Child Pornography and the Baby-In-The-Bathtub Cases

[MechaBlade]

That's the legal basis.

I disagree that that's the legal basis.

 

[Karen Kraft]

I disagree with the OP that porn isn't obscenity and that obscenity is based on whether or not it appeals to perverts. It's based on whether it offends little old ladies and baptists.

[snip]

If that were the case, we would all be in trouble.

As for the OP, it was not opinion, it was a statement of current law in American on the subject, Mechy.

 

[MechaBlade]

If that were the case, we would all be in trouble.

We are in trouble.

As for the OP, it was not opinion, it was a statement of current law in American on the subject, Mechy.

Not even Supreme Court justices can agree on what the laws are. I prefer my interpretation.

 

[Karen Kraft]

We are in trouble.


Not even Supreme Court justices can agree on what the laws are. I prefer my interpretation.

The Supreme Court is more clear on this subject than nearly any other.

See, for example:

""VIRTUAL CHILD" PORNOGRAPHY ON THE INTERNET: A "VIRTUAL" VICTIM?
Child pornography is an exception to First Amendment freedoms because it exploits and abuses our nation's youth.1 The latest trend in that industry is "virtual child" pornography. "Virtual child" pornography does not use real children or images of real identifiable children. When the object of desire is not a child, but merely a combination of millions of computer pixels crafted by a skilled artist, can the government ban this allegedly victimless creation?2
Introduction

¶1 Congress enacted the Child Pornography Prevention Act of 1996 ("CPPA") to fight the ongoing battle against the sexual exploitation of children.3 However, Congress drafted the CPPA very broadly, and with the advancement of technology the statute may encroach on First Amendment rights to free speech.4 Most people would agree that the use of actual children in the production of sexually explicit videos or photographs is grotesque child abuse. The question remains whether the government may criminalize the production and possession of "virtual child" pornography if no child is used in the production of pornography and the images are completely fictional. In Ashcroft v. The Free Speech Coalition, the U.S. Supreme Court held that the government may not criminalize such action because the production of "virtual child" pornography does not sexually abuse an actual child.5 The Court rejected the government's argument that "virtual child" pornography encourages pedophiles to abuse children. This argument is the intellectual equivalent of a claim that Romeo and Juliet encourages teenagers to kill themselves and should be banned from high school reading lists. More people would find greater social value in Romeo and Juliet than in "virtual child" pornography, but if there is some social or artistic value to a piece of work, it should be protected under the freedom of speech clause of the First Amendment.6 "Virtual child" pornography must be distinguished from actual child pornography in order to be protected under the First Amendment. The Supreme Court held the CPPA to be unconstitutional by making the distinction between "virtual" and actual child pornography and by doing so, expanded the field of free speech.7

Ashcroft v. The Free Speech Coalition and the Effect of the Decision

¶2 In Ashcroft v. The Free Speech Coalition, the Ninth Circuit held the CPPA to be unconstitutional, a decision contrary to those in four other circuits.8 The U.S. Supreme Court granted certiorari to resolve the circuit split and held that the speech prohibited by the CPPA's ban on "virtual child" pornography is distinguishable from actual child pornography.9 As written, §2256(8)(B) of the CPPA "abridges the freedom to engage in a substantial amount of lawful speech."10 The Court held that the ban on "virtual child" pornography could not be upheld because it was overbroad and unconstitutional under the First Amendment.

¶3 Unlike cases in other circuits, which involved violations of the CPPA, the Free Speech Coalition ("the Coalition") was an association of businesses in the adult-entertainment industry that produced and distributed adult material. The Coalition sought to overturn the law pre-enforcement, alleging that the "appears to be" and "conveys the impression" provisions of the CPPA are overbroad and vague.11 The CPPA expanded the ban on child pornography to include "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct."12 The Coalition argued that the CPPA was not supported by and goes beyond earlier decisions regarding obscenity and child pornography,13 extending to images that were not obscene or even necessarily offensive, but would prohibit "visual depictions, such as movies, even if they have redeeming social value."14 Additionally, these provisions would extend to items such as reproductions of paintings "depicting a scene from classical mythology" because the subject matter "appears to be" minors involved in sexually explicit conduct.15 Even when real children are not used (such as in "virtual child" pornography, a Hollywood movie using adult actors or a painting or cartoon involving sexually active minors), the CPPA would criminalize any depiction of sexually explicit situations involving what appear to be minors.16

¶4 The government presented four arguments supporting the CPPA's constitutionality. First, it claimed that "virtual child" pornography causes indirect harm to actual children,17 contending that the production of virtual pornographic images can lead to child abuse.18 The Court did not accept the government's indirect harm argument noting instead that "virtual child pornography is not 'intrinsically related' to the sexual abuse of children"19 and that "the causal link is contingent and indirect."20 The government relied on the Ferber case, but to no avail. The Free Speech Coalition court held that Ferber provides no support for the elimination of the distinction between actual and "virtual child" pornography.21 In fact, the court in Ferber recognized that some works might have societal value as an alternative means of expression.22

¶5 Second, the government argued that "virtual child" pornography could have the tendency to persuade the audience to commit crimes.23 The Court struck down this argument, stating, "the prospect of crime, however, by itself does not justify laws suppressing protected speech."24 Even if virtual pornography encourages unlawful acts, "it is not a sufficient reason for banning it."25 "The Government has shown no more than a remote connection between speech that might encourage thoughts or impulses and any resulting child abuse" therefore, the government may not prohibit the speech expressed in "virtual child" pornography based on this unsupported argument.26 The government can punish the perpetrators of sexual abuse of children and punish people who provide explicit materials to children in order to seduce or convince the child to engage in sexual activities.27 Also, the government may not prohibit adults from material protected by free speech in an attempt to prevent children from obtaining it.28

¶6 Third, the government argued that eliminating the market for actual child pornography was a sufficient reason for the Court to uphold the constitutionality of the law.29 The Court disagreed and noted that the market for actual child pornography might be eliminated if there was an alternative source.30 "If virtual images were identical to illegal child pornography, the illegal images would be driven from the market by the indistinguishable substitutes. Few pornographers would risk prosecution by abusing real children if fictional, computerized images would suffice."31 The Court held that virtual pornography does not necessarily promote the market for actual child pornography and recognized the distinction between the two.32 The Court stated that the government's market theory was unpersuasive especially because there is no crime involved in "virtual child" pornography since no children are used in the production of the work.33

¶7 Fourth, the government also argued that "virtual child" pornography could result in more difficult prosecutions of actual child molesters and pornographers since the virtual images look so realistic.34 The government wants to pass this difficulty on to the potential defendant through the statute's affirmative defense option.35 The defendant can rely on the affirmative defense if he can prove that the alleged child pornography was made using real persons who were adults and the material was not marketed as depicting children.36 The affirmative defense option raises other constitutional concerns because the defendant would have the burden of proving that the material was protected by the First Amendment. The Court noted that, "the Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected speech merely because it resembles the latter."37 All four of the government's arguments were unsuccessful and the Supreme Court held that the CPPA was unconstitutionally overbroad.38

Should "virtual child" pornography be prohibited?

