Supreme Court Strikes Down the Child Pornography Prevention Act

Decision on Children’s Access to Internet Porn Due Later This Spring —
On Tuesday, April 16, the Supreme Court struck down the Child Pornography Protection Act (CPPA) of 1996 in a 6-3 decision. The CPPA is aimed at preventing the distribution of computer-generated images of what appear to be children engaging in sexually explicit conduct.

The CPPA was passed by legislators out of concern that the nation’s pornography laws have not kept pace with advances in computer technology. Once the law was passed, the Free Speech Coalition, a collection of adult film producers, filed suit to challenge it. The CPPA defines sexually explicit conduct in a manner that seemingly makes it clear that the ban is on “hardcore” pornography depicting minors, as pointed out in the dissenting opinion of Chief Justice William Rehnquist. Even though four courts of appeal upheld the CPPA, a majority of Supreme Court justices viewed the law as a clear violation of the First Amendment, as did the Ninth Circuit Court. In the majority’s opinion, the CPPA was too broad in its wording, encompassing forms of speech protected by the First Amendment.

The Court said that the CPPA could ban artistically meritorious works, such as recent films American Beauty and Traffic, both of which suggest a sexual relationship between an adult and a minor but do not show any of the explicit conduct set out in the statute. “The CPPA also prohibits speech having serious redeeming value, proscribing the visual depiction of an idea-that of teenagers engaging in sexual activity-that is a fact of modern society and has been a theme in art and literature for centuries,” wrote Justice Anthony M. Kennedy in the opinion for the majority.

The Court, however, took a step further in defining the type of sexually explicit activity that may be protected by the First Amendment. “The freedom of speech has its limits; it does not embrace…obscenity, and pornography produced with real children.” The CPPA, the Court determined, goes too far: “Pictures of what appear to be 17-year-olds engaging in sexually explicit activity do not in every case contravene community standards.”

The government’s argument that what is prohibited by the CPPA is virtually indistinguishable from child pornography produced using real children is indicative of its well-established interest in protecting children from sexual abuse. The Court pointed out that in its view the content prohibited by the CPPA can be distinguished from a ban on pornography produced using real children. “In contrast to…speech that itself is the record of sexual abuse, the CPPA prohibits speech that records no crime and creates no victims by its production.”

In his dissent Justice Rehnquist, joined by Justice Antonin Scalia, viewed the CPPA more narrowly, to apply only to “hardcore child pornography.” “The CPPA bans visual depictions of youthful-looking adults engaged in actual sexual activity,” not merely suggested sexual activity, wrote the chief justice. The CPPA would not extend to film portrayals of literary works such as Romeo and Juliet, under Justice Rehnquist’s reading of the law in the light of congressional instructions. Justice Rehnquist concluded that “the aim of ensuring the enforceability of our nation’s child pornography laws is a compelling one.…The CPPA is targeted to this aim by extending the definition of child pornography to reach computer-generated images that are virtually indistinguishable from real children engaged in sexually explicit conduct.”

There can be no doubt that the Court’s ruling will make it more difficult to prosecute those who produce and possess child pornography. Despite his disappointment with the decision, however, Attorney General John Ashcroft expressed his firm commitment to develop with Congress “strong measures to fight child pornography that will survive judicial scrutiny.”

The Court will soon decide on another children and pornography case, involving the Child Online Protection Act (COPA). That case addresses the restrictions on children’s access to sexually explicit material on the Internet. Though the Court has not yet ruled in this case, it did give some clear insight on where it may stand in its opinion: “The government cannot ban speech fit for adults simply because it may fall into the hands of children.” Such is the argument against COPA. We await its decision later this spring.

All who support the protection of children can encourage our congressional representatives to stand firm in the fight against child pornography. For more information on how to contact your representative, go to www.congress.org. Let them know that you stand firmly with them in the fight to protect our nation’s children.