OCTOBER TERM, 2001
Syllabus
ASHCROFT, ATTORNEY GENERAL, ET AL.
v.
FREE SPEECH COALITION ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 00-795. Argued October 30, 200l-Decided April 16, 2002
The Child Pornography Prevention Act of 1996 (CPPA) expands the
federal prohibition on child pornography to include not only
pornographic images made using actual children, 18 U. S. C. §
2256(8)(A), but also "any visual depiction, including any
photograph, film, video, picture, or computer or computer-generated
image or picture," that "is, or appears to be, of a minor engaging
in sexually explicit conduct," § 2256(8)(B), and any sexually
explicit image that is "advertised, promoted, presented, described,
or distributed in such a manner that conveys the impression" it
depicts "a minor engaging in sexually explicit conduct," §
2256(8)(D). Thus, § 2256(8)(B) bans a range of sexually explicit
images, sometimes called "virtual child pornography," that appear
to depict minors but were produced by means other than using real
children, such as through the use of youthful-looking adults or
computer-imaging technology. Section 2256(8)(D) is aimed at
preventing the production or distribution of pornographic material
pandered as child pornography. Fearing that the CPPA threatened
their activities, respondents, an adult-entertainment trade
association and others, filed this suit alleging that the "appears
to be" and "conveys the impression" provisions are overbroad and
vague, chilling production of works protected by the First
Amendment. The District Court disagreed and granted the Government
summary judgment, but the Ninth Circuit reversed. Generally,
pornography can be banned only if it is obscene under
Miller
v.
California, 413 U. S. 15, but
pornography depicting actual children can be proscribed whether or
not the images are obscene because of the State's interest in
protecting the children exploited by the production process,
New
York v.
Ferber, 458 U. S. 747, 758, and
in prosecuting those who promote such sexual exploitation,
id., at 761. The Ninth Circuit held the CPPA invalid on its
face, finding it to be substantially overbroad because it bans
materials that are neither obscene under
Miller nor produced
by the exploitation of real children as in
Ferber.
Held: The prohibitions of § § 2256(8)(B) and 2256(8)(D)
are overbroad and unconstitutional. Pp. 244-258.
(a) Section 2256(8)(B) covers materials beyond the categories
recognized in
Ferber and
Miller, and the reasons the
Government offers in
235
support of limiting the freedom of speech have no justification
in this Court's precedents or First Amendment law. Pp. 244-256.
(1) The CPPA is inconsistent with
Miller. It extends to
images that are not obscene under the
Miller standard, which
requires the Government to prove that the work in question, taken
as a whole, appeals to the prurient interest, is patently offensive
in light of community standards, and lacks serious literary,
artistic, political, or scientific value, 413 U. S., at 24.
Materials need not appeal to the prurient interest under the CPPA,
which proscribes any depiction of sexually explicit activity, no
matter how it is presented. It is not necessary, moreover, that the
image be patently offensive. Pictures of what appear to be
17-year-olds engaging in sexually explicit activity do not in every
case contravene community standards. 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. A number of acclaimed movies, filmed without any
child actors, explore themes within the wide sweep of the statute's
prohibitions. If those movies contain a single graphic depiction of
sexual activity within the statutory definition, their possessor
would be subject to severe punishment without inquiry into the
literary value of the work. This is inconsistent with an essential
First Amendment rule: A work's artistic merit does not depend on
the presence of a single explicit scene. See,
e. g., Book Named
"John Cleland's Memoirs of a Woman of Pleasure" v.
Attorney
General of Mass., 383 U. S. 413, 419. Under
Miller, redeeming value is judged by considering the work as
a whole. Where the scene is part of the narrative, the work itself
does not for this reason become obscene, even though the scene in
isolation might be offensive. See
Kois v.
Wisconsin,
408 U. S. 229,
231
(per curiam). The CPPA cannot be read to prohibit
obscenity, because it lacks the required link between its
prohibitions and the affront to community standards prohibited by
the obscenity definition. Pp. 244-249.
(2) The CPPA finds no support in
Ferber. The Court
rejects the Government's argument that speech prohibited by the
CPPA is virtually indistinguishable from material that may be
banned under
Ferber. That case upheld a prohibition on the
distribution and sale of child pornography, as well as its
production, because these acts were "intrinsically related" to the
sexual abuse of children in two ways. 458 U. S., at 759. First, as
a permanent record of a child's abuse, the continued circulation
itself would harm the child who had participated. See
id.,
at 759, and n. 10. Second, because the traffic in child pornography
was an economic motive for its production, the State had an
interest in closing the distribution network.
Id., at 760.
Under
236
either rationale, the speech had what the Court in effect held
was a proximate link to the crime from which it came. In contrast
to the speech in
Ferber, speech that is itself the record of
sexual abuse, the CPPA prohibits speech that records no crime and
creates no victims by its production. Virtual child pornography is
not "intrinsically related" to the sexual abuse of children. While
the Government asserts that the images can lead to actual instances
of child abuse, the causal link is contingent and indirect. The
harm does not necessarily follow from the speech, but depends upon
some unquantified potential for subsequent criminal acts. The
Government's argument that these indirect harms are sufficient
because, as
Ferber acknowledged, child pornography rarely
can be valuable speech, see
id., at 762, suffers from two
flaws. First,
Ferber's judgment about child pornography was
based upon how it was made, not on what it communicated. The case
reaffirmed that where the speech is neither obscene nor the product
of sexual abuse, it does not fall outside the First Amendment's
protection. See
id., at 764-765. Second,
Ferber did
not hold that child pornography is by definition without value. It
recognized some works in this category might have significant
value, see
id., at 761, but relied on virtual images-the
very images prohibited by the CPPA-as an alternative and
permissible means of expression,
id., at 763. Because
Ferber relied on the distinction between actual and virtual
child pornography as supporting its holding, it provides no support
for a statute that eliminates the distinction and makes the
alternative mode criminal as well. Pp.249-251.
(3) The Court rejects other arguments offered by the Government
to justify the CPPA's prohibitions. The contention that the CPPA is
necessary because pedophiles may use virtual child pornography to
seduce children runs afoul of the principle that speech within the
rights of adults to hear may not be silenced completely in an
attempt to shield children from it. See,
e. g., Sable
Communications of Cal., Inc. v.
FCC, 492 U. S. 115, 130-131.
That the evil in question depends upon the actor's unlawful
conduct, defined as criminal quite apart from any link to the
speech in question, establishes that the speech ban is not narrowly
drawn. The argument that virtual child pornography whets
pedophiles' appetites and encourages them to engage in illegal
conduct is unavailing because the mere tendency of speech to
encourage unlawful acts is not a sufficient reason for banning it,
Stanley v.
Georgia, 394 U. S. 557, 566,
absent some showing of a direct connection between the speech and
imminent illegal conduct, see,
e. g., Brandenburg v.
Ohio, 395 U.
S. 444, 447
(per curiam). The argument that eliminating
the market for pornography produced using real children
necessitates a prohibition on virtual images as well is somewhat
implausible because
237
few pornographers would risk prosecution for abusing real
children if fictional, computerized images would suffice. Moreover,
even if the market deterrence theory were persuasive, the argument
cannot justify the CPPA because, here, there is no underlying crime
at all. Finally, the First Amendment is turned upside down by the
argument that, because it is difficult to distinguish between
images made using real children and those produced by computer
imaging, both kinds of images must be prohibited. The overbreadth
doctrine prohibits the Government from banning unprotected speech
if a substantial amount of protected speech is prohibited or
chilled in the process. See
Broadrick v.
Oklahoma,
413 U. S. 601,
612. The Government's rejoinder that the CPPA should be read not as
a prohibition on speech but as a measure shifting the burden to the
accused to prove the speech is lawful raises serious constitutional
difficulties. The Government misplaces its reliance on § 2252A(c),
which creates an affirmative defense allowing a defendant to avoid
conviction for nonpossession offenses by showing that the materials
were produced using only adults and were not otherwise distributed
in a manner conveying the impression that they depicted real
children. Even if an affirmative defense can save a statute from
First Amendment challenge, here the defense is insufficient because
it does not apply to possession or to images created by computer
imaging, even where the defendant could demonstrate no children
were harmed in producing the images. Thus, the defense leaves
unprotected a substantial amount of speech not tied to the
Government's interest in distinguishing images produced using real
children from virtual ones. Pp.251-256.
(b) Section 2256(8)(D) is also substantially overbroad. The
Court disagrees with the Government's view that the only difference
between that provision and § 2256(8)(B)'s "appears to be" provision
is that § 2256(8)(D) requires the jury to assess the material at
issue in light of the manner in which it is promoted, but that the
determination would still depend principally upon the prohibited
work's content. The "conveys the impression" provision requires
little judgment about the image's content; the work must be
sexually explicit, but otherwise the content is irrelevant. Even if
a film contains no sexually explicit scenes involving minors, it
could be treated as child pornography if the title and trailers
convey the impression that such scenes will be found in the movie.