¶8 The easiest and most popular answer would be yes. Parents arrested for the online sharing of explicit photos of their own children are just one example of how child pornography, though extremely socially unacceptable, is an already created and unfortunately booming market.39 Banning "virtual child" pornography might spur the actual child pornography market if the penalties are the same and it is more expensive to create virtual pornography. If "virtual child" pornography were allowed, the perpetrators of actual child pornography might think twice about exploiting real children since there would be a legal and victimless alternative. "If virtual images were identical to illegal child pornography, the illegal images would be driven from the market by the indistinguishable substitutes. Few pornographers would risk prosecution by abusing real children if fictional, computerized images would suffice."40 "

¶9 The sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people."41 The relevant primary objectives of the government are and should be to protect the children from sexual abuse and to prosecute those who abuse children.42 However, a ban on "virtual child" pornography is not a viable solution for preventing sexual abuse. "Virtual child" pornography could potentially shield children from abuse since pedophiles could use this alternative source to fulfill their desires, however repugnant. Since "virtual child pornography is not 'intrinsically related' to the sexual abuse of children," the government's interest in preventing the exploitation of children might be too tenuous to enforce.43 If the government's goal truly is to eliminate the sexual exploitation of children, the most logical solution would be to find a solution to the illegal market. It is evident that the current criminal statutes do not entirely deter child abusers.44 The Free Speech Coalition court believes that the alternative of legal "virtual child" pornography would reduce the production of actual child pornography because people could not be punished for the creation or possession of this substitute.45 In addition, stiffer penalties for actual child pornographers and sexual abusers would prevent more abuse than prohibiting "virtual child" pornography as an alternative to abuse.

New Legislative Attempts to Ban "Virtual Child" Pornography

¶10 The CPPA is unconstitutional as written, but new bills are attempting to re-write the legislation to make it an actionable criminal law without violating the First Amendment. New bills have been introduced in the House of Representatives and the Senate to amend the CPPA (now entitled the Child Obscenity and Pornography Prevention Act of 2002).46 Section 2256(8)(B) would be amended to read, "such visual depiction is a computer image or computer-generated image that is, or appears virtually indistinguishable from, that of a minor engaging in sexually explicit conduct."47 The new bills still maintain the prohibition of "virtual child" pornography even though the Supreme Court has indicated it is protected speech.

¶11 The bill maintains the affirmative defense to a charge of violating the law if "the alleged offense did not involve child pornography produced using a minor engaging in sexually explicit conduct or an attempt or conspiracy to commit an offense involving such child pornography."48 This affirmative defense could be used in the prosecution of an adult actor playing the role of a minor in sexually explicit situations in a Hollywood movie. The affirmative defense could also be used by a producer of "virtual child" pornography if the virtual image is "virtually indistinguishable" from reality. This affirmative defense shifts the burden of proof from the government to the producer of the work. In The Free Speech Coalition, the Court emphasized that if the government would have a difficult time prosecuting virtual pornographers, then the defendant would have just as hard of a time proving his innocence by demonstrating that real children were not used especially if the defendant was not the producer but a mere possessor of the virtual pornography.49

¶12 On July 17, 2002, a Joint Resolution was proposed to add a constitutional amendment respecting real and "virtual child" pornography.50 "Section 1. Neither the Constitution nor any State constitution shall be construed to protect child pornography, defined as visual depictions by any technological means of minor persons, whether actual or virtual, engaged in explicit sexual activity. Section 2. The Congress shall have the power to enforce this article by appropriate legislation."51 This proposed amendment is again overbroad and contradicts the First Amendment because it would eliminate a substantial subsection of artistically valuable work. Hollywood movies and television programs have many examples of visual depictions of "minors" engaged in explicit sexual activity. The proposed amendment bans not only explicit pictures of prepubescent children but depictions of 17 year-olds engaged in sexual activities that might not be offensive to community standards much like the original CPPA.52

Conclusion

¶13 The proposed amendment is so broad that it would encompass much of the entertainment industry. Imagine if all the movies depicting minors in sexually explicit situations were removed from the store shelves. Some very popular movies and works of art would suddenly become illegal contraband. It could happen if Congress passes this proposed amendment. Congress has again failed to narrowly tailor the law but hopefully, for the sake of our freedom of speech, the proposed amendment shall fail as well. The Supreme Court's decision in Ashcroft v. The Free Speech Coalition indicates that there is a way to tailor the revision of the CPPA without violating the First Amendment.53 If the government believes that "virtual child" pornography will be used by child abusers to convince their victims to participate in sexual activities,54 Congress could narrowly tailor a criminal statute to punish such uses of the materials severely without banning the creation and possession of the work. Banning "virtual child" pornography will not effectively protect the nation's children from perpetrators. It will simply eliminate a victimless alternative that is substantially less repugnant than the abuse of actual children. The proposed constitutional amendment and congressional bills are plagued with the same problem of being overbroad as the CPPA and violate the First Amendment's protection of the freedom of speech.

By: Dannielle Cisneros"

 

[MechaBlade]

The Supreme Court is more clear on this subject than nearly any other.

See, for example:
[long text]

This doesn't contradict anything I've said, from what I read.

 

[Karen Kraft]

Text: Ashcroft v. Free Speech

ASHCROFT, ATTORNEY GENERAL, et al. v.
FREE SPEECH COALITION et al.


certiorari to the united states court of appeals for the ninth circuit


No. 00-795. Argued October 30, 2001--Decided April 16, 2002


The Child Pornography Prevention Act of 1996 (CPPA) expands the federal prohibition on child pornography to include not only pornographic images made using actual children, 18 U. S. C. §2256(8)(A), but also "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct," §2256(8)(B), and any sexually explicit image that is "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression" it depicts "a minor engaging in sexually explicit conduct," §2256(8)(D). Thus, §2256(8)(B) bans a range of sexually explicit images, sometimes called "virtual child pornography," that appear to depict minors but were produced by means other than using real children, such as through the use of youthful-looking adults or computer-imaging technology. Section 2256(8)(D) is aimed at preventing the production or distribution of pornographic material pandered as child pornography. Fearing that the CPPA threatened their activities, respondents, an adult-entertainment trade association and others, filed this suit alleging that the "appears to be" and "conveys the impression" provisions are overbroad and vague, chilling production of works protected by the First Amendment. The District Court disagreed and granted the Government summary judgment, but the Ninth Circuit reversed. Generally, pornography can be banned only if it is obscene under Miller v. California, 413 U. S. 15, but pornography depicting actual children can be proscribed whether or not the images are obscene because of the State's interest in protecting the children exploited by the production process, New York v. Ferber, 458 U. S. 747, 758, and in prosecuting those who promote such sexual exploitation, id., at 761. The Ninth Circuit held the CPPA invalid on its face, finding it to be substantially overbroad because it bans materials that are neither obscene under Miller nor produced by the exploitation of real children as in Ferber.


Held: The prohibitions of §§2256(8)(B) and 2256(8)(D) are overbroad and unconstitutional. Pp. 6-21.


(a) Section 2256(8)(B) covers materials beyond the categories recognized in Ferber and Miller, and the reasons the Government offers in support of limiting the freedom of speech have no justification in this Court's precedents or First Amendment law. Pp. 6-19.


