Taking Free Speech Seriously: The United States Supreme Court and Virtual Child Pornography

Although always believing that the United States Supreme Court should invalidate the portion of the Child Pornography Protection Act (CPPA) that proscribes the dissemination of any image "that appears to be ... a minor engaging in sexually explicit conduct, I seriously doubted that it would do so. For one thing, the Court granted certiorari in Free Speech Coalition v. Reno, a case in which the Ninth Circuit had invalidated the statute. Having previously denied certiorari in a case in which the lower courts had upheld the statute, there was good reason to believe that the Court intended to reverse the Ninth Circuit. Fortunately, that did not happen.

Apart from the procedural posture of the case, a cursory glance at the equities appears to favor the statute. The value of exploiting the sexuality of children certainly appears to be de minimus. Furthermore, the government made at least a surface case that virtual child pornography can be harmful to children. With that kind of a balance, one might have anticipated a willingness to accept the invitation of Judge Ferguson of the Ninth Circuit to create a new category of unprotected speech called "virtual child pornography. Though undoubtedly tempted, the Court rejected going down that wrong road.

In this paper, I will focus on both the importance and correctness of the Supreme Court's decision in Ashcroft v. Free Speech Coalition.