depictions (“actual actual children child 18 U. S. C. pornography”). 2256(8)(D). § The Government fails to how this ban explain serves state interest. covered any compelling Any speech 2256(8)(D) § obscene, that is actual child pornography, otherwise indecent is other federal statutes. prohibited by (B) (actual §§1460-1466 See 2256(8)(A), child (obscenity), 2256(8)(B) adult and virtual child pornography), (youthful §2256(8)(D) The Court concludes that pornography). overbroad, but its also me that reasoning persuades is not provision ante, tailored. See at 257-258. narrowly therefore fails strict United States provision scrutiny. Playboy Group, Inc., Entertainment 529 U. S. (2000). I with the Court CPPA’s ban on
Finally, agree adult is overbroad. The Court youthful pornography pro- vides several that, movies examples although possessing serious artistic, or value and literary, political employing adult conduct, actors to simulated sexual fall perform under the CPPA’s on proscription “appea[r] ... of a conduct,” minor engaging sexually explicit ante, 2256(8)(B). § U. S. C. at 247-248 Romeo and (citing Juliet, Traffic, and American Individuals or busi- Beauty). nesses found to three such films have no possess defense just 2252A(d). criminal § under the CPPA. liability
II I with the Court, however, that the disagree CPPA’s prohi- bition of virtual is overbroad. Before I pornography issue, reach that there are two questions: preliminary whether the ban on virtual child fails strict and whether scrutiny ban is unconstitutionally vague. I would answer both the negative.
The Court has that the Government long has recognized interest our Nation’s children. See compelling protecting supra, Ferber, eases). at 756-757 This interest is (citing efforts by directed sexual promoted offenders and against actual child efforts, turn, These are pornography. sup- the CPPA’s ban on child ported by virtual pornography. Such whet the molesters, 121,110 § images appetites 3009-26, Stat. (4), (10)(B), Congressional Findings notes fol- 18 U. C. §2251, S. who use the lowing to seduce images id., (3). children, Of even more young Finding serious con- cern is prospect for defendants indicted the produc- tion, distribution, or of actual child possession evade máy that the attributed to liability claiming images Id., them are in (6)(A). fact computer generated. Finding be correct that no has Respondents may defendant success- 264 g., Fox, e. United States v. See, this tactic.
fully employed
Vig,
United States
(CA5
265 id., molesters). (12). (5), See also Findings Finally, to the extent that the to be . . . of” is am phrase “appears the avoids biguous, constitutional narrowing interpretation such as overbreadth and lack of narrow problems tailoring. Benson, See Crowell v. (1932). 22, 285 U. S. the statute
Reading bar that are only images virtually from actual would children assure indistinguishable the ban on virtual child is tai- pornography narrowly lored, but also would fears that assuage any “appears to be ... of a minor” is The narrow read- language vague. limits risks from enforce- ing greatly any “‘discriminatory ” Union, Reno v. American Civil Liberties ment.’ S.U. (1997). maintain that Respondents “virtually from” is also because it indistinguishable language vague from whose is question: This begs perspective? problem This has Court never “mathematical exaggerated. required “ ” ‘meticulous from the certainty” specificity’ language Grayned City a statute. Rockford, 104, 110 408 U. S. (1972).