(1) The CPPA is inconsistent with Miller. It extends to images that are not obscene under the Miller standard, which requires the Government to prove that the work in question, taken as a whole, appeals to the prurient interest, is patently offensive in light of community standards, and lacks serious literary, artistic, political, or scientific value, 413 U. S., at 24. Materials need not appeal to the prurient interest under the CPPA, which proscribes any depiction of sexually explicit activity, no matter how it is presented. It is not necessary, moreover, that the image be patently offensive. Pictures of what appear to be 17-year-olds engaging in sexually explicit activity do not in every case contravene community standards. The CPPA also prohibits speech having serious redeeming value, proscribing 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 for centuries. A number of acclaimed movies, filmed without any child actors, explore themes within the wide sweep of the statute's prohibitions. If those movies contain a single graphic depiction of sexual activity within the statutory definition, their possessor would be subject to severe punishment without inquiry into the literary value of the work. This is inconsistent with an essential First Amendment rule: A work's artistic merit does not depend on the presence of a single explicit scene. See, e.g., Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Mass., 383 U. S. 413, 419. Under Miller, redeeming value is judged by considering the work as a whole. Where the scene is part of the narrative, the work itself does not for this reason become obscene, even though the scene in isolation might be offensive. See Kois v. Wisconsin, 408 U. S. 229, 231 (per curiam). The CPPA cannot be read to prohibit obscenity, because it lacks the required link between its prohibitions and the affront to community standards prohibited by the obscenity definition. Pp. 6-11.


(2) The CPPA finds no support in Ferber. The Court rejects the Government's argument that speech prohibited by the CPPA is virtually indistinguishable from material that may be banned under Ferber. That case upheld a prohibition on the distribution and sale of child pornography, as well as its production, because these acts were "intrinsically related" to the sexual abuse of children in two ways. 458 U. S., at 759. First, as a permanent record of a child's abuse, the continued circulation itself would harm the child who had participated. See id., at 759, and n. 10. Second, because the traffic in child pornography was an economic motive for its production, the State had an interest in closing the distribution network. Id., at 760. Under either rationale, the speech had what the Court in effect held was a proximate link to the crime from which it came. In contrast to the speech in Ferber, speech that is itself the record of sexual abuse, the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not "intrinsically related" to the sexual abuse of children. While the Government asserts that the images can lead to actual instances of child abuse, the causal link is contingent and indirect. The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts. The Government's argument that these indirect harms are sufficient because, as Ferber acknowledged, child pornography rarely can be valuable speech, see id., at 762, suffers from two flaws. First, Ferber's judgment about child pornography was based upon how it was made, not on what it communicated. The case reaffirmed that where the speech is neither obscene nor the product of sexual abuse, it does not fall outside the First Amendment's protection. See id., at 764-765. Second, Ferber did not hold that child pornography is by definition without value. It recognized some works in this category might have significant value, see id., at 761, but relied on virtual images--the very images prohibited by the CPPA--as an alternative and permissible means of expression, id., at 763. Because Ferber relied on the distinction between actual and virtual child pornography as supporting its holding, it provides no support for a statute that eliminates the distinction and makes the alternative mode criminal as well. Pp. 11-13.


(3) The Court rejects other arguments offered by the Government to justify the CPPA's prohibitions. The contention that the CPPA is necessary because pedophiles may use virtual child pornography to seduce children runs afoul of the principle that speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it. See, e.g., Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 130-131. That the evil in question depends upon the actor's unlawful conduct, defined as criminal quite apart from any link to the speech in question, establishes that the speech ban is not narrowly drawn. The argument that virtual child pornography whets pedophiles' appetites and encourages them to engage in illegal conduct is unavailing because the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it, Stanley v. Georgia, 394 U. S. 557, 566, absent some showing of a direct connection between the speech and imminent illegal conduct, see, e.g., Brandenburg v. Ohio, 395 U. S. 444, 447 (per curiam). The argument that eliminating the market for pornography produced using real children necessitates a prohibition on virtual images as well is somewhat implausible because few pornographers would risk prosecution for abusing real children if fictional, computerized images would suffice. Moreover, even if the market deterrence theory were persuasive, the argument cannot justify the CPPA because, here, there is no underlying crime at all. Finally, the First Amendment is turned upside down by the argument that, because it is difficult to distinguish between images made using real children and those produced by computer imaging, both kinds of images must be prohibited. The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process. See Broadrick v. Oklahoma, 413 U. S. 601, 612. The Government's rejoinder that the CPPA should be read not as a prohibition on speech but as a measure shifting the burden to the accused to prove the speech is lawful raises serious constitutional difficulties. The Government misplaces its reliance on §2252A(c), which creates an affirmative defense allowing a defendant to avoid conviction for nonpossession offenses by showing that the materials were produced using only adults and were not otherwise distributed in a manner conveying the impression that they depicted real children. Even if an affirmative defense can save a statute from First Amendment challenge, here the defense is insufficient because it does not apply to possession or to images created by computer imaging, even where the defendant could demonstrate no children were harmed in producing the images. Thus, the defense leaves unprotected a substantial amount of speech not tied to the Government's interest in distinguishing images produced using real children from virtual ones. Pp. 13-19.


(b) Section 2256(8)(D) is also substantially overbroad. The Court disagrees with the Government's view that the only difference between that provision and §2256(8)(B)'s "appears to be" provision is that §2256(8)(D) requires the jury to assess the material at issue in light of the manner in which it is promoted, but that the determination would still depend principally upon the prohibited work's content. The "conveys the impression" provision requires little judgment about the image's content; the work must be sexually explicit, but otherwise the content is irrelevant. Even if a film contains no sexually explicit scenes involving minors, it could be treated as child pornography if the title and trailers convey the impression that such scenes will be found in the movie. The determination turns on how the speech is presented, not on what is depicted. The Government's other arguments in support of the CPPA do not bear on §2256(8)(D). The materials, for instance, are not likely to be confused for child pornography in a criminal trial. Pandering may be relevant, as an evidentiary matter, to the question whether particular materials are obscene. See Ginzburg v. United States, 383 U. S. 463, 474. Where a defendant engages in the "commercial exploitation" of erotica solely for the sake of prurient appeal, id., at 466, the context created may be relevant to evaluating whether the materials are obscene. Section 2256(8)(D), however, prohibits a substantial amount of speech that falls outside Ginzburg's rationale. Proscribed material is tainted and unlawful in the hands of all who receive it, though they bear no responsibility for how it was marketed, sold, or described. The statute, furthermore, does not require that the context be part of an effort at "commercial exploitation." Thus, the CPPA does more than prohibit pandering. It bans possession of material pandered as child pornography by someone earlier in the distribution chain, as well as a sexually explicit film that contains no youthful actors but has been packaged to suggest a prohibited movie. Possession is a crime even when the possessor knows the movie was mislabeled. The First Amendment requires a more precise restriction. Pp. 19-20.


(c) In light of the foregoing, respondents' contention that §§2256(8)(B) and 2256(8)(D) are void for vagueness need not be addressed. P. 21.


198 F. 3d 1083, affirmed.


Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed an opinion concurring in the judgment. O'Connor, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Rehnquist, C. J., and Scalia, J., joined as to Part II. Rehnquist, C. J., filed a dissenting opinion, in which Scalia, J., joined except for the paragraph discussing legislative history.



