The U.S. Supreme Court addresses the Child Pornography Prevention Act and Child Online Protection Act in Ashcroft v. Free Speech Coalition and Ashcroft v. American Civil Liberties Union.

• Author: Mota, Sue Ann

"Congress shall make no law ... abridging the freedom of speech." (1)

1. INTRODUCTION

   A very difficult issue facing the United States is applying First Amendment rights in cyberspace. With the motive of protecting children, the government has attempted regulation in this area concerning virtual child pornography and minors accessing pornographic materials online.

   Finding that "the use of children in the production of sexually explicit material, including photographs, films, videos, computer images, and other visual depictions, is a form of sexual abuse which can result in physical or psychological harm, or both, to the children involved," (2) Congress passed the Child Pornography Prevention Act of 1996 ("CPPA"). (3) The CPPA expanded the federal ban on child pornography from pornographic images made using actual children to include computer-generated images appearing to be children engaged in sexually explicit conduct. (4) On April 16, 2002, in Ashcroft v. Free Speech Coalition, the U.S. Supreme Court struck down sections of the CPPA as overbroad and unconstitutional. (5)

   Finding that minors have access to harmful materials through the widespread availability of the Internet, (6) Congress in 1998 enacted the Child Online Protection Act ("COPA") (7) to restrict access by minors to harmful materials sold on the World Wide Web. This section was carefully drafted (8) to respond to a 1997 U.S. Supreme Court decision, Reno v. American Civil Liberties Union ("ACLU"), (9) that struck down as unconstitutional provisions of the Communications Decency Act ("CDA"), (10) which was enacted by Congress in 1996 to limit the exposure of children to sexually explicit materials online. On May 13, 2002, in Ashcroft v. ACLU, the U.S. Supreme Court upheld sections of COPA as not unconstitutionally overbroad, but the Court expressed no view as to whether other provisions are overbroad, whether the statute is vague, or whether COPA survives strict scrutiny. (11)

   Both the CPPA and the COPA were statutes intended by Congress to protect minors. The CPPA was intended to protect minors from the harmful effects of virtual child pornography. The COPA was intended to protect minors from pornography currently available commercially on the World Wide Web. Neither statute currently is being enforced, despite their laudable motives to protect children. This Article will examine both statutes and both U.S. Supreme Court decisions. It also will predict the future of COPA and will recommend further congressional action to protect minors from the harmful effects of both virtual and real child pornography, and from accessing pornography on the Web.

2. CPPA AND ASHCROFT V. FREE SPEECH COALITION

   Congress has repeatedly enacted legislation banning sexual exploitation of children. Finding that child pornography was both highly organized and profitable, and exploited children, (12) Congress in 1977 passed the Protecting of Children Against Sexual Exploitation Act. (13) This Act criminalized knowingly using a minor younger than age sixteen to engage in sexually explicit conduct to produce a visual depiction. (14) In 1984, Congress passed the Child Protection Act, (15) which expanded the 1977 Act and did away with the previous Act's requirement that the prohibited material be considered obscene under Miller v. California. (16) The 1984 Act also raised the minor's age from sixteen to eighteen and included not-for-profit trafficking. (17) This law was again amended in 1986 by the Child Sexual Abuse and Pornography Act, which banned the production and use of advertisements for child pornography and created civil liability for personal injuries to children from the production of child pornography. (18)

   The Child Protection and Obscenity Enforcement Act of 1988 made it unlawful to use a computer to transport, distribute, or receive child pornography. (19) The Child Protection Restoration and Penalties Enhancement Act of 1990 prohibits the knowing possession of visual depictions of a minor in sexually explicit conduct. (20) In 1994, Congress again amended federal law concerning child pornography to allow restitution to victims. (21) All of the above federal legislation criminalized the use of actual children in the production of child pornography.

   Changes in technology often leave the legal system straggling to keep up. In 1996, Congress passed the CPPA to ban computer-generated images of child pornography. (22) The CPPA bans sexually explicit depictions, including any photograph, film, video or computer-generated image or picture, that appear to be minors, (23) and visual depictions that are "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression" that they contain sexually explicit depictions of minors. (24) "Sexually explicit" is defined as "actual or simulated sexual intercourse, ... bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals or pubic area." (25) There is an affirmative defense if an actual adult was used in production, and the material was not promoted, described, or distributed in such a way as to give the impression that it contained a visual depiction of a minor engaged in sexually explicit conduct. (26)

   The CPPA's constitutionality was immediately challenged by plaintiffs including the Free Speech Coalition, which is a trade association that defends First Amendment rights against censorship, the publisher of a book dedicated to the education and expression of nudism, and individual artists whose works include nude and erotic photographs and paintings. Finding that the plaintiffs had standing, the district court in Free Speech Coalition v. Reno found that the CPPA was not an improper prior restraint of speech because it is content neutral and clearly advances important and compelling governmental interests. (27) The court further held that the CPPA is not overbroad, because it specifies only materials that do not use adults, and is not unconstitutionally vague, as it clearly and specifically defines the prohibited conduct and gives sufficient guidance to a person of reasonable intelligence as to what it prohibits. (28) The government was granted summary judgment. (29)

   In 1999, a majority of the Court of Appeals for the Ninth Circuit, while reversing the district court's ruling on the Act itself, affirmed the parties' standing to challenge the constitutionality of the CPPA's language "appears to be [a minor]" and "conveys the impression." (30) Reviewing the constitutionality of the statute itself de novo, the Ninth Circuit ruled that the First Amendment prohibits Congress from enacting a statute that criminalizes the generation of images of children engaged in explicit sexual conduct, and that the district court erred in finding a compelling state interest served by the statute, because actual children were not involved. (31) The appeals court held that the language "appears to be [a minor]" (32) and "conveys the impression," as found in the CPPA, (33) are unconstitutionally vague and overbroad. (34)

   The Ninth Circuit dissent in Free Speech Coalition v. Reno would have found the CPPA constitutional. (35) The dissent stated that the majority improperly suggested that preventing harm to depicted children is the only legitimate justification for banning child pornography. (36) The U.S. Supreme Court endorsed other justifications relied on by Congress when it passed the CPPA. (37) According to the dissent, new justifications could be relied upon, as long as they advance the goal of protecting children. (38) The dissent also disagreed that the CPPA is unconstitutionally vague, as key phrases are defined. (39)

   The First, (40) Eleventh, (41) Fourth, (42) and Fifth (43) Circuit Courts agreed with the dissent in the Ninth Circuit. In 1999, before the Ninth Circuit's decision, the First Circuit in United States v. Hilton held that the CPPA survives constitutional challenge as it is neither vague, nor a substantial infringement on protected expression. (44) After the Ninth Circuit's decision, the Eleventh Circuit upheld a conviction under the CPPA, affirming a district court's decision that the statute is constitutional. (45) In 2000, the Fourth Circuit also concluded that the CPPA passed constitutional muster, affirming a district court's decision. (46) In 2001, the Fifth Circuit confirmed a defendant's sentence and conviction, finding that virtual child pornography, like "real" child pornography, is not entitled to First Amendment protection, and that the CPPA is not overbroad. (47)

   On April 16, 2002, the U.S. Supreme Court in Ashcroft v. Free Speech Coalition agreed with the Ninth...