First Amendment Limits: Child Pornography

The First Amendment to the U.S. Constitution states, in part, "Congress shall make no law ... abridging the freedom of speech."

This language tells us that the First Amendment freedom of speech begins as a prohibition on Congress. Specifically, the First Amendment prohibits Congress from passing laws infringing on the right to free speech.

Through case law and the passage of the Fourteenth Amendment, the U.S. Supreme Court has extended the First Amendment to governmental action of any kind and at any level. In this context, we commonly refer to government action as state action and government interest as state interest.

So, the First Amendment prohibits government restrictions on speech. This protection generally applies to government regulation of private speech. It doesn’t constrain government restrictions on government speech. And it doesn’t typically apply to speech restrictions imposed by private entities.

Free Expression

The Court has also determined that speech protected by the First Amendment can include expressive conduct like the written word, performances, and symbolic action or inaction. For example, messaging on a t-shirt and refusing to salute the American flag are protected speech or expression.

The right to free speech, however, isn’t absolute. The Supreme Court has established several circumstances where government regulation of speech is consistent with the First Amendment.

Legal Standards of Review

The Court has also developed frameworks and legal standards for determining whether a speech restriction violates the First Amendment. Their application varies depending on the circumstances.

However, they generally weigh the state interest served by the restriction against the First Amendment rights burdened by it. Strict scrutiny is the most difficult standard to satisfy. It requires the restriction to serve a compelling state interest in the least restrictive manner available.

Unprotected Speech

Similarly, the Supreme Court has established several categories of speech that don’t enjoy First Amendment protection. This means the state can generally restrict and/or penalize certain types of expression without violating the First Amendment.

Categories of unprotected speech established by the Supreme Court include:

• Fighting words
• True threats
• Defamation
• Obscenity
• Child pornography

Whether the material is obscene turns on tests that have been established and revised over time by the Supreme Court.

In 1973, the Court established the current standard for obscenity. It did so in Miller v. California. A determination of obscenity under the Miller test depends on whether the average person finds that the material as a whole:

• Appeals to prurient interests according to contemporary adult community standards
• Depicts or describes sex or sexual conduct in a patently offensive manner according to contemporary adult community standards
• Lacks serious artistic, political, literary, or scientific value

The Court has described prurient interest as “a shameful or morbid interest in nudity, sex, or excretion.” And it has defined material appealing to prurient interests as that which tends “to excite lustful thoughts.”

Child pornography, on the other hand, doesn’t need to meet obscenity standards to be considered child pornography.

What Does the First Amendment Have to Do with Child Pornography?

In general, pornography refers to sexually explicit or erotic material. And it’s generally protected by the First Amendment unless it is obscene or involves children.

Evolving terminology acknowledges that sexually explicit materials depicting children should be classified as sexual abuse materials. Furthermore, the Department of Justice and victim advocacy organizations like RAINN have begun to call child pornography "child sexual abuse material."

Beginning in 1982, the Supreme Court recognized that the First Amendment should not protect child sexual abuse materials (child pornography) as free speech.

New York v. Ferber

In 1982, the Supreme Court established that the First Amendment doesn’t protect child pornography. The New York v. Ferber case described child pornography as photos or recordings that visually depict minors engaged in sex acts or exposure of their genitals.

The Court reasoned that children’s participation in producing such materials exploits and harms them. The state has an interest in protecting children’s psychological and physical well-being, so the state may ban the use of minors for such purposes.

States may also ban the distribution, exhibition, and advertisement of child pornography. This is necessary for the state to protect the children fully.

The Court explained there’s no need for a legal case-by-case analysis in child pornography matters because “the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake.”

However, the Court did caution that child pornography is a form of expression. Therefore, restrictions must carefully and clearly define prohibited conduct. Likewise, the reach of any child pornography law must be limited to the visual depiction of sex acts by children under a certain age.

The Court’s decision was unanimous. But several Justices wrote concurring opinions. Justice Brennan’s concurrence argued that material with serious scientific, educational, or literary value should be exempted. Justice O’Connor contended that such material shouldn’t be exempted.

Osborne v. Ohio

In 1990, the Court reviewed a state law criminalizing private viewing or private possession of child pornography. Osborne v. Ohio dealt with someone found to have child pornography in their home.

The Court had earlier determined in Stanley v. Georgia that the government can’t restrict the possession of obscene material in the privacy of one’s home. However, the Osborne Court raised an important distinction between child pornography and obscenity.

The opinion explained that the state's interest in protecting children was far greater than its “paternalistic interest” in protecting adult minds from obscenity. As a result, the Court upheld the Ohio law.

Children’s Access to Sexually Explicit Material

The rationales for prohibiting child pornography are different from the state’s interest in protecting minors from exposure or access to sexually explicit material.

The Court has recognized the state’s compelling interest in protecting children from exposure to indecent or obscene material. However, the Court has repeatedly affirmed that blanket restrictions on material that’s obscene for children but not adults are constitutionally suspect. This is because such restrictions burden the adults’ First Amendment rights.

Reno v. American Civil Liberties Union

In the landmark 1997 Reno v. American Civil Liberties Union (ACLU) matter, the Court struck down some provisions of the federal Communications Decency Act. One provision banned “interactive computer service” used to show indecent content “in a manner available” to minors.

This prohibition essentially banned all indecent material from all sites except those that limited access to adults. This restriction was intended to prevent children’s exposure and access to harmful expression or speech, but it burdened the First Amendment rights of adults.

So, it won’t be permitted if less restrictive means, that are at least as effective, are available. As the Reno Court held, the government may not "reduce the adult population" to only what is fit for children.