The Court concludes that the CPPA’s ban on virtual child overbroad. basis for this is un holding clear. a content-based serve Although regulation may interest, state and as tailored compelling narrowly pos sible while that interest, substantially serving regulation ensnare that has may unintentionally serious literary, artistic, or scientific value or that does not threaten political, the harms to be combated If Government. sought so, on litigants may its face as over- challenge regulation broad, but in so bear the burden of dem doing they heavy forbids a amount onstrating substantial regulation supra, Reno, valuable or harmless at speech. J., concurring judgment part dissenting (O’Connor, Broadrick, 615). S., 413 U. at part) (citing Respondents have not made such a demonstration. Respondents provide no of films or other materials examples that are com wholly puter generated contain be ... “appea[r] *27 266 seri- conduct, in indecent but that have
of minors” engaging Their overbreadth ous value or do not facilitate child abuse. fails. therefore challenge
Ill adult view the ban on CPPA’s youthful Although my Amendment, First to violate the pornography appears It is ban on virtual child does not. true that both bans are authorized the same text: statute’s definition of to include child pornography depictions 18 to be” of children poses. “appea[r] sexually explicit 2256(8)(B). § due to over- U. S. C. a statute Invalidating breadth, an extreme that should be however, is one remedy, Broadrick, as a last resort.” employed “sparingly only at 613. We have not the usual supra, observed that is “[i]t nor do we consider it . . . desir- judicial practice, generally able, to to an overbreadth issue proceed unnecessarily.” Fox, Board Trustees State Univ. N. Y. v. U. S. (1989). 469, 484-485 caution, I would strike to be”
Heeding “appears insofar as it the subset of is cases provision only applied adult This involving youthful pornography. approach Grace, United States similar to that taken U. S. 171 (1983), which considered of a federal constitutionality statute that makes it unlawful to stand, or move “parade, or in the processions Court assemblages Supreme Building or banner, or to therein grounds, or device any display flag, or into notice designed adapted bring public any party, (1994 ed.). § or movement.” 13k organization, U. S. C. The term Court... “Supreme includes grounds” technically the sidewalks the Court, but because sidewalks surrounding have been considered a forum, the Court traditionally public held the statute unconstitutional when applied sidewalks. 2256(8)(B) § 18 U. S. C. does not be-
Although distinguish tween adult and virtual youthful child pornography, CPPA elsewhere draws a line between these two classes of The statute an
speech. affirmative defense provides who those distribute, receive im- produce, pornographic of individuals are ages adults, who §2252A(c), actually but not for those with that are pornographic images com- wholly This is not puter generated. that the given surprising legis- *28 lative enacted findings by contain no mention of Congress adult youthful Those focus pornography. findings explicitly on actual child and virtual only child pornography pornogra- See, (“[T]he e. (9), phy. g., § *29 (1974) (“This Levy, 733, 760 has . . ker v. 417 U. S. Court . down repeatedly expressed to strike a statute its reluctance of sit- on its face there were substantial number where validly applied”). might be This case uations which differently. should treated no virtually computer-generated images that are
Other than sexually indistinguishable in ex- engaged from real children plicit as not conduct, the CPPA can be limited so to reach already any unprotected material that was before not “sexually explicit of CPPA. The CPPA’sdefinition conduct” quite regard. explicit It the stat- in this makes clear that only depictions” “visual ute reaches of: including
“[AJctual intercourse, or simulated . . . sexual anal-genital, genital-genital, oral-genital, oral-anal, or opposite persons of or whether the same between bestiality; or sex; masturbation; . . . . . . sadistic . . . gen- of the abuse; lascivious exhibition masochistic or... §2256(2). any person.” itals 18 U. C. pubic area of S. suggest very Court and Justice that this O’Connor graphic depiction definition youthful reaches the of looking engaged suggestive adult in activity, actors presum- sexual ably because the definition extends to “simulated” inter- (majority opinion); Ante, course. at 247-248 at ante, (opinion concurring judgment part in dissenting part). Read as a whole, I however, think the definition reaches the sort of “hard core of pornography” protection that we found supra, Ferber, without at 773- construed, 774. So depictions CPPA bans visual youthful looking engaged adult actors in actual sexual activ- ity; suggestions mere activity, of sexual youthful such as looking squirming adult actors under are blanket, more descriptions akin to depictions, written than visual and thus purview fall outside the of the statute.1 part The reference to “simulated” has been defini- “sexually explicit tion of conduct” since the statute was first passed. Against Exploi- Protection Children Sexual Act of tation Pub. L. Stat. 7. But the inclu- 95-225,92 alongside sion conduct, of “simulated” “actual” conduct, does change the “hard core” nature of image banned. The simply brings reference to “simulated” conduct within the depictions statute’s reach of hardcore that are genuine,” “made to Collegiate look Webster’s Ninth New Dictionary (1983) including target the main of the — computer-generated CPPA, virtually indistinguish- from able engaged sexually explicit real children conduct. Neither actual conduct, conduct nor simulated however, is properly depictions construed to reach such as those in a film portrayal ante, (majority Juliet, Romeo at 247-248 *30 opinion); ante, concurring judgment at J., in (O’Connor, 263