--------------------------------------------------------------------------------


JOHN D. ASHCROFT, ATTORNEY GENERAL, et al.,
PETITIONERS v. THE FREE SPEECH
COALITION et al.


on writ of certiorari to the united states court of
appeals for the ninth circuit


[April 16, 2002]



--------------------------------------------------------------------------------


Justice Kennedy delivered the opinion of the Court.


We consider in this case whether the Child Pornography Prevention Act of 1996 (CPPA), 18 U. S. C. §2251 et seq., abridges the freedom of speech. The CPPA extends the federal prohibition against child pornography to sexually explicit images that appear to depict minors but were produced without using any real children. The statute prohibits, in specific circumstances, possessing or distributing these images, which may be created by using adults who look like minors or by using computer imaging. The new technology, according to Congress, makes it possible to create realistic images of children who do not exist. See Congressional Findings, notes following 18 U. S. C. §2251.


By prohibiting child pornography that does not depict an actual child, the statute goes beyond New York v. Ferber, 458 U. S. 747 (1982), which distinguished child pornography from other sexually explicit speech because of the State's interest in protecting the children exploited by the production process. See id., at 758. As a general rule, pornography can be banned only if obscene, but under Ferber, pornography showing minors can be proscribed whether or not the images are obscene under the definition set forth in Miller v. California, 413 U. S. 15 (1973). Ferber recognized that "[t]he Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State's particular and more compelling interest in prosecuting those who promote the sexual exploitation of children." 458 U. S., at 761.


While we have not had occasion to consider the question, we may assume that the apparent age of persons engaged in sexual conduct is relevant to whether a depiction offends community standards. Pictures of young children engaged in certain acts might be obscene where similar depictions of adults, or perhaps even older adolescents, would not. The CPPA, however, is not directed at speech that is obscene; Congress has proscribed those materials through a separate statute. 18 U. S. C. §§1460-1466. Like the law in Ferber, the CPPA seeks to reach beyond obscenity, and it makes no attempt to conform to the Miller standard. For instance, the statute would reach visual depictions, such as movies, even if they have redeeming social value.


The principal question to be resolved, then, is whether the CPPA is constitutional where it proscribes a significant universe of speech that is neither obscene under Miller nor child pornography under Ferber.

I


Before 1996, Congress defined child pornography as the type of depictions at issue in Ferber, images made using actual minors. 18 U. S. C. §2252 (1994 ed.). The CPPA retains that prohibition at 18 U. S. C. §2256(8)(A) and adds three other prohibited categories of speech, of which the first, §2256(8)(B), and the third, §2256(8)(D), are at issue in this case. Section 2256(8)(B) prohibits "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct." The prohibition on "any visual depiction" does not depend at all on how the image is produced. The section captures a range of depictions, sometimes called "virtual child pornography," which include computer-generated images, as well as images produced by more traditional means. For instance, the literal terms of the statute embrace a Renaissance painting depicting a scene from classical mythology, a "picture" that "appears to be, of a minor engaging in sexually explicit conduct." The statute also prohibits Hollywood movies, filmed without any child actors, if a jury believes an actor "appears to be" a minor engaging in "actual or simulated ... sexual intercourse." §2256(2).


These images do not involve, let alone harm, any children in the production process; but Congress decided the materials threaten children in other, less direct, ways. Pedophiles might use the materials to encourage children to participate in sexual activity. "[A] child who is reluctant to engage in sexual activity with an adult, or to pose for sexually explicit photographs, can sometimes be convinced by viewing depictions of other children `having fun' participating in such activity." Congressional Findings, note (3) following §2251. Furthermore, pedophiles might "whet their own sexual appetites" with the pornographic images, "thereby increasing the creation and distribution of child pornography and the sexual abuse and exploitation of actual children." Id., notes (4), (10)(B). Under these rationales, harm flows from the content of the images, not from the means of their production. In addition, Congress identified another problem created by computer-generated images: Their existence can make it harder to prosecute pornographers who do use real minors. See id., note (6)(A). As imaging technology improves, Congress found, it becomes more difficult to prove that a particular picture was produced using actual children. To ensure that defendants possessing child pornography using real minors cannot evade prosecution, Congress extended the ban to virtual child pornography.


Section 2256(8)(C) prohibits a more common and lower tech means of creating virtual images, known as computer morphing. Rather than creating original images, pornographers can alter innocent pictures of real children so that the children appear to be engaged in sexual activity. Although morphed images may fall within the definition of virtual child pornography, they implicate the interests of real children and are in that sense closer to the images in Ferber. Respondents do not challenge this provision, and we do not consider it.


Respondents do challenge §2256(8)(D). Like the text of the "appears to be" provision, the sweep of this provision is quite broad. Section 2256(8)(D) defines child pornography to include any sexually explicit image that was "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression" it depicts "a minor engaging in sexually explicit conduct." One Committee Report identified the provision as directed at sexually explicit images pandered as child pornography. See S. Rep. No. 104-358, p. 22 (1996) ("This provision prevents child pornographers and pedophiles from exploiting prurient interests in child sexuality and sexual activity through the production or distribution of pornographic material which is intentionally pandered as child pornography"). The statute is not so limited in its reach, however, as it punishes even those possessors who took no part in pandering. Once a work has been described as child pornography, the taint remains on the speech in the hands of subsequent possessors, making possession unlawful even though the content otherwise would not be objectionable.


Fearing that the CPPA threatened the activities of its members, respondent Free Speech Coalition and others challenged the statute in the United States District Court for the Northern District of California. The Coalition, a California trade association for the adult-entertainment industry, alleged that its members did not use minors in their sexually explicit works, but they believed some of these materials might fall within the CPPA's expanded definition of child pornography. The other respondents are Bold Type, Inc., the publisher of a book advocating the nudist lifestyle; Jim Gingerich, a painter of nudes; and Ron Raffaelli, a photographer specializing in erotic images. Respondents alleged that the "appears to be" and "conveys the impression" provisions are overbroad and vague, chilling them from producing works protected by the First Amendment. The District Court disagreed and granted summary judgment to the Government. The court dismissed the overbreadth claim because it was "highly unlikely" that any "adaptations of sexual works like `Romeo and Juliet,' will be treated as `criminal contraband.' " App. to Pet. for Cert. 62a-63a.


The Court of Appeals for the Ninth Circuit reversed. See 198 F. 3d 1083 (1999). The court reasoned that the Government could not prohibit speech because of its tendency to persuade viewers to commit illegal acts. The court held the CPPA to be substantially overbroad because it bans materials that are neither obscene nor produced by the exploitation of real children as in New York v. Ferber, 458 U. S. 747 (1982). Judge Ferguson dissented on the ground that virtual images, like obscenity and real child pornography, should be treated as a category of speech unprotected by the First Amendment. 198 F. 3d, at 1097. The Court of Appeals voted to deny the petition for rehearing en banc, over the dissent of three judges. See 220 F. 3d 1113 (2000).


While the Ninth Circuit found the CPPA invalid on its face, four other Courts of Appeals have sustained it. See United States v. Fox, 248 F. 3d 394 (CA5 2001); United States v. Mento, 231 F. 3d 912 (CA4 2000); United States v. Acheson, 195 F. 3d 645 (CA11 1999); United States v. Hilton, 167 F. 3d 61 (CA1), cert. denied, 528 U. S. 844 (1999). We granted certiorari. 531 U. S. 1124 (2001).