Congress later passed the Child Online Protection Act (COPA). COPA prohibited websites designed to generate a profit from posting “material that is harmful to minors.”

ACLU v. Reno

In ACLU v. Reno, the Third U.S. Circuit Court of Appeals reviewed a First Amendment challenge to COPA. It held that COPA’s harmful-to-minors standard posed an unconstitutional burden on protected speech.

This is because the standard was based on contemporary community standards. However, websites can’t restrict access based on visitors' locations. Thus, adhering to COPA meant that websites would have to base their content on the community's standards most likely to be offended by it.

Ashcroft v. ACLU

The Supreme Court later vacated and remanded the Third Circuit’s ACLU v. Reno decision in Ashcroft v. ACLU. The nation's highest court reviewed COPA’s reliance on community standards for evaluating whether content is harmful to minors. The Court held that reliance alone didn’t mean COPA was substantially overbroad for First Amendment purposes.

United States v. Playboy Entertainment Group

Also, in 2000, the Supreme Court decided United States v. Playboy Entertainment Group. In this case, the Court reviewed a federal content-based restriction. The legislation aimed to safeguard minors from exposure to specific content due to cable TV signal bleed.

The Court applied strict scrutiny and invalidated the law. It reasoned, “Even upon the assumption that the government has an interest in substituting itself for informed and empowered parents, its interest is not sufficiently compelling to justify this widespread restriction on speech.”

Ashcroft v. Free Speech Coalition

In 2002, the Court reviewed provisions of the federal Child Pornography Prevention Act of 1996 (CPPA). In Ashcroft, Attorney General, et al. v. Free Speech Coalition, the Court determined that the Act’s ban on pictures that weren’t produced with actual children was unconstitutional. The Act prohibited:

• Computer-generated child pornography
• Paintings with child pornography
• Pornographic pictures of adults who appeared to be children

Justice Kennedy delivered the majority opinion of the Court, joined by Justices Stevens, Souter, Breyer, and Ginsburg.

The Court explained that prohibitions on child pornography that depict actual minors are constitutional. This is because they restrict the expression's production, not the content. Conversely, the CPPA targeted content.

Still, the state sought to justify the restrictions. It claimed pedophiles could encourage children to engage in sex acts by showing them the prohibited materials. They also suggested that the prohibited materials might whet the pedophiles’ sexual appetite and increase the sexual abuse and sexual exploitation of children.

The Court rejected these arguments. It reasoned that the state can’t “constitutionally premise legislation on the desirability of controlling a person’s private thoughts” or “prohibit speech because it increases the chance an unlawful act will be committed” at some unknown future time.

The state also tried to rationalize the prohibition on virtual child pornography. It contended that technological advances make it difficult to distinguish between content that uses actual minors and content that doesn’t.

The Court struck down this argument with a fundamental First Amendment principle: “The Government may not suppress lawful speech as a means to suppress unlawful speech.”

Ashcroft v. Free Speech Coalition also illustrated another key point. Otherwise, obscene material with serious political, scientific, literary, or artistic value is considered non-obscene expression protected by the First Amendment.

However, child pornography with any such serious value will still be considered unprotected child pornography if the CPPA were upheld.

For example, it would prohibit pictures in a medical journal. It would also prohibit documentaries depicting the horrors of sexual abuse of children and Oscar-winning movies like “American Beauty.” It would even criminalize a “Romeo and Juliet” film that depicted teenage lovers’ sexual activity.

Justices Rehnquist and Scalia joined in a dissenting opinion. They contended the CPPA should be interpreted to apply only to those "computer-generated images that are virtually indistinguishable from real children engaged in sexually explicit conduct."

The PROTECT Act

In 2003, Congress passed the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act, codified at 18 U.S.C. § 2252A(a)(3)(B). The Act, in part, classified computer-generated child pornography as a form of prohibited child pornography even if it was produced without actual children.

United States v. American Library Association, Inc.

That same year, the Court decided United States v. American Library Association, Inc. In this case, the Court reviewed the Child Internet Protection Act (CIPA). A plurality of the Court reversed a district court’s determination and upheld the federal statute.

Essentially, CIPA required libraries that receive federal funding to provide its patrons with internet access to install certain filtering software. The required software had to both block access to child pornography and obscene material and also prevent children from accessing material harmful to them.

The four-justice plurality held that CIPA didn’t violate the First Amendment rights of adult patrons. It explained that public library internet access is neither a designated nor a traditional public forum. And strict scrutiny doesn’t apply when evaluating the constitutionality of CIPA’s filter requirement.

United States v. Williams

In United States v. Williams, the Court upheld the constitutionality of a pandering provision in the PROTECT Act. The provision in question criminalized knowingly promoting, soliciting, distributing, presenting, or advertising “any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material” is child pornography.

Williams solicited child pornography over the internet from an undercover law enforcement official. He was charged with pandering under the Act. The official had no actual child pornography. Williams claimed the First Amendment protected his actions.

The Court rejected Williams’ contention. It explained that propositions to engage in illegal transactions aren’t entitled to First Amendment protection.

Similarly, advertising virtual child pornography as depicting actual children even though it doesn’t is a violation of the Act. Accordingly, one who tries to solicit child pornography that doesn’t actually exist is still engaging in punishable conduct that’s excluded from First Amendment protection.

These multi-faceted Supreme Court cases highlight some of the challenges associated with regulating child pornography. Likewise, restricting children’s access to indecent material requires a delicate balance between adults’ First Amendment rights and the state’s compelling interest in protecting children.

As we’ve seen, our increasingly digital environment raises more considerations, threats, and rights that will undoubtedly continue to shape this body of case law.