The determination turns on how the speech is presented, not on what
is depicted. The Government's other arguments in support of the
CPPA do not bear on §2256(8)(D). The materials, for instance, are
not likely to be confused for child pornography in a criminal
trial. Pandering may be relevant, as an evidentiary matter, to the
question whether particular materials are obscene. See
Ginzburg v.
United
238
States, 383
U. S. 463, 474. Where a defendant engages in the "commercial
exploitation" of erotica solely for the sake of prurient appeal,
id., at 466, the context created may be relevant to
evaluating whether the materials are obscene. Section 2256(8)(D),
however, prohibits a substantial amount of speech that falls
outside
Ginzburg's rationale. Proscribed material is tainted
and unlawful in the hands of all who receive it, though they bear
no responsibility for how it was marketed, sold, or described. The
statute, furthermore, does not require that the context be part of
an effort at "commercial exploitation." Thus, the CPPA does more
than prohibit pandering. It bans possession of material pandered as
child pornography by someone earlier in the distribution chain, as
well as a sexually explicit film that contains no youthful actors
but has been packaged to suggest a prohibited movie. Possession is
a crime even when the possessor knows the movie was mislabeled. The
First Amendment requires a more precise restriction. Pp.
257-258.
(c) In light of the foregoing, respondents' contention that §§
2256(8)(B) and 2256(8)(D) are void for vagueness need not be
addressed. P. 258.
198 F.3d
1083, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which
STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J.,
filed an opinion concurring in the judgment,
post, p. 259.
O'CONNOR, J., filed an opinion concurring in the judgment in part
and dissenting in part, in which REHNQUIST, C. J., and SCALIA, J.,
joined as to Part II,
post, p. 260. REHNQUIST, C. J., filed
a dissenting opinion, in which SCALIA, J., joined except for the
paragraph discussing legislative history,
post, p. 267.
Deputy Solicitor General Clement argued the cause for
petitioners. With him on the briefs were Solicitor General Olson,
Acting Solicitor General Underwood, Acting Assistant Attorney
General Schiffer, Deputy Solicitor General Kneedler, Irving L.
Gornstein, Barbara L. Herwig, and Jacob M. Lewis.
H. Louis Sirkin argued the cause for respondents. With
him on the brief were
Laura A. Abrams and
John P.
Feldmeier. *
*Briefs of
amici curiae urging reversal were filed for
the State of New Jersey et al. by
John J. Farmer,
Jr., Attorney General of New Jersey, and
239
JUSTICE KENNEDY delivered the opinion of the Court. We consider
in this case whether the Child Pornography Prevention Act of 1996
(CPPA), 18 U. s. C. § 2251
et seq., abridges the freedom of
speech. The CPP A extends the federal prohibition against child
pornography to sexually explicit images that appear to depict
minors but were produced without using any real children. The
statute prohibits, in specific circumstances, possessing or
distributing these images, which may be created by using adults
who
Patrick DeAlmeida and
Carol Johnston, Deputy
Attorneys General, and by the Attorneys General for their
respective jurisdictions as follows:
Bill Pryor of Alabama,
Bruce M. Botelho of Alaska,
Janet Napolitano of
Arizona,
Mark Pryor of Arkansas,
Ken Salazar of
Colorado,
Richard Blumenthal of Connecticut,
M. Jane
Brady of Delaware,
Robert A. Butterworth of Florida,
Earl I. Anzai of Hawaii,
James E. Ryan of Illinois,
Steve Carter of Indiana,
Thomas J.
Miller of Iowa,
Carla J. Stovall of
Kansas,
J. Joseph Curran, Jr., of Maryland,
Thomas F.
Reilly of Massachusetts,
Jennifer M.
Granholm of Michigan,
Mike Hatch of Minnesota,
Mike
Moore of Mississippi,
Don Stenberg of Nebraska,
Frankie Sue Del Papa of Nevada,
Patricia A. Madrid of
New Mexico,
Roy Cooper of North Carolina,
Wayne
Stenehjem of North Dakota,
Herbert D. Soll of the
Northern Mariana Islands,
Betty D. Montgomery of Ohio,
W
A. Drew Edmondson of Oklahoma,
Hardy Myers of Oregon,
D. Michael Fisher of Pennsylvania,
Sheldon Whitehouse
of Rhode Island,
Charles M. Condon of South Carolina,
John Cornyn of Texas,
Mark L. Shurtleff of Utah,
Mark L. Earley of Virginia,
Christine Q Gregoire of
Washington, and
James E. Doyle of Wisconsin; for the
National Center for Missing & Exploited Children by
Dennis
DeConcini and
Susan M. Kalp; for the National Law Center
for Children and Families et al. by
J. Robert Flores,
Bruce A. Taylor, and
Janet M. LaRue; for the National
Legal Foundation by
Barry C.
Hodge; for Morality in
Media, Inc., by
Robin S.
Whitehead; and for Senator
Sam Brownback et al. by
Jay Alan Sekulow, Stuart J.
Roth, James M. Henderson, Sr., David A. Cortman, Colby M. May,
Walter M. Weber, and
Benjamin W Bull.
Briefs of
amici curiae urging affirmance were filed for
the American Civil Liberties Union et al. by
William Bennett
Turner, Ann E. Beeson, and
Steven R. Shapiro; for the
Association of American Publishers, Inc., et al. by
R. Bruce
Rich, Jonathan Bloom, and
Michael A. Bamberger; and for
the Liberty Project by
Jodie L. Kelley and
Daniel
Mach.
240
look like minors or by using computer imaging. The new
technology, according to Congress, makes it possible to create
realistic images of children who do not exist. See Congressional
Findings, notes following 18 U. S. C. § 2251.
By prohibiting child pornography that does not depict an actual
child, the statute goes beyond
New York v.
Ferber,
458 U. S. 747
(1982), which distinguished child pornography from other sexually
explicit speech because of the State's interest in protecting the
children exploited by the production process. See
id., at
758. As a general rule, pornography can be banned only if obscene,
but under
Ferber, pornography showing minors can be
proscribed whether or not the images are obscene under the
definition set forth in
Miller v.
California,
413 U. S. 15
(1973).
Ferber recognized that "[t]he
Miller
standard, like all general definitions of what may be banned as
obscene, does not reflect the State's particular and more
compelling interest in prosecuting those who promote the sexual
exploitation of children." 458 U. S., at 761.
While we have not had occasion to consider the question, we may
assume that the apparent age of persons engaged in sexual conduct
is relevant to whether a depiction offends community standards.
Pictures of young children engaged in certain acts might be obscene
where similar depictions of adults, or perhaps even older
adolescents, would not. The CPP A, however, is not directed at
speech that is obscene; Congress has proscribed those materials
through a separate statute. 18 U. S. C. §§ 1460-1466. Like the law
in
Ferber, the CPP A seeks to reach beyond obscenity, and it
makes no attempt to conform to the
Miller standard. For
instance, the statute would reach visual depictions, such as
movies, even if they have redeeming social value.
The principal question to be resolved, then, is whether the CPP
A is constitutional where it proscribes a significant universe of
speech that is neither obscene under
Miller nor child
pornography under
Ferber.
241
I
Before 1996, Congress defined child pornography as the type of
depictions at issue in
Ferber, images made using actual
minors. 18 U. S. C. § 2252 (1994 ed.). The CPP A retains that
prohibition at 18 U. S. C. § 2256(8)(A) and adds three other
prohibited categories of speech, of which the first, § 2256(8)(B),
and the third, § 2256(8)(D), are at issue in this case. Section
2256(8)(B) prohibits "any visual depiction, including any
photograph, film, video, picture, or computer or computer-generated
image or picture," that "is, or appears to be, of a minor engaging
in sexually explicit conduct." The prohibition on "any visual
depiction" does not depend at all on how the image is produced. The
section captures a range of depictions, sometimes called "virtual
child pornography," which include computer-generated images, as
well as images produced by more traditional means. For instance,
the literal terms of the statute embrace a Renaissance painting
depicting a scene from classical mythology, a "picture" that
"appears to be, of a minor engaging in sexually explicit conduct."
The statute also prohibits Hollywood movies, filmed without any
child actors, if a jury believes an actor "appears to be" a minor
engaging in "actual or simulated ... sexual intercourse." §
2256(2).
These images do not involve, let alone harm, any children in the
production process; but Congress decided the materials threaten
children in other, less direct, ways. Pedophiles might use the
materials to encourage children to participate in sexual activity.
"[A] child who is reluctant to engage in sexual activity with an
adult, or to pose for sexually explicit photographs, can sometimes
be convinced by viewing depictions of other children 'having fun'
participating in such activity." Congressional Finding (3), notes
following § 2251. Furthermore, pedophiles might "whet their own
sexual appetites" with the pornographic images, "thereby increasing
the creation and distribution of child pornography and the sexual
abuse and exploitation of actual children."