II


The First Amendment commands, "Congress shall make no law ... abridging the freedom of speech." The government may violate this mandate in many ways, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995); Keller v. State Bar of Cal., 496 U. S. 1 (1990), but a law imposing criminal penalties on protected speech is a stark example of speech suppression. The CPPA's penalties are indeed severe. A first offender may be imprisoned for 15 years. §2252A(b)(1). A repeat offender faces a prison sentence of not less than 5 years and not more than 30 years in prison. Ibid. While even minor punishments can chill protected speech, see Wooley v. Maynard, 430 U. S. 705 (1977), this case provides a textbook example of why we permit facial challenges to statutes that burden expression. With these severe penalties in force, few legitimate movie producers or book publishers, or few other speakers in any capacity, would risk distributing images in or near the uncertain reach of this law. The Constitution gives significant protection from overbroad laws that chill speech within the First Amendment's vast and privileged sphere. Under this principle, the CPPA is unconstitutional on its face if it prohibits a substantial amount of protected expression. See Broadrick v. Oklahoma, 413 U. S. 601, 612 (1973).


The sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people. In its legislative findings, Congress recognized that there are subcultures of persons who harbor illicit desires for children and commit criminal acts to gratify the impulses. See Congressional Findings, notes following §2251; see also U. S. Dept. of Health and Human Services, Administration on Children, Youth and Families, Child Maltreatment 1999 (estimating that 93,000 children were victims of sexual abuse in 1999). Congress also found that surrounding the serious offenders are those who flirt with these impulses and trade pictures and written accounts of sexual activity with young children.


Congress may pass valid laws to protect children from abuse, and it has. E.g., 18 U. S. C. §§2241, 2251. The prospect of crime, however, by itself does not justify laws suppressing protected speech. See Kingsley Int'l Pictures Corp. v. Regents of Univ. of N. Y., 360 U. S. 684, 689 (1959) ("Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech") (internal quotation marks and citation omitted)). It is also well established that speech may not be prohibited because it concerns subjects offending our sensibilities. See FCC v. Pacifica Foundation, 438 U. S. 726, 745 (1978) ("[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it"); see also Reno v. American Civil Liberties Union, 521 U. S. 844, 874 (1997) ("In evaluating the free speech rights of adults, we have made it perfectly clear that `exual expression which is indecent but not obscene is protected by the First Amendment' ") (quoting Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989); Carey v. Population Services Int'l, 431 U. S. 678, 701 (1977) ("[T]he fact that protected speech may be offensive to some does not justify its suppression").


As a general principle, the First Amendment bars the government from dictating what we see or read or speak or hear. The freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children. See Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (Kennedy, J., concurring). While these categories may be prohibited without violating the First Amendment, none of them includes the speech prohibited by the CPPA. In his dissent from the opinion of the Court of Appeals, Judge Ferguson recognized this to be the law and proposed that virtual child pornography should be regarded as an additional category of unprotected speech. See 198 F. 3d, at 1101. It would be necessary for us to take this step to uphold the statute.


As we have noted, the CPPA is much more than a supplement to the existing federal prohibition on obscenity. Under Miller v. California, 413 U. S. 15 (1973), the Government must prove that the work, taken as a whole, appeals to the prurient interest, is patently offensive in light of community standards, and lacks serious literary, artistic, political, or scientific value. Id., at 24. The CPPA, however, extends to images that appear to depict a minor engaging in sexually explicit activity without regard to the Miller requirements. The materials need not appeal to the prurient interest. Any depiction of sexually explicit activity, no matter how it is presented, is proscribed. The CPPA applies to a picture in a psychology manual, as well as a movie depicting the horrors of sexual abuse. It is not necessary, moreover, that the image be patently offensive. Pictures of what appear to be 17-year-olds engaging in sexually explicit activity do not in every case contravene community standards.


The CPPA prohibits speech despite its serious literary, artistic, political, or scientific value. 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. Under the CPPA, images are prohibited so long as the persons appear to be under 18 years of age. 18 U. S. C. §2256(1). This is higher than the legal age for marriage in many States, as well as the age at which persons may consent to sexual relations. See §2243(a) (age of consent in the federal maritime and territorial jurisdiction is 16); U. S. National Survey of State Laws 384-388 (R. Leiter ed., 3d ed. 1999) (48 States permit 16-year-olds to marry with parental consent); W. Eskridge & N. Hunter, Sexuality, Gender, and the Law 1021-1022 (1997) (in 39 States and the District of Columbia, the age of consent is 16 or younger). It is, of course, undeniable that some youths engage in sexual activity before the legal age, either on their own inclination or because they are victims of sexual abuse.


Both themes--teenage sexual activity and the sexual abuse of children--have inspired countless literary works. William Shakespeare created the most famous pair of teenage lovers, one of whom is just 13 years of age. See Romeo and Juliet, act I, sc. 2, l. 9 ("She hath not seen the change of fourteen years"). In the drama, Shakespeare portrays the relationship as something splendid and innocent, but not juvenile. The work has inspired no less than 40 motion pictures, some of which suggest that the teenagers consummated their relationship. E.g., Romeo and Juliet (B. Luhrmann director, 1996). Shakespeare may not have written sexually explicit scenes for the Elizabethean audience, but were modern directors to adopt a less conventional approach, that fact alone would not compel the conclusion that the work was obscene.


Contemporary movies pursue similar themes. Last year's Academy Awards featured the movie, Traffic, which was nominated for Best Picture. See Predictable and Less So, the Academy Award Contenders, N. Y. Times, Feb. 14, 2001, p. E11. The film portrays a teenager, identified as a 16-year-old, who becomes addicted to drugs. The viewer sees the degradation of her addiction, which in the end leads her to a filthy room to trade sex for drugs. The year before, American Beauty won the Academy Award for Best Picture. See "American Beauty" Tops the Oscars, N. Y. Times, Mar. 27, 2000, p. E1. In the course of the movie, a teenage girl engages in sexual relations with her teenage boyfriend, and another yields herself to the gratification of a middle-aged man. The film also contains a scene where, although the movie audience understands the act is not taking place, one character believes he is watching a teenage boy performing a sexual act on an older man.


Our society, like other cultures, has empathy and enduring fascination with the lives and destinies of the young. Art and literature express the vital interest we all have in the formative years we ourselves once knew, when wounds can be so grievous, disappointment so profound, and mistaken choices so tragic, but when moral acts and self-fulfillment are still in reach. Whether or not the films we mention violate the CPPA, they explore themes within the wide sweep of the statute's prohibitions. If these films, or hundreds of others of lesser note that explore those subjects, contain a single graphic depiction of sexual activity within the statutory definition, the possessor of the film would be subject to severe punishment without inquiry into the work's redeeming value. This is inconsistent with an essential First Amendment rule: The artistic merit of a work does not depend on the presence of a single explicit scene. See Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Mass., 383 U. S. 413, 419 (1966) (plurality opinion) ("[T]he social value of the book can neither be weighed against nor canceled by its prurient appeal or patent offensiveness"). Under Miller, the First Amendment requires that redeeming value be judged by considering the work as a whole. Where the scene is part of the narrative, the work itself does not for this reason become obscene, even though the scene in isolation might be offensive. See Kois v. Wisconsin, 408 U. S. 229, 231 (1972) (per curiam). For this reason, and the others we have noted, the CPPA cannot be read to prohibit obscenity, because it lacks the required link between its prohibitions and the affront to community standards prohibited by the definition of obscenity.


