• Last updated on November 11, 2022

The Supreme Court held that Congress has no constitutional authority to outlaw computer-generated depiction of children that is sexually oriented but not legally obscene.

The Child Pornography Prevention Act of 1996Child Pornography Prevention Act of 1996 (CPPA) criminalized all forms of child pornography, including computer-generated images that portray minors engaged in sexually explicit conduct. The act did not make any distinction between indecency and obscenity. The Free Speech Coalition, an adult entertainment commercial group, alleged in court that the statute was overly broad and vague, thereby restraining works protected by the First Amendment. The Court of Appeals agreed and held that the CPPA was unconstitutional because it banned material that was neither obscene according to the test under Miller v. California[c]Miller v. California (1971), nor produced with the exploitation of children as in New York v. Ferber[c]New York v. Ferber (1882).

The Supreme Court upheld the lower court’s ruling. Writing for a 6-3 majority, Justice Anthony M. KennedyKennedy, Anthony M.;Ashcroft v. Free Speech Coalition found that the CPPA did not meet Miller’s definition of obscenity because of its lack of reference to community standards. The CPPA lacked the support of Ferber, moreover, because it punished expression even though its production was not based on crime or the victimization of anyone. The Ashcroft opinion reaffirmed that when sexually oriented expression is neither obscene nor the product of sexual abuse, it falls under the protection under the First Amendment. Finally, Kennedy wrote that the potential misuse of material by pedophiles did not justify the statute, since almost all forms of expression are subject to abuse by some individuals.

First Amendment

Kennedy, Anthony M.

New York v. Ferber

Obscenity and pornography

Speech and press, freedom of

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