Id., Find-
242
ings (4), (10)(B). Under these rationales, harm flows from the
content of the images, not from the means of their production. In
addition, Congress identified another problem created by
computer-generated images: Their existence can make it harder to
prosecute pornographers who do use real minors. See
id.,
Finding (6)(A). As imaging technology improves, Congress found, it
becomes more difficult to prove that a particular picture was
produced using actual children. To ensure that defendants
possessing child pornography using real minors cannot evade
prosecution, Congress extended the ban to virtual child
pornography.
Section
2256(8)(C) prohibits a more common and lower tech
means of creating virtual images, known as computer morphing.
Rather than creating original images, pornographers can alter
innocent pictures of real children so that the children appear to
be engaged in sexual activity. Although morphed images may fall
within the definition of virtual child pornography, they implicate
the interests of real children and are in that sense closer to the
images in
Ferber. Respondents do not challenge this
provision, and we do not consider it.
Respondents do challenge § 2256(8)(D). Like the text of the
"appears to be" provision, the sweep of this provision is quite
broad. Section 2256(8)(D) defines child pornography to include any
sexually explicit image that was "advertised, promoted, presented,
described, or distributed in such a manner that conveys the
impression" it depicts "a minor engaging in sexually explicit
conduct." One Committee Report identified the provision as directed
at sexually explicit images pandered as child pornography. See S.
Rep. No. 104-358, p. 22 (1996) ("This provision prevents child
pornographers and pedophiles from exploiting prurient interests in
child sexuality and sexual activity through the production or
distribution of pornographic material which is intentionally
pandered as child pornography"). The statute is not so limited in
its reach, however, as it punishes even
243
those possessors who took no part in pandering. Once a work has
been described as child pornography, the taint remains on the
speech in the hands of subsequent possessors, making possession
unlawful even though the content otherwise would not be
objectionable.
Fearing that the CPP A threatened the activities of its members,
respondent Free Speech Coalition and others challenged the statute
in the United States District Court for the Northern District of
California. The Coalition, a California trade association for the
adult-entertainment industry, alleged that its members did not use
minors in their sexually explicit works, but they believed some of
these materials might fall within the CPP A's expanded definition
of child pornography. The other respondents are Bold Type, Inc.,
the publisher of a book advocating the nudist lifestyle; Jim
Gingerich, a painter of nudes; and Ron Raffaelli, a photographer
specializing in erotic images. Respondents alleged that the
"appears to be" and "conveys the impression" provisions are
overbroad and vague, chilling them from producing works protected
by the First Amendment. The District Court disagreed and granted
summary judgment to the Government. The court dismissed the
overbreadth claim because it was "highly unlikely" that any
"adaptations of sexual works like 'Romeo and Juliet,' ... will be
treated as 'criminal contraband.'" App. to Pet. for Cert.
62a-63a.
The Court of Appeals for the Ninth Circuit reversed. See
198 F.3d
1083 (1999). The court reasoned that the Government could not
prohibit speech because of its tendency to persuade viewers to
commit illegal acts. The court held the CPP A to be substantially
overbroad because it bans materials that are neither obscene nor
produced by the exploitation of real children as in
New York
v.
Ferber, 458
U. S. 747 (1982). Judge Ferguson dissented on the ground that
virtual images, like obscenity and real child pornography, should
be treated as a category of speech unprotected by the First
Amendment. 198 F. 3d, at 1097. The Court of Appeals voted to
244
deny the petition for rehearing en banc, over the dissent of
three judges. See
220 F.3d
1113 (2000).
While the Ninth Circuit found the CPP A invalid on its face,
four other Courts of Appeals have sustained it. See
United
States v.
Fox, 248 F.3d
394 (CA5 2001);
United States v.
Mento,
231 F.3d
912 (CA42000);
United States v.
Acheson,
195 F.3d
645 (CAll 1999);
United States v.
Hilton,
167 F.3d
61 (CA1), cert. denied, 528 U. S. 844 (1999). We granted
certiorari. 531 U. S. 1124 (2001).
II
The First Amendment commands, "Congress shall make no law ...
abridging the freedom of speech." The government may violate this
mandate in many ways,
e. g., Rosenberger v.
Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995);
Keller v.
State Bar of Gal., 496 U. S. 1 (1990), but a
law imposing criminal penalties on protected speech is a stark
example of speech suppression. The CPP A's penalties are indeed
severe. A first offender may be imprisoned for 15 years. §
2252A(b)(1). A repeat offender faces a prison sentence of not less
than 5 years and not more than 30 years in prison.
Ibid.
While even minor punishments can chill protected speech, see
Wooley v.
Maynard, 430 U. S. 705 (1977),
this case provides a textbook example of why we permit facial
challenges to statutes that burden expression. With these severe
penalties in force, few legitimate movie producers or book
publishers, or few other speakers in any capacity, would risk
distributing images in or near the uncertain reach of this law. The
Constitution gives significant protection from overbroad laws that
chill speech within the First Amendment's vast and privileged
sphere. Under this principle, the CPP A is unconstitutional on its
face if it prohibits a substantial amount of protected expression.
See
Broadrick v.
Oklahoma, 413 U. S. 601, 612
(1973).
The sexual abuse of a child is a most serious crime and an act
repugnant to the moral instincts of a decent people. In
245
its legislative findings, Congress recognized that there are
subcultures of persons who harbor illicit desires for children and
commit criminal acts to gratify the impulses. See Congressional
Findings, notes following § 2251; see also U. S. Dept. of Health
and Human Services, Administration on Children, Youth and Families,
Child Maltreatment 1999 (estimating that 93,000 children were
victims of sexual abuse in 1999). Congress also found that
surrounding the serious offenders are those who flirt with these
impulses and trade pictures and written accounts of sexual activity
with young children.
Congress may pass valid laws to protect children from abuse, and
it has.
E. g., 18 U. S. C. §§ 2241,2251. The prospect of
crime, however, by itself does not justify laws suppressing
protected speech. See
Kingsley Int'l Pictures Corp. v.
Regents of Univ. of N.
Y., 360 U. S. 684, 689 (1959)
("Among free men, the deterrents ordinarily to be applied to
prevent crime are education and punishment for violations of the
law, not abridgment of the rights of free speech" (internal
quotation marks and citation omitted)). It is also well established
that speech may not be prohibited because it concerns subjects
offending our sensibilities. See
FCC v.
Pacifica
Foundation, 438
U. S. 726, 745 (1978) ("[T]he fact that society may find speech
offensive is not a sufficient reason for suppressing it"); see also
Reno v.
American Civil Liberties Union, 521 U. S. 844, 874 (1997)
("In evaluating the free speech rights of adults, we have made it
perfectly clear that '[s]exual expression which is indecent but not
obscene is protected by the First Amendment''') (quoting
Sable
Communications of Cal., Inc. v.
FCC, 492 U. S. 115, 126
(1989));
Carey v.
Population Services Int'l, 431 U. S. 678, 701 (1977)
("[T]he fact that protected speech may be offensive to some does
not justify its suppression").
As a general principle, the First Amendment bars the government
from dictating what we see or read or speak or hear. The freedom of
speech has its limits; it does not
246
embrace certain categories of speech, including defamation,
incitement, obscenity, and pornography produced with real children.
See
Simon &
Schuster, Inc. v.
Members of
N.
Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991)
(KENNEDY, J., concurring). While these categories may be prohibited
without violating the First Amendment, none of them includes the
speech prohibited by the CPP A. In his dissent from the opinion of
the Court of Appeals, Judge Ferguson recognized this to be the law
and proposed that virtual child pornography should be regarded as
an additional category of unprotected speech. See 198 F. 3d, at
1101. It would be necessary for us to take this step to uphold the
statute.
As we have noted, the CPPA is much more than a supplement to the
existing federal prohibition on obscenity. Under
Miller v.
California, 413
U. S. 15 (1973), the Government must prove that the work, taken
as a whole, appeals to the prurient interest, is patently offensive
in light of community standards, and lacks serious literary,
artistic, political, or scientific value.
Id., at 24. The
CPPA, however, extends to images that appear to depict a minor
engaging in sexually explicit activity without regard to the
Miller requirements. The materials need not appeal to the
prurient interest. Any depiction of sexually explicit activity, no
matter how it is presented, is proscribed. The CPP A applies to a
picture in a psychology manual, as well as a movie depicting the
horrors of sexual abuse. It is not necessary, moreover, that the
image be patently offensive. Pictures of what appear to be
17-year-olds engaging in sexually explicit activity do not in every
case contravene community standards.
The CPP A prohibits speech despite its serious literary,
artistic, political, or scientific value. The statute proscribes
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 throughout the ages.
247
Under the CPPA, images are prohibited so long as the persons
appear to be under 18 years of age. 18 U. S. C. § 2256(1). This is
higher than the legal age for marriage in many States, as well as
the age at which persons may consent to sexual relations. See §
2243(a) (age of consent in the federal maritime and territorial
jurisdiction is 16); U. S. N ational Survey of State Laws 384-388
(R. Leiter ed., 3d ed. 1999) (48 States permit 16-year-olds to
marry with parental consent); W. Eskridge & N. Hunter,
Sexuality, Gender, and the Law 1021-1022 (1997) (in 39 States and
the District of Columbia, the age of consent is 16 or younger). It
is, of course, undeniable that some youths engage in sexual
activity before the legal age, either on their own inclination or
because they are victims of sexual abuse.
