Do the provisions of the Child Pornography Prevention Act of 1996 that prohibit sexually explicit images that appear to depict minors but were produced without using real children, and images pandered in a manner conveying the impression they depict minors, abridge the freedom of speech in violation of the First Amendment?

Congress enacted the Child Pornography Prevention Act of 1996 (CPPA), which extended the federal prohibition on child pornography beyond images made using actual minors. Section 2256(8)(B) banned any visual depiction that "is, or appears to be, of a minor engaging in sexually explicit conduct," regardless of how it was produced, reaching computer-generated images and images using adults who look like minors. Section 2256(8)(D) banned any sexually explicit image advertised, promoted, presented, described, or distributed in a manner that "conveys the impression" it depicts a minor engaging in sexually explicit conduct. Congress found that such images could be used by pedophiles to seduce children, could whet pedophiles' appetites, and could make it harder to prosecute producers who used real children. The statute carried severe penalties, including up to 15 years' imprisonment for a first offense. It applied without regard to whether the material was obscene, appealed to prurient interest, was patently offensive, or had serious literary, artistic, political, or scientific value. Respondents were the Free Speech Coalition, a trade association of the adult-entertainment industry, Bold Type, Inc., a publisher of a book advocating the nudist lifestyle, Jim Gingerich, a painter of nudes, and Ron Raffaelli, a photographer of erotic images. They feared the statute threatened their lawful, protected expression.

Respondents challenged the CPPA in the United States District Court for the Northern District of California, alleging the "appears to be" and "conveys the impression" provisions were overbroad and vague. The District Court granted summary judgment to the Government, finding it highly unlikely that adaptations of works like Romeo and Juliet would be treated as criminal contraband. The Ninth Circuit reversed, holding the CPPA substantially overbroad because it bans materials that are neither obscene nor produced by exploiting real children as in New York v. Ferber. Judge Ferguson dissented. The Ninth Circuit denied rehearing en banc over the dissent of three judges. Four other Courts of Appeals had sustained the statute. The Supreme Court granted certiorari.

(Kennedy, J.)

Yes. Sections 2256(8)(B) and 2256(8)(D) are overbroad and unconstitutional. A statute is facially invalid if it prohibits a substantial amount of protected expression. Broadrick v. Oklahoma, 413 U.S. 601 (1973). The severe criminal penalties heighten the chilling effect, so a facial challenge is appropriate.

The CPPA is not tied to obscenity under Miller v. California, 413 U.S. 15 (1973), because it reaches material that does not appeal to prurient interest, is not patently offensive, and has serious value, including depictions of teenage sexuality in works like Romeo and Juliet, Traffic, and American Beauty. A single explicit scene does not strip a work of its value, which must be judged as a whole.

New York v. Ferber, 458 U.S. 747 (1982), does not support the ban. Ferber upheld a prohibition on child pornography because the materials were a permanent record of actual abuse and because the market drove production of the abuse. Ferber turned on how the images were made, not what they communicate, and it even identified virtual or adult-actor depictions as a permissible alternative. Virtual child pornography records no crime and creates no victims, and its link to abuse is contingent and indirect.

The Government's remaining justifications fail. Speech cannot be banned because pedophiles might use it to seduce children; the Government cannot reduce adults to reading only what is fit for children. Butler v. Michigan, 352 U.S. 380 (1957). A mere tendency of speech to encourage unlawful acts at some indefinite future time is insufficient absent incitement of imminent lawless action. Brandenburg v. Ohio, 395 U.S. 444 (1969). The market-deterrence theory is implausible and has no underlying crime to support it. The argument that virtual images hinder prosecution of real child pornography turns the First Amendment upside down: protected speech may not be banned to suppress unprotected speech. The affirmative defense is incomplete and cannot save the statute, since it does not protect possessors or computer-generated images.

Section 2256(8)(D) is also overbroad. It turns on how material is presented, not its content, and it taints innocent subsequent possessors, even those who know the material was mislabeled, reaching beyond pandering permitted under Ginzburg v. United States, 383 U.S. 463 (1966). The Ninth Circuit's judgment is affirmed.

Concurring in the judgment (Thomas, J.) The Government's most persuasive interest is the prosecution rationale, that defendants possessing real child pornography may claim the images are computer-generated and raise a reasonable doubt. The Government has shown only that defendants raise this defense, not that they have succeeded, so the speculative interest cannot support the CPPA's breadth. If technology advances to the point where actual child pornography laws cannot be enforced, the Government may have a compelling interest in regulating some narrow category of virtual child pornography, possibly through an appropriate affirmative defense or another narrowly drawn restriction. The Court should not prejudge that a more complete affirmative defense is the only permissible approach.

Concurring in the judgment in part and dissenting in part (O'Connor, J., joined as to Part II by Rehnquist, C.J., and Scalia, J.) The ban on material that "conveys the impression" it contains actual child pornography fails strict scrutiny and is overbroad, and the ban on youthful adult pornography is overbroad. The ban on virtual child pornography should be upheld because the Government has a compelling interest in protecting children and in preventing defendants from evading prosecution by claiming images are computer-generated, and Congress need not wait for harm to occur. The majority answered that protected speech may not be banned as a means to ban unprotected speech. "Appears to be . . . of a minor" can be narrowed to mean "virtually indistinguishable from" actual children, which avoids vagueness and ensures narrow tailoring. Respondents failed to show substantial overbreadth as to wholly computer-generated images, so the provision should be struck only as applied to youthful adult pornography, similar to the approach in United States v. Grace.

Dissent (Rehnquist, C.J., joined by Scalia, J., except for the paragraph discussing legislative history) Congress has a compelling interest in ensuring enforcement of actual child pornography prohibitions, and its predictive findings deserve deference. The majority answered that protected speech may not be banned as a means to ban unprotected speech. The CPPA can be construed narrowly to avoid constitutional problems. "Sexually explicit conduct," including "simulated" conduct, reaches only hard-core depictions, such as computer-generated images virtually indistinguishable from real children, not films like Romeo and Juliet, Traffic, or American Beauty. Legislative history confirms Congress targeted "high-tech kiddie porn," and the Court has used legislative history to narrow child pornography statutes before (United States v. X-Citement Video). "Conveys the impression" should be limited to pandering under Ginzburg, with a knowledge requirement for possession. The statute should be upheld in its entirety.