The Emperor's Clothes at the Supreme Court:
Ashcroft v. Free Speech Coalition

By J. D. Obenberger, Attorney at Law
© MMII J. D. Obenberger, All Rights Reserved
Written for Klixx Magazine and to be Published in its July, 2002 edition, available June, 2002

On April 16, 2002, the United States Supreme Court handed down its long-awaited decision in "the Virtual Child Porn case", Ashcroft v. Free Speech Coalition. The Supreme Court considered and rejected as unconstitutional two definitions of "child pornography" that were contained in Section 2256 of Title 18, the Criminal Code.

What the Supreme Court Decided

Those two definitions which the court struck down had the effect of including within the sweep of the federal child porn laws images depicting what appeared to be "a minor engaging in sexually explicit conduct" [Para. (8) (B)] and images "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct" [Para. [(8)(D)] [emphasis added]; The effect was to prohibit distribution or possession of these kinds of images under serious statutes which impose a penalty of up to fifteen year imprisonment on the first offense for distribution, and up to five years imprisonment on the first offense for possession. ("Sexually explicit conduct", as used in the federal pornography statutes, generally includes masturbation, together with virtually all other sexual practices; In particular respect to minors, it includes lewd display of the genitals.)

This case did not involve issues concerning real child pornography. Ashcroft involved images created purely by computer without any use of the images of real children ("virtual child pornography") and those depictions using adults portrayed or presented as minors ("apparent child pornography"). The Free Speech Coalition did not challenge those definitions which criminalize images made, even in part, with images of real children, and so, the penalties attached to child pornography in general and "morphed" images created as composites with any images derived from real minors, remain on the books undisturbed by the ruling. It is absolutely critical to understand that, Justice Department rhetoric notwithstanding, this decision has utterly no effect whatsoever on the validity or enforceability of the federal child pornography statutes as they proscribe and most seriously punish the distribution or possession of any pornographic images made from real underage models or performers (even in part).

It was the determination of the Supreme Court that, at least in the case of adolescents, Congress cannot, without more, make it a serious crime to distribute or possess images which appear to depict minors engaged in sexual practices or presented as though they do, unless actual minors are used in some fashion in the imagery; Without more, this cannot form the basis of a federal crime consistent with the free speech guarantees of the First Amendment because it amounts to a prohibition of the graphic expression of an idea..

The Significance of Free Speech Coalition

It is beyond serious dispute that Ashcroft v. Free Speech Coalition is a case of serious value in the development of First Amendment jurisprudence. It falls squarely within the grand tradition established by the Supreme Court in the best cases dealing with Free Speech in the second half of the twentieth century. It ultimately and most importantly stands for the general proposition that ideas - and the expression and graphic depiction of mere ideas - cannot be outlawed without more - even if the idea in question is adolescent sexuality: "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought." Ashcroft v. Free Speech Coalition, No.00-795, Slip Opinion at 15, April 16, 2002. Mr. Justice Kennedy writing for the Court. Images that do not involve the abuse of real minors cannot be banned as child pornography just on account of their theme.

It is important to understand the Free Speech Coalition is only peripherally and incidentally about porn: This is a case that is far, far, more about Hollywood than it is about Porn Valley: The court displayed an abundance of concern about the chilling and repressive effects of these definitions with respect to mainline Hollywood moves, stage plays and the like. In fact, the most obvious and clear-cut contrast between the reasoning of the majority and that of the dissenters is seen in their differing senses of how credible and realistic they perceived that chilling effect to be on mainstream dramatic presentations. To the extent that the court made passing commentary about porn, it was with disdain. Despite the obvious effects that this decision may or will have in marketing in the adult entertainment arena, that's just not what drove the decision in this case.

The acute focus of the majority's Opinion, authored by Justice Kennedy, is whether Congress may criminally proscribe the graphic depiction of themes involving adolescent sexuality without respect to its serious value or prurience, consistent with the First Amendment. The inquiry emerging from that focus was sharpened by the serious fifteen-year penalty attached to violation of the statute, a matter that certainly adds credibility to assertions of a chilling effect.

Several important principles emerge from the Opinion.