The Government seeks to address this deficiency by arguing that speech prohibited by the CPPA is virtually indistinguishable from child pornography, which may be banned without regard to whether it depicts works of value. See New York v. Ferber, 458 U. S., at 761. Where the images are themselves the product of child sexual abuse, Ferber recognized that the State had an interest in stamping it out without regard to any judgment about its content. Id., at 761, n. 12; see also id., at 775 (O'Connor, J., concurring) ("As drafted, New York's statute does not attempt to suppress the communication of particular ideas"). The production of the work, not its content, was the target of the statute. The fact that a work contained serious literary, artistic, or other value did not excuse the harm it caused to its child participants. It was simply "unrealistic to equate a community's toleration for sexually oriented materials with the permissible scope of legislation aimed at protecting children from sexual exploitation." Id., at 761, n. 12.


Ferber upheld a prohibition on the distribution and sale of child pornography, as well as its production, because these acts were "intrinsically related" to the sexual abuse of children in two ways. Id., at 759. First, as a permanent record of a child's abuse, the continued circulation itself would harm the child who had participated. Like a defamatory statement, each new publication of the speech would cause new injury to the child's reputation and emotional well-being. See id., at 759, and n. 10. Second, because the traffic in child pornography was an economic motive for its production, the State had an interest in closing the distribution network. "The most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product." Id., at 760. Under either rationale, the speech had what the Court in effect held was a proximate link to the crime from which it came.


Later, in Osborne v. Ohio, 495 U. S. 103 (1990), the Court ruled that these same interests justified a ban on the possession of pornography produced by using children. "Given the importance of the State's interest in protecting the victims of child pornography," the State was justified in "attempting to stamp out this vice at all levels in the distribution chain." Id., at 110. Osborne also noted the State's interest in preventing child pornography from being used as an aid in the solicitation of minors. Id., at 111. The Court, however, anchored its holding in the concern for the participants, those whom it called the "victims of child pornography." Id., at 110. It did not suggest that, absent this concern, other governmental interests would suffice. See infra, at 13-15.


In contrast to the speech in Ferber, speech that itself is the record of sexual abuse, the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not "intrinsically related" to the sexual abuse of children, as were the materials in Ferber. 458 U. S., at 759. While the Government asserts that the images can lead to actual instances of child abuse, see infra, at 13-16, the causal link is contingent and indirect. The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts.


The Government says these indirect harms are sufficient because, as Ferber acknowledged, child pornography rarely can be valuable speech. See 458 U. S., at 762 ("The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis"). This argument, however, suffers from two flaws. First, Ferber's judgment about child pornography was based upon how it was made, not on what it communicated. The case reaffirmed that where the speech is neither obscene nor the product of sexual abuse, it does not fall outside the protection of the First Amendment. See id., at 764-765 ("[T]he distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection").


The second flaw in the Government's position is that Ferber did not hold that child pornography is by definition without value. On the contrary, the Court recognized some works in this category might have significant value, see id., at 761, but relied on virtual images--the very images prohibited by the CPPA--as an alternative and permissible means of expression: "f it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized. Simulation outside of the prohibition of the statute could provide another alternative." Id., at 763. Ferber, then, not only referred to the distinction between actual and virtual child pornography, it relied on it as a reason supporting its holding. Ferber provides no support for a statute that eliminates the distinction and makes the alternative mode criminal as well.

III


The CPPA, for reasons we have explored, is inconsistent with Miller and finds no support in Ferber. The Government seeks to justify its prohibitions in other ways. It argues that the CPPA is necessary because pedophiles may use virtual child pornography to seduce children. There are many things innocent in themselves, however, such as cartoons, video games, and candy, that might be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused. The Government, of course, may punish adults who provide unsuitable materials to children, see Ginsberg v. New York, 390 U. S. 629 (1968), and it may enforce criminal penalties for unlawful solicitation. The precedents establish, however, that speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it. See Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989). In Butler v. Michigan, 352 U. S. 380, 381 (1957), the Court invalidated a statute prohibiting distribution of an indecent publication because of its tendency to "incite minors to violent or depraved or immoral acts." A unanimous Court agreed upon the important First Amendment principle that the State could not "reduce the adult population ... to reading only what is fit for children." Id., at 383. We have reaffirmed this holding. See United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 814 (2000) ("[T]he objective of shielding children does not suffice to support a blanket ban if the protection can be accomplished by a less restrictive alternative"); Reno v. American Civil Liberties Union, 521 U. S., at 875 (The "governmental interest in protecting children from harmful materials ... does not justify an unnecessarily broad suppression of speech addressed to adults"); Sable Communications v. FCC, supra, at 130-131 (striking down a ban on "dial-a-porn" messages that had "the invalid effect of limiting the content of adult telephone conversations to that which is suitable for children to hear").


Here, the Government wants to keep speech from children not to protect them from its content but to protect them from those who would commit other crimes. The principle, however, remains the same: The Government cannot ban speech fit for adults simply because it may fall into the hands of children. The evil in question depends upon the actor's unlawful conduct, conduct defined as criminal quite apart from any link to the speech in question. This establishes that the speech ban is not narrowly drawn. The objective is to prohibit illegal conduct, but this restriction goes well beyond that interest by restricting the speech available to law-abiding adults.


The Government submits further that virtual child pornography whets the appetites of pedophiles and encourages them to engage in illegal conduct. This rationale cannot sustain the provision in question. The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. The government "cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts." Stanley v. Georgia, 394 U. S. 557, 566 (1969). First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.


To preserve these freedoms, and to protect speech for its own sake, the Court's First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct. See Kingsley Int'l Pictures Corp., 360 U. S., at 689; see also Bartnicki v. Vopper, 532 U. S. 514, 529 (2001) ("The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it"). The government may not prohibit speech because it increases the chance an unlawful act will be committed "at some indefinite future time." Hess v. Indiana, 414 U. S. 105, 108 (1973) (per curiam). The government may suppress speech for advocating the use of force or a violation of law only if "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam). There is here no attempt, incitement, solicitation, or conspiracy. The Government has shown no more than a remote connection between speech that might encourage thoughts or impulses and any resulting child abuse. Without a significantly stronger, more direct connection, the Government may not prohibit speech on the ground that it may encourage pedophiles to engage in illegal conduct.


The Government next argues that its objective of eliminating the market for pornography produced using real children necessitates a prohibition on virtual images as well. Virtual images, the Government contends, are indistinguishable from real ones; they are part of the same market and are often exchanged. In this way, it is said, virtual images promote the trafficking in works produced through the exploitation of real children. The hypothesis is somewhat implausible. If virtual images were identical to illegal child pornography, the illegal images would be driven from the market by the indistinguishable substitutes. Few pornographers would risk prosecution by abusing real children if fictional, computerized images would suffice.


In the case of the material covered by Ferber, the creation of the speech is itself the crime of child abuse; the prohibition deters the crime by removing the profit motive. See Osborne, 495 U. S., at 109-110. Even where there is an underlying crime, however, the Court has not allowed the suppression of speech in all cases. E.g., Bartnicki, supra, at 529 (market deterrence would not justify law prohibiting a radio commentator from distributing speech that had been unlawfully intercepted). We need not consider where to strike the balance in this case, because here, there is no underlying crime at all. Even if the Government's market deterrence theory were persuasive in some contexts, it would not justify this statute.


