Ashcroft v. Free Speech Coalition: How Can Virtual Child Pornography Be Banned Under the First Amendment?

Abstract

In Ashcroft, the Court struck down portions of the Child Pornography Protection Act (CPPA) that criminalize images that "appear[] to be" of minors engaged in sexually explicit activity for overbreadth.  Specifically, the Court found that the statute did not require the material to be obscene and yet the state had not shown a compelling state interest in regulating nonobscene sexual speech. The result is that Congress can only regulate virtual child pornography if it is obscene. However, lawmakers remain concerned that the obscenity doctrine will not be sufficient to stop the creation of virtual child pornography.

This note will examine the recent Court decision in Ashcroft. Part I will look at the background and context of the CPPA. Part II will look at the Court's reasoning and offer alternative ways of viewing the CPPA. Part III will look at the reaction of Congress to the Court's decision, its amendment to the CPPA, and whether that amendment will pass constitutional muster. Finally, Part III will also make specific policy recommendations in line with the Court's reasoning in hopes of answering the question "how can virtual child pornography be banned under the First Amendment?"