  1. There is no longer a serious threat of prosecution under the federal child pornography statutes for image content depicting adults in the role of minors or characterized as such. That being said, it's my view that to market adult pornography as child pornography is and will remain abundantly stupid. Suppose a minor used ID belonging to another, fake ID, or who otherwise managed to get herself or himself used as an Internet model in images appearing on a website; Any webmaster's contention in a child pornography prosecution that he reasonably believed the model to be of age would immediately be met in refutation by any competent prosecutor with the site's own hype and the jury would invariably be led to question whether the webmaster was dishonest in promoting his site or whether he was dishonest in his testimony before the court in claiming he believed the picture to depict an adult. Do not forget that a site so promoted may also be prosecuted under more traditional obscenity statutes, an emphasis on the extreme youth of the persons portrayed being a matter that may go to both prurience and patent offensiveness.
  2. Against a backdrop of fairly recent cases suggesting that erotic expression lies only in the extreme margin of the protection of the First Amendment, (See for example Barnes v. Glenn Theatre, 501 U.S. 560, holding that nude dancing is "within the outer perimeters of the First Amendment, though . . . only marginally so") it is an encouraging matter to those concerned with Liberty in American society that a majority of the Supreme Court entertained a facial overbreadth challenge to the law, that it resisted any temptation to fix Congress's mistake by construing the statutory language with a constitutionally valid gloss limiting the ambit of the statute, and notwithstanding the erotic nature of the expression at issue, that it applied an exacting and full First Amendment scrutiny under Miller to the language.
  3. The Court's reasoning was fundamentally rooted in concepts articulated in Miller v. California, 413 U.S. 15 (1973) and the three-part assessment that Miller requires as a precondition for a determination that an erotic work lies outside the protection of the First Amendment as obscenity. In particular, it is encouraging to note the court's observations that the statutory language was infirm because it criminally proscribed elements of a work in isolation rather than in consideration of the work as a whole, without regard to the social value of the work, and without any consideration of whether it amounted to an "affront" to the values of a community. Especially the last of these factors suggests the continuing vitality of the "community standards" factor under Miller in the Internet era, and offers a suggestion or hint that when the court decides Ashcroft v. ACLU later this term, it is unlikely to abandon that factor in determining what is obscene on the Internet. (It must be importantly noted that the court shows no sign at all - and much indication to the contrary - that it would have even approached the Miller analysis had it been confronted with images of actual minors in a sexual context; To the contrary, it adhered to the narrow reading of New York v. Ferber, 458 U. S. 747 (1982) which categorically excludes from the protection of the First Amendment images depicting actual minors in a lewd context, because these are depictions of abuse with little potential of social value.)
  4. What particularly is particularly interesting about Free Speech Coalition is its frank acknowledgement that adolescent sexuality is a very real part of the human landscape and that it presents a legitimate and valuable topic for the expressive arts that deserves protection against censorship. The decision alludes to numerous well-known works of serious value treating of adolescent sexuality, from a 1966 film version of Romeo and Juliet to American Beauty. In an era in which record producers shroud parts of a classic late Sixties Blind Faith rock album cover featuring a pubescent female model, apparently because of an abundance of fear concerning child pornography allegations, the Supreme Court describes the numerous American jurisdictions in which marriage and sex before the age of eighteen is lawful, notes that adolescents do have sex before the lawful age, and observes that "The statute proscribes the visual depiction of an idea-- that of teenagers engaging in sexual activity--that is a fact of modern society and has been a theme in art and literature throughout the ages." The Supreme Court had the courage to articulate the truth and to defend the expressive Liberty of commentary on that area of the human condition, an area of social value and utility, despite what has become politically correct or incorrect in contemporary American society. The Supreme Court told Congress in this decision that the emperor - or in this case the Congress - is wearing no robe: We do not eliminate adolescent sexuality by banning it from stage and screen and neither it, nor the many problems associated with it go away by imposing a dramatic media blackout.

J. D. Obenberger is an attorney with J. D. Obenberger and Associates, a Chicago firm practicing adult entertainment and Internet law, and free speech law generally and is presently engaged in the criminal defense of obscenity. His office represents adult websites and content providers nationally and internationally as well as gentlemen's clubs, bookstores, and other real world businesses in the Chicago area. He is a former Captain of the United States Army Judge Advocate General's Corps. He regularly writes on topics of interest to the adult Internet, and is a frequent and energetic speaker in the United States and Canada concerning free speech law. He can be reached at 312 558-6420. He may be emailed through the firm's website, http://www.xxxlaw.net. This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement, consent to nothing, but make no resistance, and contact a lawyer immediately.