Both themes-teenage sexual activity and the sexual abuse of
children-have inspired countless literary works. William
Shakespeare created the most famous pair of teenage lovers, one of
whom is just 13 years of age. See Romeo and Juliet, act I, sc. 2,
1. 9 ("She hath not seen the change of fourteen years"). In the
drama, Shakespeare portrays the relationship as something splendid
and innocent, but not juvenile. The work has inspired no less than
40 motion pictures, some of which suggest that the teenagers
consummated their relationship.
E. g., Romeo and Juliet (B.
Luhrmann director, 1996). Shakespeare may not have written sexually
explicit scenes for the Elizabethan audience, but were modern
directors to adopt a less conventional approach, that fact alone
would not compel the conclusion that the work was obscene.
Contemporary movies pursue similar themes. Last year's Academy
Awards featured the movie, Traffic, which was nominated for Best
Picture. See Predictable and Less So, the Academy Award Contenders,
N. Y. Times, Feb. 14, 2001, p. Ell. The film portrays a teenager,
identified as a 16year-old, who becomes addicted to drugs. The
viewer sees the degradation of her addiction, which in the end
leads her
248
to a filthy room to trade sex for drugs. The year before,
American Beauty won the Academy Award for Best Picture. See
"American Beauty" Tops the Oscars, N. Y. Times, Mar. 27, 2000, p.
El. In the course of the movie, a teenage girl engages in sexual
relations with her teenage boyfriend, and another yields herself to
the gratification of a middle-aged man. The film also contains a
scene where, although the movie audience understands the act is not
taking place, one character believes he is watching a teenage boy
performing a sexual act on an older man.
Our society, like other cultures, has empathy and enduring
fascination with the lives and destinies of the young. Art and
literature express the vital interest we all have in the formative
years we ourselves once knew, when wounds can be so grievous,
disappointment so profound, and mistaken choices so tragic, but
when moral acts and self-fulfillment are still in reach. Whether or
not the films we mention violate the CPP A, they explore themes
within the wide sweep of the statute's prohibitions. If these
films, or hundreds of others of lesser note that explore those
subjects, contain a single graphic depiction of sexual activity
within the statutory definition, the possessor of the film would be
subject to severe punishment without inquiry into the work's
redeeming value. This is inconsistent with an essential First
Amendment rule: The artistic merit of a work does not depend on the
presence of a single explicit scene. See
Book Named "John
Cleland's Memoirs of a Woman of Pleasure" v.
Attorney General of
Mass., 383 U. S.
413, 419 (1966) (plurality opinion) ("[T]he social value of the
book can neither be weighed against nor canceled by its prurient
appeal or patent offensiveness"). Under
Miller, the First
Amendment requires that redeeming value be judged by considering
the work as a whole. Where the scene is part of the narrative, the
work itself does not for this reason become obscene, even though
the scene in isolation might be offensive. See
Kois v.
Wisconsin, 408
U. S. 229, 231 (1972)
(per
249
curiam}. For this reason, and the others we have noted,
the CPP A cannot be read to prohibit obscenity, because it lacks
the required link between its prohibitions and the affront to
community standards prohibited by the definition of obscenity.
The Government seeks to address this deficiency by arguing that
speech prohibited by the CPP A is virtually indistinguishable from
child pornography, which may be banned without regard to whether it
depicts works of value. See
New York v.
Ferber, 458
U. S., at 761. Where the images are themselves the product of child
sexual abuse,
Ferber recognized that the State had an
interest in stamping it out without regard to any judgment about
its content.
Id., at 761, n. 12; see also
id., at 775
(O'CONNOR, J., concurring) ("As drafted, New York's statute does
not attempt to suppress the communication of particular ideas").
The production of the work, not its content, was the target of the
statute. The fact that a work contained serious literary, artistic,
or other value did not excuse the harm it caused to its child
participants. It was simply "unrealistic to equate a community's
toleration for sexually oriented materials with the permissible
scope of legislation aimed at protecting children from sexual
exploitation."
Id., at 761, n. 12.
Ferber upheld a prohibition on the distribution and sale
of child pornography, as well as its production, because these acts
were "intrinsically related" to the sexual abuse of children in two
ways.
Id., at 759. First, as a permanent record of a child's
abuse, the continued circulation itself would harm the child who
had participated. Like a defamatory statement, each new publication
of the speech would cause new injury to the child's reputation and
emotional well-being. See
id., at 759, and n. 10. Second,
because the traffic in child pornography was an economic motive for
its production, the State had an interest in closing the
distribution network. "The most expeditious if not the only
practical method of law enforcement may be to dry up the market for
this material
250
by imposing severe criminal penalties on persons selling,
advertising, or otherwise promoting the product."
Id., at
760. Under either rationale, the speech had what the Court in
effect held was a proximate link to the crime from which it
came.
Later, in
Osborne v.
Ohio, 495 U. S. 103 (1990), the
Court ruled that these same interests justified a ban on the
possession of pornography produced by using children. "Given the
importance of the State's interest in protecting the victims of
child pornography," the State was justified in "attempting to stamp
out this vice at all levels in the distribution chain."
Id.,
at 110.
Osborne also noted the State's interest in
preventing child pornography from being used as an aid in the
solicitation of minors.
Id., at 111. The Court, however,
anchored its holding in the concern for the participants, those
whom it called the "victims of child pornography."
Id., at
110. It did not suggest that, absent this concern, other
governmental interests would suffice. See
infra, at
251-253.
In contrast to the speech in
Ferber, speech that itself
is the record of sexual abuse, the CPP A prohibits speech that
records no crime and creates no victims by its production. Virtual
child pornography is not "intrinsically related" to the sexual
abuse of children, as were the materials in
Ferber. 458 U.
S., at 759. While the Government asserts that the images can lead
to actual instances of child abuse, see
infra, at 251-254,
the causal link is contingent and indirect. The harm does not
necessarily follow from the speech, but depends upon some
unquantified potential for subsequent criminal acts.
The Government says these indirect harms are sufficient because,
as
Ferber acknowledged, child pornography rarely can be
valuable speech. See 458 U. S., at 762 ("The value of permitting
live performances and photographic reproductions of children
engaged in lewd sexual conduct is exceedingly modest, if not
de
minimis"). This argument, however, suffers from two flaws.
First,
Ferber's judg-
251
ment about child pornography was based upon how it was made, not
on what it communicated. The case reaffirmed that where the speech
is neither obscene nor the product of sexual abuse, it does not
fall outside the protection of the First Amendment. See
id.,
at 764-765 ("[T]he distribution of descriptions or other depictions
of sexual conduct, not otherwise obscene, which do not involve live
performance or photographic or other visual reproduction of live
performances, retains First Amendment protection").
The second flaw in the Government's position is that
Ferber did not hold that child pornography is by definition
without value. On the contrary, the Court recognized some works in
this category might have significant value, see
id., at 761,
but relied on virtual images-the very images prohibited by the
CPPA-as an alternative and permissible means of expression: "[I]f
it were necessary for literary or artistic value, a person over the
statutory age who perhaps looked younger could be utilized.
Simulation outside of the prohibition of the statute could provide
another alternative."
Id., at 763.
Ferber, then, not
only referred to the distinction between actual and virtual child
pornography, it relied on it as a reason supporting its holding.
Ferber provides no support for a statute that eliminates the
distinction and makes the alternative mode criminal as well.
III
The CPPA, for reasons we have explored, is inconsistent with
Miller and finds no support in
Ferber. The Government
seeks to justify its prohibitions in other ways. It argues that the
CPP A is necessary because pedophiles may use virtual child
pornography to seduce children. There are many things innocent in
themselves, however, such as cartoons, video games, and candy, that
might be used for immoral purposes, yet we would not expect those
to be prohibited because they can be misused. The Government, of
course, may punish adults who provide unsuitable mate-
252
rials to children, see
Ginsberg v.
New York,
390 U. S. 629
(1968), and it may enforce criminal penalties for unlawful
solicitation. The precedents establish, however, that speech within
the rights of adults to hear may not be silenced completely in an
attempt to shield children from it. See
Sable Communications of
Cal., Inc. v.
FCC, 492 U. S. 115 (1989). In
Butler v.
Michigan, 352 U. S. 380, 381
(1957), the Court invalidated a statute prohibiting distribution of
an indecent publication because of its tendency to " 'incite minors
to violent or depraved or immoral acts.'" A unanimous Court agreed
upon the important First Amendment principle that the State could
not "reduce the adult population ... to reading only what is fit
for children."
Id., at 383. We have reaffirmed this holding.
See
United States v.
Playboy Entertainment Group,
Inc., 529 U. S.
803, 814 (2000) ("[T]he objective of shielding children does
not suffice to support a blanket ban if the protection can be
accomplished by a less restrictive alternative");
Reno v.