1 course, Of of youthful even the narrow class images adult looking pro hibited under the to subject CPPA an affirmative long defense so materials such are not containing images advertised or promoted as child §2252A(c). 18 U. S. pornography. C. 270 removed from in which are far
in part), part dissenting in- the hardcore depictions Congress pornographic to reach. tended to a statute as ban- be loath construe
Indeed, we should without film of Shakespearian tragedies, ning portrayals such text or some indication —from legislative history —that in- fact, In a result was intended. Congress explicitly of the would wholly structed that such a CPPA reading for the First Circuit As unwarranted. the Court Appeals has observed: makes record, which plain
“[T]he legislative a class of was to narrow intended target [CPPA] ‘which are indistin- virtually depictions —visual from unretouched viewers guishable unsuspecting in identical actual children engaging photographs Hilton, States v. sexual conduct.’” United 167 F. 3d (1999) I, 104-358, 61, No. Rep. S. pt. p. (quoting (1996)). in the observed his dissent similarly
Judge Ferguson this case: Court Appeals
“From clear becomes reading legislative history, extends CPPA existing prohibi- merely tions on ‘real’ class of child a narrow pornography for real mistaken computer-generated pictures easily Speech Free Coalition of real children.” photographs Reno, 1999). (CA9 v. F. 3d (“[The 104-358, IV(C), See also S. No. at 21 CPPA] Rep. pt. not, does to, and is not intended a depiction apply adults con- sexually explicit i[n] produced using engaging duct, individual to be even where depicted may appear id., (“[The I, minor” at 7 CPPA] (emphasis original)); pt. addresses kiddie We of ‘high-tech porn’”). problem have to limit looked to scope legislative history States United statutes past,
271 Video, Inc., X-Citement 513 S. 64, (1994), U. 73-77 and we should do so here as well.2
This narrow conduct” not reading “sexually explicit only accords with the text of the CPPA and the intentions of Con- it is how the was gress; exactly phrase understood prior Indeed, Court broadening had gloss gives today. conduct” been “sexually explicit to reach the sort of thought material the Court it does, then films such says as Traffic and American would not have Beauty been made the way Ante, were. at 247-248 they these films’ (discussing por- trayals adult actors youthful looking engaged sexually conduct). Traffic won its suggestive Award in Academy 2001. American won its Award in 2000. Beauty Academy But the CPPA has enforced, been on the and has books, been Court, ante, since (“[F]ew 1996. chill felt at 244 by movie legitimate . . would producers . risk im- distributing in or near the ages uncertain reach of this law”), has appar- never been felt those who ently make movies. actually To the extent the CPPA or distribu- prohibits possession tion of materials that aof child en- “convey impression” conduct, that gaged sexually can and explicit prohibition should be limited to reach “the sordid business of pandering” which lies outside the bounds of First Amendment protec- Ginzburg States, United tion. v. (1966); 463, 383 U. S. g., id., e. (conduct at 472 “deliberately emphasized of the sexually work, in to catch order provocative aspects lose First salaciously disposed,” Amendment protec- Playboy tion); United Group, Inc., States Entertainment (2000) 803, U. S. (collect- 831-832 J., dissenting) (Scalia, cases). This is how the ing Government asks us to construe the statute, Brief for 3; Petitioners and n. ofTr. Oral Arg. 27, and it is the most of the which plausible text, reading promoted, presented, “advertised, materials prohibits or described, distributed in such a manner conveys join Justice Scalia paragraph does discussing the statute’s legislative record. visual material contains depiction that the
impression *32 in conduct.” minor sexually explicit of a engaging added). 2256(8)(B) § U. S. C. (emphasis the shopowner video First Amendment protect The as “entertaining” material film who or distributor promotes the material contains of whether or “acclaimed” regardless in nonob- adult actors engaged depictions youthful looking Amend The First conduct. but scene sexually suggestive Thus, mate the not, however, ment does protect panderer. depict the they as impression rials conveying promoted conduct do in minors explicit actual sexually engaged First warrant because they might regulation merely escape in manner. if a different Amendment protection promoted Ohio, cf. Jacobellis 474-476; at See Ginzburg, supra, (1964) (“In 184, 201 (Warren, J.,C. dissenting) my opin U. S. are to which materials just the use various ion, put —not be considered in themselves —must the words and pictures obscene”). materials are whether or not the determining to limited I would construe “conveys impression” with which makes statute consistent entirely panderer, and other cases. Ginzburg well