Finally, the Government says that the possibility of producing images by using computer imaging makes it very difficult for it to prosecute those who produce pornography by using real children. Experts, we are told, may have difficulty in saying whether the pictures were made by using real children or by using computer imaging. The necessary solution, the argument runs, is to prohibit both kinds of images. The argument, in essence, is that protected speech may be banned as a means to ban unprotected speech. This analysis turns the First Amendment upside down.


The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse. "[T]he possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted ... ." Broadrick v. Oklahoma, 413 U. S., at 612. The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.


To avoid the force of this objection, the Government would have us read the CPPA not as a measure suppressing speech but as a law shifting the burden to the accused to prove the speech is lawful. In this connection, the Government relies on an affirmative defense under the statute, which allows a defendant to avoid conviction for nonpossession offenses by showing that the materials were produced using only adults and were not otherwise distributed in a manner conveying the impression that they depicted real children. See 18 U. S. C. §2252A(c).


The Government raises serious constitutional difficulties by seeking to impose on the defendant the burden of proving his speech is not unlawful. An affirmative defense applies only after prosecution has begun, and the speaker must himself prove, on pain of a felony conviction, that his conduct falls within the affirmative defense. In cases under the CPPA, the evidentiary burden is not trivial. Where the defendant is not the producer of the work, he may have no way of establishing the identity, or even the existence, of the actors. If the evidentiary issue is a serious problem for the Government, as it asserts, it will be at least as difficult for the innocent possessor. The statute, moreover, applies to work created before 1996, and the producers themselves may not have preserved the records necessary to meet the burden of proof. Failure to establish the defense can lead to a felony conviction.


We need not decide, however, whether the Government could impose this burden on a speaker. Even if an affirmative defense can save a statute from First Amendment challenge, here the defense is incomplete and insufficient, even on its own terms. It allows persons to be convicted in some instances where they can prove children were not exploited in the production. A defendant charged with possessing, as opposed to distributing, proscribed works may not defend on the ground that the film depicts only adult actors. See ibid. So while the affirmative defense may protect a movie producer from prosecution for the act of distribution, that same producer, and all other persons in the subsequent distribution chain, could be liable for possessing the prohibited work. Furthermore, the affirmative defense provides no protection to persons who produce speech by using computer imaging, or through other means that do not involve the use of adult actors who appear to be minors. See ibid. In these cases, the defendant can demonstrate no children were harmed in producing the images, yet the affirmative defense would not bar the prosecution. For this reason, the affirmative defense cannot save the statute, for it leaves unprotected a substantial amount of speech not tied to the Government's interest in distinguishing images produced using real children from virtual ones.


In sum, §2256(8)(B) covers materials beyond the categories recognized in Ferber and Miller, and the reasons the Government offers in support of limiting the freedom of speech have no justification in our precedents or in the law of the First Amendment. The provision abridges the freedom to engage in a substantial amount of law-
ful speech. For this reason, it is overbroad and
unconstitutional.

IV


Respondents challenge §2256(8)(D) as well. This provision bans depictions of sexually explicit conduct that are "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." The parties treat the section as nearly identical to the provision prohibiting materials that appear to be child pornography. In the Government's view, the difference between the two is that "the `conveys the impression' provision requires the jury to assess the material at issue in light of the manner in which it is promoted." Brief for Petitioners 18, n. 3. The Government's assumption, however, is that the determination would still depend principally upon the content of the prohibited work.


We disagree with this view. The CPPA prohibits sexually explicit materials that "conve[y] the impression" they depict minors. While that phrase may sound like the "appears to be" prohibition in §2256(8)(B), it requires little judgment about the content of the image. Under §2256(8)(D), the work must be sexually explicit, but otherwise the content is irrelevant. Even if a film contains no sexually explicit scenes involving minors, it could be treated as child pornography if the title and trailers convey the impression that the scenes would be found in the movie. The determination turns on how the speech is presented, not on what is depicted. While the legislative findings address at length the problems posed by materials that look like child pornography, they are silent on the evils posed by images simply pandered that way.


The Government does not offer a serious defense of this provision, and the other arguments it makes in support of the CPPA do not bear on §2256(8)(D). The materials, for instance, are not likely to be confused for child pornography in a criminal trial. The Court has recognized that pandering may be relevant, as an evidentiary matter, to the question whether particular materials are obscene. See Ginzburg v. United States, 383 U. S. 463, 474 (1966) ("n close cases evidence of pandering may be probative with respect to the nature of the material in question and thus satisfy the [obscenity] test"). Where a defendant engages in the "commercial exploitation of erotica solely for the sake of their prurient appeal," id., at 466, the context he or she creates may itself be relevant to the evaluation of the materials.


Section 2256(8)(D), however, prohibits a substantial amount of speech that falls outside Ginzburg's rationale. Materials falling within the proscription are tainted and unlawful in the hands of all who receive it, though they bear no responsibility for how it was marketed, sold, or described. The statute, furthermore, does not require that the context be part of an effort at "commercial exploitation." Ibid. As a consequence, the CPPA does more than prohibit pandering. It prohibits possession of material described, or pandered, as child pornography by someone earlier in the distribution chain. The provision prohibits a sexually explicit film containing no youthful actors, just because it is placed in a box suggesting a prohibited movie. Possession is a crime even when the possessor knows the movie was mislabeled. The First Amendment requires a more precise restriction. For this reason, §2256(8)(D) is substantially overbroad and in violation of the First Amendment.

V


For the reasons we have set forth, the prohibitions of §§2256(8)(B) and 2256(8)(D) are overbroad and unconstitutional. Having reached this conclusion, we need not address respondents' further contention that the provisions are unconstitutional because of vague statutory language.


The judgment of the Court of Appeals is affirmed.


It is so ordered.



--------------------------------------------------------------------------------


JOHN D. ASHCROFT, ATTORNEY GENERAL, et al.,
PETITIONERS v. THE FREE SPEECH
COALITION et al.


on writ of certiorari to the united states court of
appeals for the ninth circuit


[April 16, 2002]



--------------------------------------------------------------------------------


Justice Thomas, concurring in the judgment.


In my view, the Government's most persuasive asserted interest in support of the Child Pornography Prevention Act of 1996 (CPPA), 18 U. S. C. §2251 et seq., is the prosecution rationale--that persons who possess and disseminate pornographic images of real children may escape conviction by claiming that the images are computer-generated, thereby raising a reasonable doubt as to their guilt. See Brief for Petitioners 37. At this time, however, the Government asserts only that defendants raise such defenses, not that they have done so successfully. In fact, the Government points to no case in which a defendant has been acquitted based on a "computer-generated images" defense. See id., at 37-38, and n. 8. While this speculative interest cannot support the broad reach of the CPPA, technology may evolve to the point where it becomes impossible to enforce actual child pornography laws because the Government cannot prove that certain pornographic images are of real children. In the event this occurs, the Government should not be foreclosed from enacting a regulation of virtual child pornography that contains an appropriate affirmative defense or some other narrowly drawn restriction.