American Civil Liberties Union, 521 U. S., at 875 (The
"governmental interest in protecting children from harmful
materials ... does not justify an unnecessarily broad suppression
of speech addressed to adults");
Sable Communications v.
FCC, supra, at 130-131 (striking down a ban on "dial-a-porn"
messages that had "the invalid effect of limiting the content of
adult telephone conversations to that which is suitable for
children to hear").
Here, the Government wants to keep speech from children not to
protect them from its content but to protect them from those who
would commit other crimes. The principle, however, remains the
same: The Government cannot ban speech fit for adults simply
because it may fall into the hands of children. The evil in
question depends upon the actor's unlawful conduct, conduct defined
as criminal quite apart from any link to the speech in question.
This establishes that the speech ban is not narrowly drawn. The
objective is to prohibit illegal conduct, but this restriction goes
well
253
beyond that interest by restricting the speech available to
law-abiding adults.
The Government submits further that virtual child pornography
whets the appetites of pedophiles and encourages them to engage in
illegal conduct. This rationale cannot sustain the provision in
question. The mere tendency of speech to encourage unlawful acts is
not a sufficient reason for banning it. The government "cannot
constitutionally premise legislation on the desirability of
controlling a person's private thoughts."
Stanley v.
Georgia, 394
U. S. 557, 566 (1969). First Amendment freedoms are most in
danger when the government seeks to control thought or to justify
its laws for that impermissible end. The right to think is the
beginning of freedom, and speech must be protected from the
government because speech is the beginning of thought.
To preserve these freedoms, and to protect speech for its own
sake, the Court's First Amendment cases draw vital distinctions
between words and deeds, between ideas and conduct. See
Kingsley
Int'l Pictures Corp., 360 U. S., at 689; see also
Bartnicki v.
Vopper, 532 U. S. 514, 529 (2001)
("The normal method of deterring unlawful conduct is to impose an
appropriate punishment on the person who engages in it"). The
government may not prohibit speech because it increases the chance
an unlawful act will be committed "at some indefinite future time."
Hess v.
Indiana, 414 U. S. 105, 108 (1973)
(per curiam). The government may suppress speech for
advocating the use of force or a violation of law only if "such
advocacy is directed to inciting or producing imminent lawless
action and is likely to incite or produce such action."
Brandenburg v.
Ohio, 395 U. S. 444, 447 (1969)
(per curiam). There is here no attempt, incitement,
solicitation, or conspiracy. The Government has shown no more than
a remote connection between speech that might encourage thoughts or
impulses and any resulting child abuse. Without a significantly
stronger, more direct connection, the Government may not
prohibit
254
speech on the ground that it may encourage pedophiles to engage
in illegal conduct.
The Government next argues that its objective of eliminating the
market for pornography produced using real children necessitates a
prohibition on virtual images as well. Virtual images, the
Government contends, are indistinguishable from real ones; they are
part of the same market and are often exchanged. In this way, it is
said, virtual images promote the trafficking in works produced
through the exploitation of real children. The hypothesis is
somewhat implausible. If virtual images were identical to illegal
child pornography, the illegal images would be driven from the
market by the indistinguishable substitutes. Few pornographers
would risk prosecution by abusing real children if fictional,
computerized images would suffice.
In the case of the material covered by
Ferber, the
creation of the speech is itself the crime of child abuse; the
prohibition deters the crime by removing the profit motive. See
Osborne, 495 U. S., at 109-110. Even where there is an
underlying crime, however, the Court has not allowed the
suppression of speech in all cases.
E. g., Bartnicki, supra,
at 529 (market deterrence would not justify law prohibiting a radio
commentator from distributing speech that had been unlawfully
intercepted). We need not consider where to strike the balance in
this case, because here, there is no underlying crime at all. Even
if the Government's market deterrence theory were persuasive in
some contexts, it would not justify this statute.
Finally, the Government says that the possibility of producing
images by using computer imaging makes it very difficult for it to
prosecute those who produce pornography by using real children.
Experts, we are told, may have difficulty in saying whether the
pictures were made by using real children or by using computer
imaging. The necessary solution, the argument runs, is to prohibit
both kinds of im-
255
ages. The argument, in essence, is that protected speech may be
banned as a means to ban unprotected speech. This analysis turns
the First Amendment upside down.
The Government may not suppress lawful speech as the means to
suppress unlawful speech. Protected speech does not become
unprotected merely because it resembles the latter. The
Constitution requires the reverse. "[T]he possible harm to society
in permitting some unprotected speech to go unpunished is
outweighed by the possibility that protected speech of others may
be muted .... "
Broadrick v.
Oklahoma, 413 U. S., at
612. The overbreadth doctrine prohibits the Government from banning
unprotected speech if a substantial amount of protected speech is
prohibited or chilled in the process.
To avoid the force of this objection, the Government would have
us read the CPP A not as a measure suppressing speech but as a law
shifting the burden to the accused to prove the speech is lawful.
In this connection, the Government relies on an affirmative defense
under the statute, which allows a defendant to avoid conviction for
nonpossession offenses by showing that the materials were produced
using only adults and were not otherwise distributed in a manner
conveying the impression that they depicted real children. See 18
U. S. C. § 2252A(c).
The Government raises serious constitutional difficulties by
seeking to impose on the defendant the burden of proving his speech
is not unlawful. An affirmative defense applies only after
prosecution has begun, and the speaker must himself prove, on pain
of a felony conviction, that his conduct falls within the
affirmative defense. In cases under the CPPA, the evidentiary
burden is not trivial. Where the defendant is not the producer of
the work, he may have no way of establishing the identity, or even
the existence, of the actors. If the evidentiary issue is a serious
problem for the Government, as it asserts, it will be at least as
difficult
256
for the innocent possessor. The statute, moreover, applies to
work created before 1996, and the producers themselves may not have
preserved the records necessary to meet the burden of proof.
Failure to establish the defense can lead to a felony
conviction.
We need not decide, however, whether the Government could impose
this burden on a speaker. Even if an affirmative defense can save a
statute from First Amendment challenge, here the defense is
incomplete and insufficient, even on its own terms. It allows
persons to be convicted in some instances where they can prove
children were not exploited in the production. A defendant charged
with possessing, as opposed to distributing, proscribed works may
not defend on the ground that the film depicts only adult actors.
See
ibid. So while the affirmative defense may protect a
movie producer from prosecution for the act of distribution, that
same producer, and all other persons in the subsequent distribution
chain, could be liable for possessing the prohibited work.
Furthermore, the affirmative defense provides no protection to
persons who produce speech by using computer imaging, or through
other means that do not involve the use of adult actors who appear
to be minors. See
ibid. In these cases, the defendant can
demonstrate no children were harmed in producing the images, yet
the affirmative defense would not bar the prosecution. For this
reason, the affirmative defense cannot save the statute, for it
leaves unprotected a substantial amount of speech not tied to the
Government's interest in distinguishing images produced using real
children from virtual ones.
In sum, § 2256(8)(B) covers materials beyond the categories
recognized in
Ferber and
Miller, and the reasons the
Government offers in support of limiting the freedom of speech have
no justification in our precedents or in the law of the First
Amendment. The provision abridges the freedom to engage in a
substantial amount of lawful speech. For this reason, it is
overbroad and unconstitutional.
257
IV
Respondents challenge § 2256(8)(D) as well. This provision bans
depictions of sexually explicit conduct that are "advertised,
promoted, presented, described, or distributed in such a manner
that conveys the impression that the material is or contains a
visual depiction of a minor engaging in sexually explicit conduct."
The parties treat the section as nearly identical to the provision
prohibiting materials that appear to be child pornography. In the
Government's view, the difference between the two is that "the
'conveys the impression' provision requires the jury to assess the
material at issue in light of the manner in which it is promoted."
Brief for Petitioners 18, n. 3. The Government's assumption,
however, is that the determination would still depend principally
upon the content of the prohibited work.
We disagree with this view. The CPPA prohibits sexually explicit
materials that "conve[y] the impression" they depict minors. While
that phrase may sound like the "appears to be" prohibition in §
2256(8)(B), it requires little judgment about the content of the
image. Under § 2256(8)(D), the work must be sexually explicit, but
otherwise the content is irrelevant. Even if a film contains no
sexually explicit scenes involving minors, it could be treated as
child pornography if the title and trailers convey the impression
that the scenes would be found in the movie. The determination
turns on how the speech is presented, not on what is depicted.
While the legislative findings address at length the problems posed
by materials that look like child pornography, they are silent on
the evils posed by images simply pandered that way.
The Government does not offer a serious defense of this
provision, and the other arguments it makes in support of the CPP A
do not bear on § 2256(8)(D). The materials, for instance, are not
likely to be confused for child pornography in a criminal trial.
The Court has recognized that pandering may be relevant, as an
evidentiary matter, to
258
the question whether particular materials are obscene. See
Ginzburg v.
United States, 383 U. S. 463, 474 (1966)
("[I]n close cases evidence of pandering may be probative with
respect to the nature of the material in question and thus satisfy
the [obscenity] test"). Where a defendant engages in the
"commercial exploitation of erotica solely for the sake of their
prurient appeal,"
id., at 466, the context he or she creates
may itself be relevant to the evaluation of the materials.
