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DavidMehlFirstPaper 5 - 20 Apr 2010 - Main.DavidMehl
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Ready for comments. | | | Historical Background | |
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< | In Miller v. California, the Supreme Court held that lewd and obscene speech does not receive First Amendment protection because obscenity serves no crucial role in the exposition of ideas and has little social value. The Court developed a balancing test that asks: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work taken as a whole, lacks serious literary, artistic, political or scientific value. Material that ‘passes’ the Miller test is thus deemed to be obscene and is not afforded First Amendment protection.
In 1982, in New York v. Ferber, the Court held that child pornography involving actual children is a category of speech not protected by the Constitution and that such depictions may be prohibited even if they are not obscene. Although Ferber focused on production and distribution of child pornography, in 1990, the Court in Osborne v. Ohio upheld an Ohio statute criminalizing mere possession of child pornography. | >
> | In Miller v. California, the Supreme Court held that lewd and obscene speech does not receive First Amendment protection because obscenity serves no crucial role in the exposition of ideas and has little social value. The Court developed a balancing test that asks: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work taken as a whole, lacks serious literary, artistic, political or scientific value. Material that ‘passes’ the Miller test is thus deemed to be obscene and is not afforded First Amendment protection. In 1982, in New York v. Ferber, the Court held that child pornography involving actual children is a category of speech not protected by the Constitution and that such depictions may be prohibited even if they are not obscene. The Court in Osborne v. Ohio criminalized the mere possession of child pornography. | | | In 1996, Congress passed the Child Pornography Prevention Act. The CPPA expanded the definition of child pornography by criminalizing the creation of VCP. Under the CPPA, images that appeared to depict children but do not, including images of youthful-looking adults or images that are computer-generated, were illegal. The CPPA also included a “pandering” provision that stated that any visual image that has been promoted in a manner that “conveys the impression” that a minor engaging in sexually explicit conduct is depicted, is illegal. | |
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< | After the Supreme Court found the CPPA unconstitutional on numerous grounds in Ashcroft v. Free Speech Coalition, Congress then came up with The PROTECT Act (Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today). It is built on the same platform as the CPPA with some important distinctions that avoid the Constitutional pitfalls of the CPPA. Even so, in United States v. Williams, the Eleventh Circuit held that the pandering provision of the PROTECT Act was overbroad and impermissibly vague because it criminalized the speech of someone who touts material as child pornography even when in fact it is either nonexistent or not pornographic. The Supreme Court reversed and found the PROTECT Act to be Constitutional. Justice Scalia reasoned as follows: A statute is facially invalid if it prohibits a substantial amount of protected speech. However, because the Court in Miller and Ferber had already proscribed the material involved in the speech – the child pornography - the pandering provision is Constitutional because it targets the “collateral speech”- the pandering which introduces this contraband material into the child pornography distribution network. First Amendment protection only extends to lawful speech; offers to engage in illegal transactions are categorically excluded from First Amendment protection. | >
> | The Supreme Court found the CPPA unconstitutional on numerous grounds in Ashcroft v. Free Speech Coalition. Congress then came up with The PROTECT Act (Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today). Built on the same platform as the CPPA, it contains some important distinctions that avoid the Constitutional pitfalls of the CPPA. The Supreme Court found the PROTECT Act to be Constitutional. Justice Scalia reasoned as follows: A statute is facially invalid if it prohibits a substantial amount of protected speech. However, because the Court in Miller and Ferber had already proscribed the material involved in the speech – the child pornography - the pandering provision is Constitutional because it targets the “collateral speech”- the pandering which introduces this contraband material into the child pornography distribution network. First Amendment protection only extends to lawful speech; offers to engage in illegal transactions are categorically excluded from First Amendment protection. | | | Scalia points out that VCP which is marketed as VCP will not be proscribed by the PROTECT Act. The Act proscribes only pandering where the intention is to cause another to believe that the material is contraband. Scalia claimed that Williams was not overruling Free Speech Coalition. Both decisions agreed that the CPPA’s prohibition on creation and distribution of VCP was a violation of First Amendment rights. As a result, one who creates VCP – even if it is indistinguishable from real child pornography - and markets it as VCP is afforded First Amendment rights. |
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