The Court says “conveys impression” goes of material to [the] Ginzburg beyond possession “prohibi[tj as child someone described, pandered, Ante, in at earlier the distribution chain.” 258. an Court’s is that individual who concern merely possesses (such materials as videoeassettes Traffic or protected American offend CPPA Beauty) might regardless whether the individual intended materi- actually possess Ante, 248; als also at see images. containing unprotected ante, in J., at concurring part judgment (O’Connor, (“Individuals or businesses found part) dissenting lia- three such films have no defense to criminal possess just CPPA”). under the bility there one, is,
This concern is but again, legitimate In no need or reason to the statute way. construe supra, provision Video, X-Citement we faced a of the Protec- Against Exploitation tion of Children Sexual Act of precursor CPPA, to the which lent itself much less than the. present attributing “knowingly” requirement statute to possessed depictions. the contents of the visual We held requirement applied, such a nonetheless so that the Gov- prove person ernment would charged have to that a with possessing pornography actually knew that the materi- depictions als contained engaged of real sexually minors explicit light S., conduct. 513 at U. 77-78. In of this hold- ing, and consistent with the narrow class of the CPPA prohibit, is intended to the CPPA can pro- be construed to knowing possession hibit actually of materials con- taining depictions engaged visual sexually of real minors *33 explicit computer-generated conduct, or images virtually in- distinguishable engaged sexually from real explicit minors possession containing only The mere conduct. of materials suggestive depictions youthful looking adult actors need not be so included. potentially impermissible sum,
In while applications of they CPPA I exist, doubt that would be “substantial ... plainly relation to the legitimate statute’s sweep.” Broadrick, S., 413 U. at 615. The ensuring aim of the en- forceability pornography of our Nation’s child laws is a com- pelling targeted one. The extending CPPA this aim the definition of child computer- to reach generated images virtually that are indistinguishable from engaged sexually real explicit children conduct. The statute any need not be read precisely to do more than this, which is not offensive to First Amendment.
For these I reasons, would construe CPPA a in manner consistent with the Amendment, First reverse the Court Appeals’ judgment, uphold entirety. the statute in its notes U. S. C. Findings, following Congressional child that does not By pornography depict prohibiting Ferber, an the statute New York child, actual goes beyond (1982), child 458 U. S. which pornography distinguished from of the State’s other because sexually explicit speech in interest the children pro- protecting exploited id., rule, duction at 758. As a process. general por- obscene, Ferber, can if under be banned but nography minors can be whether pornography showing proscribed or not the are obscene under the definition set forth images (1973). in Miller v. 413 U. Ferber S. California, recog- standard, nized that Miller like all definitions “[t]he general obscene, of what be banned as does not reflect may State’s and more interest particular compelling prosecut- those who the sexual of children.” ing promote exploitation S., 458 U. at 761. While we not had have occasion to consider the question, we assume that apparent age persons engaged in sexual conduct is relevant to whether a offends depiction standards. Pictures of children community young engaged in certain acts be obscene where similar might depictions adults, or even older would perhaps adolescents, not. The CPPA, however, is not directed at is obscene; speech has those Congress materials proscribed through separate §§ statute. 18 U. Ferber, S. C. 1460-1466. Like the law seeks CPPA to reach and it makes no beyond obscenity, to conform to the Miller standard. For attempt instance, the statute would reach visual such as movies, depictions, even if have social value. they redeeming resolved, then, is whether principal question the CPPA is constitutional where it proscribes significant universe of that is neither obscene under Miller nor under Ferber. pornography I Before defined child Congress Ferber, at issue in made type depictions using (1994 ed.). actual minors. § U. C. 2252 S. The CPPA re- 2256(8)(A) § tains that at 18 U. S. C. and adds prohibition three other of which the prohibited categories speech, first, §2256(8)(B), and the third, §2256(8)(D), are at issue 2256(8)(B) this case. Section visual prohibits “any depiction, film, video, or or including any photograph, picture, computer or “is, computer-generated image picture,” appears be, of a minor conduct.” The engaging sexually explicit
Notes