Section 2256(8)(D), however, prohibits a substantial amount of
speech that falls outside
Ginzburg's rationale. Materials
falling within the proscription are tainted and unlawful in the
hands of all who receive it, though they bear no responsibility for
how it was marketed, sold, or described. The statute, furthermore,
does not require that the context be part of an effort at
"commercial exploitation."
Ibid. As a consequence, the CPP A
does more than prohibit pandering. It prohibits possession of
material described, or pandered, as child pornography by someone
earlier in the distribution chain. The provision prohibits a
sexually explicit film containing no youthful actors, just because
it is placed in a box suggesting a prohibited movie. Possession is
a crime even when the possessor knows the movie was mislabeled. The
First Amendment requires a more precise restriction. For this
reason, § 2256(8)(D) is substantially overbroad and in violation of
the First Amendment.
v
For the reasons we have set forth, the prohibitions of §§
2256(8)(B) and 2256(8)(D) are overbroad and unconstitutional.
Having reached this conclusion, we need not address respondents'
further contention that the provisions are unconstitutional because
of vague statutory language.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
259
JUSTICE THOMAS, concurring in the judgment.
In my view, the Government's most persuasive asserted interest
in support of the Child Pornography Prevention Act of 1996 (CPPA),
18 U. S. C. § 2251
et seq., is the prosecution
rationale-that persons who possess and disseminate pornographic
images of real children may escape conviction by claiming that the
images are computer generated, thereby raising a reasonable doubt
as to their guilt. See Brief for Petitioners 37. At this time,
however, the Government asserts only that defendants
raise
such defenses, not that they have done so successfully. In fact,
the Government points to no case in which a defendant has been
acquitted based on a "computer-generated images" defense. See
id., at 37-38, and n. 8. While this speculative interest
cannot support the broad reach of the CPPA, technology may evolve
to the point where it becomes impossible to enforce actual child
pornography laws because the Government cannot prove that certain
pornographic images are of real children. In the event this occurs,
the Government should not be foreclosed from enacting a regulation
of virtual child pornography that contains an appropriate
affirmative defense or some other narrowly drawn restriction.
The Court suggests that the Government's interest in enforcing
prohibitions against real child pornography cannot justify
prohibitions on virtual child pornography, because "[t]his analysis
turns the First Amendment upside down. The Government may not
suppress lawful speech as the means to suppress unlawful speech."
Ante, at 255. But if technological advances thwart
prosecution of "unlawful speech," the Government may well have a
compelling interest in barring or otherwise regulating some narrow
category of "lawful speech" in order to enforce effectively laws
against pornography made through the abuse of real children. The
Court does leave open the possibility that a more complete
affirmative defense could save a statute's constitutionality, see
ante, at 256, implicitly accepting that some
260
regulation of virtual child pornography might be constitutional.
I would not prejudge, however, whether a more complete affirmative
defense is the only way to narrowly tailor a criminal statute that
prohibits the possession and dissemination of virtual child
pornography. Thus, I concur in the judgment of the Court.
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE SCALIA
join as to Part II, concurring in the judgment in part and
dissenting in part.
The Child Pornography Prevention Act of 1996 (CPPA), 18 U. S. C.
§ 2251
et seq., proscribes the "knowin[gJ" reproduction,
distribution, sale, reception, or possession of images that fall
under the statute's definition of child pornography, § 2252A(a).
Possession is punishable by up to 5 years in prison for a first
offense, § 2252A(b), and all other transgressions are punishable by
up to 15 years in prison for a first offense, § 2252A(a). The CPP A
defines child pornography to include "any visual depiction ... of
sexually explicit conduct" where "such visual depiction is, or
appears to be, of a minor engaging in sexually explicit
conduct," § 2256(8)(B) (emphasis added), or "such visual depiction
is advertised, promoted, presented, described, or distributed in
such a manner that
conveys the impression that the material
is or contains a visual depiction of a minor engaging in sexually
explicit conduct," § 2256(8)(D) (emphasis added). The statute
defines "sexually explicit conduct" as "actual or simulated- ...
sexual intercourse ... ; ... bestiality; ... masturbation; ...
sadistic or masochistic abuse; or ... lascivious exhibition of the
genitals or pubic area of any person." § 2256(2).
The CPPA provides for two affirmative defenses. First, a
defendant is not liable for possession if the defendant possesses
less than three proscribed images and promptly destroys such images
or reports the matter to law enforcement. § 2252A(d). Second, a
defendant is not liable for the remaining acts proscribed in §
2252A(a) if the images involved were
261
produced using only adult subjects and are not presented in such
a manner as to "convey the impression" they contain depictions of
minors engaging in sexually explicit conduct. §2252A(c).
This litigation involves a facial challenge to the CPP A's
prohibitions of pornographic images that "appea[r] to be ... of a
minor" and of material that "conveys the impression" that it
contains pornographic images of minors. While I agree with the
Court's judgment that the First Amendment requires that the latter
prohibition be struck down, I disagree with its decision to strike
down the former prohibition in its entirety. The "appears to be ...
of a minor" language in § 2256(8)(B) covers two categories of
speech: pornographic images of adults that look like children
("youthful adult pornography") and pornographic images of children
created wholly on a computer, without using any actual children
("virtual child pornography"). The Court concludes, correctly, that
the CPP A's ban on youthful adult pornography is overbroad. In my
view, however, respondents fail to present sufficient evidence to
demonstrate that the ban on virtual child pornography is overbroad.
Because invalidation due to overbreadth is such "strong medicine,"
Broadrick v.
Oklahoma, 413 U. S. 601, 613
(1973), I would strike down the prohibition of pornography that
"appears to be" of minors only insofar as it is applied to the
class of youthful adult pornography.
I
Respondents assert that the CPP A's prohibitions of youthful
adult pornography, virtual child pornography, and material that
"conveys the impression" that it contains actual child pornography
are overbroad, that the prohibitions are content-based regulations
not narrowly tailored to serve a compelling Government interest,
and that the prohibitions are unconstitutionally vague. The
Government not only disagrees with these specific contentions, but
also requests that
262
the Court exclude youthful adult and virtual child pornography
from the protection of the First Amendment.
I agree with the Court's decision not to grant this request.
Because the Government may already prohibit obscenity without
violating the First Amendment, see
Miller v.
California, 413
U. S. 15, 23 (1973), what the Government asks this Court to
rule is that it may also prohibit youthful adult and virtual child
pornography that is merely indecent without violating that
Amendment. Although such pornography looks like the material at
issue in
New York v.
Ferber, 458 U. S. 747 (1982), no
children are harmed in the process of creating such pornography.
Id., at 759. Therefore,
Ferber does not support the
Government's ban on youthful adult and virtual child pornography.
See
ante, at 249-251. The Government argues that, even if
the production of such pornography does not directly harm children,
this material aids and abets child abuse. See
ante, at
251-254. The Court correctly concludes that the causal connection
between pornographic images that "appear" to include minors and
actual child abuse is not strong enough to justify withdrawing
First Amendment protection for such speech. See
ante, at
250.
I also agree with the Court's decision to strike down the CPP
A's ban on material presented in a manner that "conveys the
impression" that it contains pornographic depictions of actual
children ("actual child pornography"). 18 U. S. C. § 2256(8)(D).
The Government fails to explain how this ban serves any compelling
state interest. Any speech covered by § 2256(8)(D) that is obscene,
actual child pornography, or otherwise indecent is prohibited by
other federal statutes. See §§ 1460-1466 (obscenity), 2256(8)(A),
(B) (actual child pornography), 2256(8)(B) (youthful adult and
virtual child pornography). The Court concludes that § 2256(8)(D)
is overbroad, but its reasoning also persuades me that the
provision is not narrowly tailored. See
ante, at 257-258.
The provision therefore fails strict scrutiny.
United
States
263
v. Playboy Entertainment Group, Inc.,
529 U. S. 803, 813
(2000).
Finally, I agree with the Court that the CPP A's ban on youthful
adult pornography is overbroad. The Court provides several examples
of movies that, although possessing serious literary, artistic, or
political value and employing only adult actors to perform
simulated sexual conduct, fall under the CPPA's proscription on
images that "appea[r] to be ... of a minor engaging in sexually
explicit conduct," 18 U. S. C. § 2256(8)(B). See
ante, at
247-248 (citing Romeo and Juliet, Traffic, and American Beauty).
Individuals or businesses found to possess just three such films
have no defense to criminal liability under the CPPA. §
2252A(d).
II
I disagree with the Court, however, that the CPP A's prohibition
of virtual child pornography is overbroad. Before I reach that
issue, there are two preliminary questions: whether the ban on
virtual child pornography fails strict scrutiny and whether that
ban is unconstitutionally vague. I would answer both in the
negative.
