## Facts

- Congress enacted the Child Pornography Prevention Act of 1996 (CPPA) expanding federal child-pornography prohibitions beyond depictions of real minors.
- The CPPA defined “child pornography” to include sexually explicit visual depictions that “appear to be” of a minor and depictions marketed in a way that “conveys the impression” they show a minor.
- The challenged provisions targeted “virtual” images, including computer-generated depictions and images using youthful-looking adults, produced without using actual children.
- A trade association for the adult-entertainment industry and other speakers brought a facial First Amendment challenge, alleging the provisions were overbroad and vague and chilled lawful expression.
- The district court granted summary judgment to the government.
- The Ninth Circuit reversed, holding the challenged provisions facially invalid as substantially overbroad because they reached speech neither obscene nor involving exploitation of real children.

## Issues

1. Whether the CPPA provisions banning sexually explicit depictions that “appear to be” of a minor and depictions marketed to “convey the impression” of depicting a minor violate the First Amendment by prohibiting a substantial amount of protected speech.
2. Whether Congress may extend the category of unprotected child pornography to virtual depictions that do not involve actual minors in their production.
3. Whether liability keyed to marketing or presentation (“conveys the impression”) unconstitutionally expands criminal prohibition beyond the depiction’s content and outside recognized unprotected categories.

## Decision

- The Supreme Court affirmed the Ninth Circuit in a 6–3 decision.
- The Court held that 18 U.S.C. §§ 2256(8)(B) (“appears to be”) and 18 U.S.C. §§ 2256(8)(D) (“conveys the impression”) are facially overbroad and unconstitutional.
- The Court concluded the provisions reached substantial amounts of lawful speech, including works with serious literary, artistic, political, or scientific value.
- The Court rejected the government’s asserted justifications (deterring pedophile interest and easing enforcement) as insufficient to suppress protected speech not falling within established unprotected categories.

## Legal Principles

- Child pornography involving actual minors may be prohibited based on the government’s interest in preventing harm to children used in the production process; that rationale does not apply to depictions produced without real children.
- Obscenity may be prohibited only within the confines of the obscenity doctrine; sexually explicit expression outside obscenity remains protected even if offensive.
- The government may not suppress lawful speech as a means to suppress unlawful speech.
- A law is facially invalid for overbreadth when it prohibits a substantial amount of protected expression relative to its legitimate sweep.
- Criminalizing sexually explicit material based on how it is advertised or described, rather than what it depicts, risks sweeping in protected speech and supports an overbreadth finding.

## Conclusion

The Court invalidated the CPPA’s bans on depictions that “appear to be” minors and on material marketed to “convey the impression” of depicting minors, holding that the First Amendment does not permit expanding unprotected child pornography beyond depictions involving real children or beyond established obscenity limits.


Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002)