Does the Child Pornography Prevention Act of 1996's prohibition of virtual child pornography that appears to depict minors violate the First Amendment's freedom of speech protection?

The Child Pornography Prevention Act of 1996 (CPPA) extended federal prohibition against child pornography to sexually explicit images that appear to depict minors but were produced without using real children. The statute prohibited possessing or distributing virtual child pornography created using adults who look like minors or computer imaging technology. Free Speech Coalition, a California trade association for the adult entertainment industry, challenged the statute along with other respondents including publishers, painters, and photographers. They alleged that the "appears to be" and "conveys the impression" provisions were overbroad and vague, chilling them from producing works protected by the First Amendment. The respondents feared their materials might fall within the CPPA's expanded definition even though no actual minors were used in production. The statute imposed severe penalties including up to 15 years imprisonment for first-time offenders and 5-30 years for repeat offenders.

Free Speech Coalition and other respondents challenged the CPPA in the United States District Court for the Northern District of California. The District Court granted summary judgment to the Government, dismissing the overbreadth claim because it was "highly unlikely" that adaptations of works like Romeo and Juliet would be treated as criminal contraband. The Court of Appeals for the Ninth Circuit reversed, holding that the Government could not prohibit speech because of its tendency to persuade viewers to commit illegal acts. The Ninth Circuit found the CPPA substantially overbroad because it banned materials that were neither obscene nor produced by exploiting real children. Judge Ferguson dissented, arguing that virtual images should be treated as unprotected speech. The Court of Appeals denied rehearing en banc over three judges' dissent. Four other Courts of Appeals had sustained the CPPA. The Supreme Court granted certiorari.

(Kennedy, J.)

Yes. The CPPA's prohibition of virtual child pornography violates the First Amendment because it is substantially overbroad and prohibits protected speech. Virtual child pornography is not intrinsically related to the sexual abuse of children as were the materials in New York v. Ferber, which distinguished child pornography from other sexually explicit speech based on the State's interest in protecting children exploited in the production process. The CPPA goes beyond both Miller v. California's obscenity standard and Ferber's child pornography exception by prohibiting speech that records no crime and creates no victims in its production.

The government's justifications are insufficient to overcome First Amendment protection. The argument that pedophiles might use virtual images to seduce children fails because the government cannot ban speech fit for adults simply because it might fall into the hands of children or be misused by criminals. Butler v. Michigan established that the state cannot reduce the adult population to reading only what is fit for children. The contention that virtual pornography whets pedophiles' appetites and encourages illegal conduct is constitutionally impermissible because the mere tendency of speech to encourage unlawful acts is not sufficient reason for banning it. Brandenburg v. Ohio requires that advocacy be directed to inciting imminent lawless action and likely to produce such action.

The government's market deterrence theory - that virtual images promote trafficking in real child pornography - is implausible because virtual substitutes would likely drive illegal images from the market rather than promote them. The prosecution rationale - that virtual images make it difficult to prosecute those using real children - impermissibly turns the First Amendment upside down by suppressing lawful speech as a means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles illegal material. The statute's affirmative defense is insufficient because it leaves substantial amounts of protected speech undefended, particularly for possession offenses and computer-generated images.

Concurrence (Thomas, J.) The government's most persuasive interest is the prosecution rationale that defendants possessing real child pornography may escape conviction by claiming images are computer-generated. However, the government points to no case where a defendant has been successfully acquitted based on such a defense. While this speculative interest cannot support the CPPA's broad reach, technology may evolve to make enforcement of actual child pornography laws impossible. If this occurs, the government should not be foreclosed from enacting narrowly drawn regulation of virtual child pornography with appropriate affirmative defenses.

Concurrence in Part, Dissent in Part (O'Connor, J.) The CPPA's ban on youthful adult pornography is overbroad as it covers films with serious literary, artistic, or political value like Romeo and Juliet, Traffic, and American Beauty. However, the ban on virtual child pornography is not overbroad. The government has compelling interests in protecting children from molestation and ensuring prosecution of actual child pornography cases as computer technology advances. The "appears to be" language should be interpreted as "virtually indistinguishable from" real children, which would narrow the statute's scope and address constitutional concerns. Respondents failed to provide examples of wholly computer-generated materials with serious value that would be prohibited.

Dissent (Rehnquist, C.J.) The CPPA need not be construed to reach materials with literary or artistic value. The statute's definition of "sexually explicit conduct" should be limited to hardcore pornography, not suggestive sexual activity. Legislative history indicates Congress intended to target only computer-generated images virtually indistinguishable from real children engaged in sexually explicit conduct. The "conveys the impression" provision should be limited to pandering situations consistent with Ginzburg v. United States. A narrowing construction would preserve the statute's core purpose of ensuring enforceability of child pornography laws while avoiding First Amendment problems.