The Court has long recognized that the Government has a
compelling interest in protecting our Nation's children. See
Ferber, supra, at 756-757 (citing cases). This interest is
promoted by efforts directed against sexual offenders and actual
child pornography. These efforts, in turn, are supported by the CPP
A's ban on virtual child pornography. Such images whet the
appetites of child molesters, § 121, 110 Stat. 3009-26,
Congressional Findings (4), (10)(B), notes following 18 U. S. C. §
2251, who may use the images to seduce young children,
id.,
Finding (3). Of even more serious concern is the prospect that
defendants indicted for the production, distribution, or possession
of actual child pornography may evade liability by claiming that
the images attributed to them are in fact computer generated.
Id., Finding (6)(A). Respondents may be correct that no
defendant has success-
264
fully employed this tactic. See,
e. g., United States v.
Fox, 248 F.3d
394 (CA5 2001);
United States v.
Vig,
167 F.3d
443 (CA8 1999);
United States v.
Kimbrough, 69 F.3d
723 (CA5 1995); United States v.
Coleman, 54 M.
J. 869 (Army Ct. Crim. App. 2001). But, given the rapid pace of
advances in computer-graphics technology, the Government's concern
is reasonable. Computer-generated images lodged with the Court by
amici curiae National Law Center for Children and Families
et al. bear a remarkable likeness to actual human beings. Anyone
who has seen, for example, the film Final Fantasy: The Spirits
Within (H. Sakaguchi and M. Sakakibara directors, 2001) can
understand the Government's concern. Moreover, this Court's cases
do not require Congress to wait for harm to occur before it can
legislate against it. See
Turner Broadcasting System, Inc.
v.
FCC, 520 U.
S. 180, 212 (1997).
Respondents argue that, even if the Government has a compelling
interest to justify banning virtual child pornography, the "appears
to be ... of a minor" language is not narrowly tailored to serve
that interest. See
Sable Communications of Cal., Inc. v.
FCC, 492 U. S.
115, 126 (1989). They assert that the CPP A would capture even
cartoon sketches or statues of children that were sexually
suggestive. Such images surely could not be used, for instance, to
seduce children. I agree. A better interpretation of "appears to be
... of" is "virtually indistinguishable from" -an interpretation
that would not cover the examples respondents provide. Not only
does the text of the statute comfortably bear this narrowing
interpretation, the interpretation comports with the language that
Congress repeatedly used in its findings of fact. See,
e.
g., Congressional Finding (8), notes following 18 U. S. C. §
2251 (discussing how "visual depictions produced wholly or in part
by electronic, mechanical, or other means, including by computer,
which are virtually indistinguishable to the unsuspecting viewer
from photographic images of actual children" may whet the appetites
of
265
child molesters). See also
id., Findings (5), (12).
Finally, to the extent that the phrase "appears to be ... of" is
ambiguous, the narrowing interpretation avoids constitutional
problems such as overbreadth and lack of narrow tailoring. See
Crowell v.
Benson, 285 U. S. 22, 62
(1932).
Reading the statute only to bar images that are virtually
indistinguishable from actual children would not only assure that
the ban on virtual child pornography is narrowly tailored, but
would also assuage any fears that the "appears to be ... of a
minor" language is vague. The narrow reading greatly limits any
risks from "'discriminatory enforcement.'''
Reno v.
American Civil Liberties Union, 521 U. S. 844, 872
(1997). Respondents maintain that the "virtually indistinguishable
from" language is also vague because it begs the question: from
whose perspective? This problem is exaggerated. This Court has
never required "mathematical certainty" or "'meticulous
specificity''' from the language of a statute.
Grayned v.
City of Rockford, 408 U. S. 104, 110
(1972).
The Court concludes that the CPP A's ban on virtual child
pornography is overbroad. The basis for this holding is unclear.
Although a content-based regulation may serve a compelling state
interest, and be as narrowly tailored as possible while
substantially serving that interest, the regulation may
unintentionally ensnare speech that has serious literary, artistic,
political, or scientific value or that does not threaten the harms
sought to be combated by the Government. If so, litigants may
challenge the regulation on its face as overbroad, but in doing so
they bear the heavy burden of demonstrating that the regulation
forbids a substantial amount of valuable or harmless speech. See
Reno, supra, at 896 (O'CONNOR, J., concurring in judgment in
part and dissenting in part) (citing
Broadrick, 413 U. S.,
at 615). Respondents have not made such a demonstration.
Respondents provide no examples of films or other materials that
are wholly computer generated and contain images that "appea[r] to
be ...
266
of minors" engaging in indecent conduct, but that have serious
value or do not facilitate child abuse. Their overbreadth challenge
therefore fails.
III
Although in my view the CPP A's ban on youthful adult
pornography appears to violate the First Amendment, the ban on
virtual child pornography does not. It is true that both bans are
authorized by the same text: The statute's definition of child
pornography to include depictions that "appea[r] to be" of children
in sexually explicit poses. 18 U. S. C. § 2256(8)(B). Invalidating
a statute due to overbreadth, however, is an extreme remedy, one
that should be employed "sparingly and only as a last resort."
Broadrick, supra, at 613. We have observed that "[i]t is not
the usual judicial practice, ... nor do we consider it generally
desirable, to proceed to an overbreadth issue unnecessarily."
Board of Trustees of State Univ. of N.
Y. v.
Fox, 492 U. S.
469, 484-485 (1989).
Heeding this caution, I would strike the "appears to be"
provision only insofar as it is applied to the subset of cases
involving youthful adult pornography. This approach is similar to
that taken in
United States v.
Grace, 461 U. S. 171 (1983),
which considered the constitutionality of a federal statute that
makes it unlawful to "parade, stand, or move in processions or
assemblages in the Supreme Court Building or grounds, or to display
therein any flag, banner, or device designed or adapted to bring
into public notice any party, organization, or movement." 40 U. S.
C. § 13k (1994 ed.). The term "Supreme Court ... grounds"
technically includes the sidewalks surrounding the Court, but
because sidewalks have traditionally been considered a public
forum, the Court held the statute unconstitutional only when
applied to sidewalks.
Although 18 U. S. C. § 2256(8)(B) does not distinguish between
youthful adult and virtual child pornography, the CPP A elsewhere
draws a line between these two classes of
267
speech. The statute provides an affirmative defense for those
who produce, distribute, or receive pornographic images of
individuals who are actually adults, § 2252A(c), but not for those
with pornographic images that are wholly computer generated. This
is not surprising given that the legislative findings enacted by
Congress contain no mention of youthful adult pornography. Those
findings focus explicitly only on actual child pornography and
virtual child pornography. See,
e. g., Finding (9),
notes following § 2251 ("[T]he danger to children who are seduced
and molested with the aid of child sex pictures is just as great
when the child pornographer or child molester uses visual
depictions of child sexual activity produced wholly or in part by
electronic, mechanical, or other means, including by computer, as
when the material consists of unretouched photographic images of
actual children engaging in sexually explicit conduct"). Drawing a
line around, and striking just, the CPP A's ban on youthful adult
pornography not only is consistent with Congress' understanding of
the categories of speech encompassed by § 2256(8)(B), but also
preserves the CPP A's prohibition of the material that Congress
found most dangerous to children.
In sum, I would strike down the CPP A's ban on material that
"conveys the impression" that it contains actual child pornography,
but uphold the ban on pornographic depictions that "appea[r] to be"
of minors so long as it is not applied to youthful adult
pornography.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA joins in part,
dissenting.
I agree with Part II of JUSTICE O'CONNOR'S opinion concurring in
the judgment in part and dissenting in part. Congress has a
compelling interest in ensuring the ability to enforce prohibitions
of actual child pornography, and we should defer to its findings
that rapidly advancing technology soon will make it all but
impossible to do so.
Turner Broadcasting System, Inc. v.
FCC, 520 U. S.
180, 195 (1997) (we
268
"'accord substantial deference to the predictive judgments of
Congress'" in First Amendment cases).
I also agree with JUSTICE O'CONNOR that serious First Amendment
concerns would arise were the Government ever to prosecute someone
for simple distribution or possession of a film with literary or
artistic value, such as Traffic or American Beauty.
Ante, at
262-263 (opinion concurring in judgment in part and dissenting in
part). I write separately, however, because the Child Pornography
Prevention Act of 1996 (CPPA), 18 U. S. C. § 2251
et seq.,
need not be construed to reach such materials.
We normally do not strike down a statute on First Amendment
grounds "when a limiting construction has been or could be placed
on the challenged statute."
Broadrick v.
Oklahoma,
413 U. S. 601,
613 (1973). See,
e. g., New York v.
Ferber, 458 U.
S. 747, 769 (1982) (appreciating "the widereaching effects of
striking down a statute on its face");
Parker v.
Levy, 417 U.
S. 733, 760 (1974) ("This Court has ... repeatedly expressed
its reluctance to strike down a statute on its face where there
were a substantial number of situations to which it might be
validly applied"). This case should be treated no differently.
