Ashcroft v. Free Speech Coalition: Can We Roast the Pig Without Burning Down the House in Regulating "Virtual" Child Pornography?
Abstract
The First Amendment’s guarantee of free speech is not limitless. The Supreme Court has carved out a number of categories of expression that do not receive its protection. Child pornography is one of these categories of expression that fall outside the protection of the Constitution and may be lawfully prohibited. Despite its prohibited status the creation and distribution of child pornography continues to be a growing national problem. The adverse effect it has on society is without doubt. Accordingly, the United States Congress has made repeated attempts to better enable law enforcement to strike at child pornography distribution networks. In 1996, Congress took the next step by passing the Child Pornography Prevention Act of 1996 (CPPA). The CPPA expanded the definition of child pornography to include “virtual” child pornography. It also expanded the definition to include material that is pandered as child pornography. Several states have enacted similar statues aimed at prohibiting these types of child pornography. Congress pointed to the negative secondary effects of “virtual” child pornography as justification for its prohibition. Unfortunately, this expansion of the definition of child pornography runs afoul of the First Amendment guarantee of freedom of speech. In Ashcroft v. Free Speech Coalition, the U.S. Supreme Court considered the constitutional validity of the portion of the CPPA that expanded the definition of child pornography to include images created using no actual children. In striking down the statute, the Supreme Court held that the “appears to be” and “conveys the impression” sections of the CPPA were unconstitutional infringements upon the First Amendment. This Note will explore the struggle in the area of child pornography between the state’s legitimate interest in the protection of children and the First Amendment’s guarantee of free speech. Part II provides a brief history of the free speech doctrine as related to the area of child pornography prevention. Part III discusses the circuit split, as well as the facts, procedural history, and the holding of the Supreme Court.20 Finally, Part IV will examine the effect of the Court’s interpretation of the statute as unconstitutional, explain why the decision was correct, and look at Congress’ recent efforts at new legislation to replace the CPPA. (Author Introduction)
Description
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Keywords
child abuse, child pornography, law, policy
Citation
Kennedy, R. P. (2004). Ashcroft v. Free Speech Coalition: Can We Roast the Pig without Burning down the House in Regulating Virtual Child Pornography. Akron Law Review, 37,(2),379-415.