(3), notes activity.” § Congressional 2251. Finding following Furthermore, “whet their own sexual pedophiles might ap- with the petites” pornographic images, “thereby increasing the creation and distribution of child and the pornography sexual Id., abuse and of actual children.” Find- exploitation (10)(B). harm (4), rationales, these flows from Under ings of their the content of the from the means pro- images, In addition, duction. another identified Congress problem created Their existence can by computer-generated images: harder make it who do use real prosecute pornographers (6)(A). id., minors. As Finding imaging technology found, it becomes more difficult to improves, Congress prove that a was actual children. particular picture produced using To ensure that defendants child possessing real minors cannot evade ex- using prosecution, Congress tended the ban virtual child pornography. 2256(8)(C) Section common lower more prohibits tech means of virtual known as computer creating images, Rather than morphing. creating original images, pornogra- can alter phers innocent real children so that pictures children sexual appear engaged activity. Although fall within the definition virtual morphed images may the interests chil- of real pornography, they implicate dren and are in in Ferber. sense closer to the do not this do not Respondents we challenge provision, consider it. 2256(8)(B). § do text Respondents challenge Like the to be” “appears provision, sweep provision
notes see also U. S. gressional Findings, following of Health and Services, Human Administration on Dept. Children, Families, Youth and Maltreatment Child 1999 93,000 children were victims of sexual abuse (estimating 1999). also found that the serious Congress surrounding flirt offenders are those who with these and trade impulses and written accounts of sexual with activity pictures young children. valid laws to children from may pass protect Congress g., E. 18 abuse, §§2241, and has. U. S. C. 2251. pros of not laws crime, however, itself does by justify sup pect Kingsley Int’l Pictures See pressing protected speech. Regents Corp. Y., Univ. N. (1959) 684, v. 360 S. 689 U. of of men, the deterrents to be free ordinarily (“Among applied crime are education for violations prevent punishment of the not of free law, of abridgment rights speech” (internal omitted)). marks and citation It is also quotation well established that not be because speech may prohibited See FCC it concerns our v. sensibilities. subjects offending Foundation, (1978) (“[T]he 726, 745 438 U. S. fact Pacifica find a sufficient rea offensive society may speech see also Reno v. American Civil it”); son for suppressing Liberties Union, (1997) (“In 521 844, 874 U. S. evaluating free of adults, we have made it clear speech rights perfectly ‘[sjexual which is indecent but not obscene is expression Sable Com ”) the First Amendment’ protected by (quoting Cal., FCC, munications Inc. v. 115, (1989)); 492 U. S. Carey Population Int'l, Services (1977) 431 U. S. 678, (“[T]he fact that be offensive to some protected speech may does not its justify suppression”). As a the First Amendment bars the general principle, from what we see or read or government dictating speak or hear. The freedom of has limits; its it does not defamation, embrace certain including categories speech, real with incitement, produced obscenity, N. Y. Schuster, Inc. v. Members children. Simon & (1991) (Ken Bd., 502 U. S. State Crime Victims J., While these pro concurring). categories nedy, Amendment, none of the First hibited without violating In his the CPPA. them includes the speech prohibited of the dissent from the Court Appeals, Judge opinion
notes Finding 2251 following to children who are seduced and danger molested with the aid of child sex as pictures when the just great por- or child molester nographer uses visual of child depictions sexual activity or in electronic, produced me- wholly part by chanical, or means, other as when the including computer, material consists of unretouched of ac- photographic images tual children conduct”). in engaging sexually Draw- explicit around, a line and ing ban on just, CPPA’s striking youth- ful adult is consistent with Congress’ of the understanding of categories speech encompassed by §2256(8)(B), but also the CPPA’s of preserves prohibition material that found most to Congress dangerous children. In sum, I would strike down the CPPA’s ban on material that that it contains “conveys impression” actual child but the ban on pornography, uphold pornographic depictions to be” of so minors “appea[r] it is not long applied adult youthful pornography. with whom Justice Chief Justice Rehnquist, Scalia in joins part, dissenting. with Part II agree I con- opinion Justice O’Connor’s in the in curring judgment in part dissenting part. has a Congress interest in compelling ensuring ability enforce prohibitions actual child and we pornography, should defer to its findings rapidly advancing technology soon will make it all but to do so. Turner Broad- impossible casting FCC, Inc. (1997) (we v. System, 180, 520 U. 195 S. “ judgments predictive deference ‘accord substantial ” cases). Congress’ First Amendment serious First agree with Justice I also O’Connor the Government arise were would Amendment concerns posses- simple or prosecute distribution ever to someone value, such as Traffic literary artistic of a with or film sion concurring (opinion Beauty. Ante, at 262-263 or American sepa- dissenting part). I write judgment part Pornography Prevention rately, the Child however, because §2251 (CPPA), seq., need not C. et Act of 1996 U. S. reach such materials. construed to First Amend- normally not strike a statute on do down We limiting has been grounds “when a construction ment placed challenged v. statute.” Broadrick could be on the (1973). g., New York See, e. Oklahoma, 601, 413 U. S. (1982) (appreciating “the wide- Ferber, 458 U. S. face”); reaching striking on its Par- down a statute effects