Other than computer-generated images that are virtually
indistinguishable from real children engaged in sexually explicit
conduct, the CPP A can be limited so as not to reach any material
that was not already unprotected before the CPP A. The CPP A's
definition of "sexually explicit conduct" is quite explicit in this
regard. It makes clear that the statute only reaches "visual
depictions" of:
"[A]ctual or simulated ... sexual intercourse, including
genital-genital, oral-genital, anal-genital, or oral-anal, whether
between persons of the same or opposite sex;... bestiality;...
masturbation;... sadistic or masochistic abuse; or ...lascivious
exhibition of the genitals or pubic area of any person." 18 U. S.
C. § 2256(2).
269
The Court and JUSTICE O'CONNOR suggest that this very graphic
definition reaches the depiction of youthful looking adult actors
engaged in suggestive sexual activity, presumably because the
definition extends to "simulated" intercourse.
Ante, at
247-248 (majority opinion);
ante, at 263 (opinion concurring
in judgment in part and dissenting in part). Read as a whole,
however, I think the definition reaches only the sort of "hard core
of child pornography" that we found without protection in
Ferber, supra, at 773774. So construed, the CPP A bans
visual depictions of youthful looking adult actors engaged in
actual sexual activity; mere
suggestions of sexual
activity, such as youthful looking adult actors squirming under a
blanket, are more akin to written descriptions than visual
depictions, and thus fall outside the purview of the statute.1
The reference to "simulated" has been part of the definition of
"sexually explicit conduct" since the statute was first passed. See
Protection of Children Against Sexual Exploitation Act of 1977,
Pub. L. 95-225, 92 Stat. 7. But the inclusion of "simulated"
conduct, alongside "actual" conduct, does not change the "hard
core" nature of the image banned. The reference to "simulated"
conduct simply brings within the statute's reach depictions of hard
core pornography that are "made to look genuine," Webster's Ninth
New Collegiate Dictionary 1099 (1983)-including the main target of
the CPP A, computer-generated images virtually indistinguishable
from real children engaged in sexually explicit conduct. Neither
actual conduct nor simulated conduct, however, is properly
construed to reach depictions such as those in a film portrayal of
Romeo and Juliet,
ante, at 247-248 (majority opinion);
ante, at 263 (O'CONNOR, J., concurring in judgment
1 Of course, even the narrow class of youthful looking adult
images prohibited under the CPPA is subject to an affirmative
defense so long as materials containing such images are not
advertised or promoted as child pornography. 18 U. S. C. §
2252A(c).
270
in part and dissenting in part), which are far removed from the
hardcore pornographic depictions that Congress intended to
reach.
Indeed, we should be loath to construe a statute as banning film
portrayals of Shakespearian tragedies, without some indication-from
text or legislative history-that such a result was intended. In
fact, Congress explicitly instructed that such a reading of the CPP
A would be wholly unwarranted. As the Court of Appeals for the
First Circuit has observed:
"[T]he legislative record, which makes plain that the [CPPA] was
intended to target only a narrow class of images-visual depictions
'which are virtually indistinguishable to unsuspecting viewers from
unretouched photographs of actual children engaging in identical
sexual conduct.'" United States v. Hilton, 167 F.3d
61, 72 (1999) (quoting S. Rep. No. 104-358, pt. I, p. 7
(1996)).
Judge Ferguson similarly observed in his dissent in the Court of
Appeals in this case:
"From reading the legislative history, it becomes clear that the
CPPA merely extends the existing prohibitions on 'real' child
pornography to a narrow class of computer-generated pictures easily
mistaken for real photographs of real children." Free Speech
Coalition v. Reno, 198 F.3d
1083, 1102 (CA9 1999).
See also S. Rep. No. 104-358, pt. IV(C), at 21 ("[The CPPA] does
not, and is not intended to, apply to a depiction produced using
adults engaging i[n] sexually explicit conduct, even where a
depicted individual may appear to be a minor" (emphasis in
original));
id., pt. I, at 7 ("[The CPPA] addresses the
problem of 'high-tech kiddie porn' "). We have looked to
legislative history to limit the scope of child pornography
statutes in the past,
United States v.
271
X-Citement Video, Inc., 513 U. S. 64, 73-77
(1994), and we should do so here as welP
This narrow reading of "sexually explicit conduct" not only
accords with the text of the CPP A and the intentions of Congress;
it is exactly how the phrase was understood prior to the broadening
gloss the Court gives it today. Indeed, had "sexually explicit
conduct" been thought to reach the sort of material the Court says
it does, then films such as Traffic and American Beauty would not
have been made the way they were.
Ante, at 247-248
(discussing these films' portrayals of youthful looking adult
actors engaged in sexually suggestive conduct). Traffic won its
Academy Award in 2001. American Beauty won its Academy Award in
2000. But the CPP A has been on the books, and has been enforced,
since 1996. The chill felt by the Court,
ante, at 244
("[F]ew legitimate movie producers ... would risk distributing
images in or near the uncertain reach of this law"), has apparently
never been felt by those who actually make movies.
To the extent the CPP A prohibits possession or distribution of
materials that "convey the impression" of a child engaged in
sexually explicit conduct, that prohibition can and should be
limited to reach "the sordid business of pandering" which lies
outside the bounds of First Amendment protection.
Ginzburg
v.
United States, 383 U. S. 463, 467
(1966);
e. g., id., at 472 (conduct that
"deliberately emphasized the sexually provocative aspects of the
work, in order to catch the salaciously disposed," may lose First
Amendment protection);
United States v.
Playboy
Entertainment Group, Inc., 529 U. S. 803, 831-832
(2000) (SCALIA, J., dissenting) (collecting cases). This is how the
Government asks us to construe the statute, Brief for Petitioners
18, and n. 3; Tr. of Oral Arg. 27, and it is the most plausible
reading of the text, which prohibits only materials
"advertised,
promoted, presented, described, or distributed in such a manner
that conveys the
2JUSTICE SCALIA does not join this paragraph discussing the
statute's legislative record.
272
impression that the material is or contains a visual depiction
of a minor engaging in sexually explicit conduct." 18 U. S. C. §
2256(8)(D) (emphasis added).
The First Amendment may protect the video shopowner or film
distributor who promotes material as "entertaining" or "acclaimed"
regardless of whether the material contains depictions of youthful
looking adult actors engaged in nonobscene but sexually suggestive
conduct. The First Amendment does not, however, protect the
panderer. Thus, materials promoted as conveying the impression that
they depict actual minors engaged in sexually explicit conduct do
not escape regulation merely because they might warrant First
Amendment protection if promoted in a different manner. See
Ginzburg, supra, at 474-476; cf.
Jacobellis v.
Ohio, 378 U. S. 184, 201 (1964) (Warren, C. J., dissenting)
("In my opinion, the use to which various materials are put-not
just the words and pictures themselves-must be considered in
determining whether or not the materials are obscene"). I would
construe "conveys the impression" as limited to the panderer, which
makes the statute entirely consistent with
Ginzburg and
other cases.
The Court says that "conveys the impression" goes well beyond
Ginzburg to "prohibi[t] [the] possession of material
described, or pandered, as child pornography by someone earlier in
the distribution chain."
Ante, at 258. The Court's concern
is that an individual who merely possesses protected materials
(such as videocassettes of Traffic or American Beauty) might offend
the CPPA regardless of whether the individual actually intended to
possess materials containing unprotected images.
Ante, at
248; see also
ante, at 263 (O'CONNOR, J., concurring in
judgment in part and dissenting in part) ("Individuals or
businesses found to possess just three such films have no defense
to criminalliability under the CPP A").
This concern is a legitimate one, but there is, again, no need
or reason to construe the statute this way. In
273
X-Citement Video, supra, we faced a provision of the
Protection of Children Against Sexual Exploitation Act of 1977, the
precursor to the CPP A, which lent itself much less than the
present statute to attributing a "knowingly" requirement to the
contents of the possessed visual depictions. We held that such a
requirement nonetheless applied, so that the Government would have
to prove that a person charged with possessing child pornography
actually knew that the materials contained depictions of real
minors engaged in sexually explicit conduct. 513 U. S., at 77-78.
In light of this holding, and consistent with the narrow class of
images the CPP A is intended to prohibit, the CPP A can be
construed to prohibit only the knowing possession of materials
actually containing visual depictions of real minors engaged in
sexually explicit conduct, or computer-generated images virtually
indistinguishable from real minors engaged in sexually explicit
conduct. The mere possession of materials containing only
suggestive depictions of youthful looking adult actors need not be
so included.
In sum, while potentially impermissible applications of the CPP
A may exist, I doubt that they would be "substantial ... in
relation to the statute's plainly legitimate sweep."
Broadrick, 413 U. S., at 615. The aim of ensuring the
enforceability of our Nation's child pornography laws is a
compelling one. The CPP A is targeted to this aim by extending the
definition of child pornography to reach computergenerated images
that are virtually indistinguishable from real children engaged in
sexually explicit conduct. The statute need not be read to do any
more than precisely this, which is not offensive to the First
Amendment.
For these reasons, I would construe the CPP A in a manner
consistent with the First Amendment, reverse the Court of Appeals'
judgment, and uphold the statute in its entirety.
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