The Court suggests that the Government's interest in enforcing prohibitions against real child pornography cannot justify prohibitions on virtual child pornography, because "[t]his analysis turns the First Amendment upside down. The Government may not suppress lawful speech as the means to suppress unlawful speech." Ante, at 17. But if technological advances thwart prosecution of "unlawful speech," the Government may well have a compelling interest in barring or otherwise regulating some narrow category of "lawful speech" in order to enforce effectively laws against pornography made through the abuse of real children. The Court does leave open the possibility that a more complete affirmative defense could save a statute's constitutionality, see ante, at 18, implicitly accepting that some regulation of virtual child pornography might be constitutional. I would not prejudge, however, whether a more complete affirmative defense is the only way to narrowly tailor a criminal statute that prohibits the possession and dissemination of virtual child pornography. Thus, I concur in the judgment of the Court.



--------------------------------------------------------------------------------


JOHN D. ASHCROFT, ATTORNEY GENERAL, et al.,
PETITIONERS v. THE FREE SPEECH
COALITION et al.


on writ of certiorari to the united states court of
appeals for the ninth circuit


[April 16, 2002]



--------------------------------------------------------------------------------


Chief Justice Rehnquist, with whom Justice Scalia joins in part, dissenting.


I agree with Part II of Justice O'Connor's opinion concurring in the judgment in part and dissenting in part. Congress has a compelling interest in ensuring the ability to enforce prohibitions of actual child pornography, and we should defer to its findings that rapidly advancing technology soon will make it all but impossible to do so. Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 195 (1997) (we "accord substantial deference to the predictive judgment of Congress" in First Amendment cases).


I also agree with Justice O'Connor that serious First Amendment concerns would arise were the Government ever to prosecute someone for simple distribution or possession of a film with literary or artistic value, such as "Traffic" or "American Beauty." Ante, at 3-4 (opinion concurring in judgment in part and dissenting in part). I write separately, however, because the Child Pornography Prevention Act of 1996 (CPPA), 18 U. S. C. §2251 et seq., need not be construed to reach such materials.


We normally do not strike down a statute on First Amendment grounds "when a limiting instruction has been or could be placed on the challenged statute." Broadrick v. Oklahoma, 413 U. S. 601, 613 (1973). See, e.g., New York v. Ferber, 458 U. S. 747, 769 (1982) (appreciating "the wide-reaching effects of striking down a statute on its face"); Parker v. Levy, 417 U. S. 733, 760 (1974) ("This Court has ... repeatedly expressed its reluctance to strike down a statute on its face where there were a substantial number of situations to which it might be validly applied"). This case should be treated no differently.


Other than computer generated images that are virtually indistinguishable from real children engaged in sexually explicitly conduct, the CPPA can be limited so as not to reach any material that was not already unprotected before the CPPA. The CPPA's definition of "sexually explicit conduct" is quite explicit in this regard. It makes clear that the statute only reaches "visual depictions" of:

"[A]ctual or simulated ... sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; ... bestiality; ... masturbation; ... sadistic or masochistic abuse; ... or lascivious exhibition of the genitals or pubic area of any person." 18 U. S. C. §2256(2).


The Court and Justice O'Connor suggest that this very graphic definition reaches the depiction of youthful looking adult actors engaged in suggestive sexual activity, presumably because the definition extends to "simulated" intercourse. Ante, at 9-11 (majority opinion); ante, at 4 (opinion concurring in judgment in part and dissenting in part). Read as a whole, however, I think the definition reaches only the sort of "hard core of child pornography" that we found without protection in Ferber, supra, at 773-774. So construed, the CPPA bans visual depictions of youthful looking adult actors engaged in actual sexual activity; mere suggestions of sexual activity, such as youthful looking adult actors squirming under a blanket, are more akin to written descriptions than visual depictions, and thus fall outside the purview of the statute.1


The reference to "simulated" has been part of the definition of "sexually explicit conduct" since the statute was first passed. See Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. 92-225, 92 Stat. 8. But the inclusion of "simulated" conduct, alongside "actual" conduct, does not change the "hard core" nature of the image banned. The reference to "simulated" conduct simply brings within the statute's reach depictions of hard core pornography that are "made to look genuine," Webster's Ninth New Collegiate Dictionary 1099 (1983)--
including the main target of the CPPA, computer generated images virtually indistinguishable from real children engaged in sexually explicit conduct. Neither actual conduct nor simulated conduct, however, is properly construed to reach depictions such as those in a film portrayal of Romeo and Juliet, ante, at 9-11 (majority opinion); ante, at 4 (O'Connor, J., concurring in judgment in part and dissenting in part), which are far removed from the hard core pornographic depictions that Congress intended to reach.


Indeed, we should be loath to construe a statute as banning film portrayals of Shakespearian tragedies, without some indication--from text or legislative history--that such a result was intended. In fact, Congress explicitly instructed that such a reading of the CPPA would be wholly unwarranted. As the Court of Appeals for the First Circuit has observed:

"[T]he legislative record, which makes plain that the [CPPA] was intended to target only a narrow class of images--visual depictions `which are virtually indistinguishable to unsuspecting viewers from unretouched photographs of actual children engaging in identical sexual conduct.' " United States v. Hilton, 167 F. 3d 61, 72 (1999) (quoting S. Rep. No. 104-358, pt. I, p. 7 (1996)).


Judge Ferguson similarly observed in his dissent in the Court of Appeals in this case:

"From reading the legislative history, it becomes clear that the CPPA merely extends the existing prohibitions on `real' child pornography to a narrow class of computer-generated pictures easily mistaken for real photographs of real children." Free Speech Coalition v. Reno, 198 F. 3d 1083, 1102 (CA9 1999).


See also S. Rep. No. 104-358, supra, pt. IV(C), at 21 ("[The CPPA] does not, and is not intended to, apply to a depiction produced using adults engaging i[n] sexually explicit conduct, even where a depicted individual may appear to be a minor" (emphasis in original)); id., pt. I, at 7 ("[The CPPA] addresses the problem of `high tech kiddie porn' "). We have looked to legislative history to limit the scope of child pornography statutes in the past, United States v. X-Citement Video, Inc., 513 U. S. 64, 73-77 (1994), and we should do so here as well.2


This narrow reading of "sexually explicit conduct" not only accords with the text of the CPPA and the intentions of Congress; it is exactly how the phrase was understood prior to the broadening gloss the Court gives it today. Indeed, had "sexually explicit conduct" been thought to reach the sort of material the Court says it does, then films such as "Traffic" and "American Beauty" would not have been made the way they were. Ante, at 9-10 (discussing these films' portrayals of youthful looking adult actors engaged in sexually suggestive conduct). "Traffic" won its Academy Award in 2001. "American Beauty" won its Academy Award in 2000. But the CPPA has been on the books, and has been enforced, since 1996. The chill felt by the Court, ante, at 6 ("[F]ew legitimate movie producers ... would risk distributing images in or near the uncertain reach of this law"), has apparently never been felt by those who actually make movies.


To the extent the CPPA prohibits possession or distribution of materials that "convey the impression" of a child engaged in sexually explicit conduct, that prohibition can and should be limited to reach "the sordid business of pandering" which lies outside the bounds of First Amendment protection. Ginzburg v. United States, 383 U. S. 463, 467 (1966); e.g., id., at 472 (conduct that "deliberately emphasized the sexually provocative aspects of the work, in order to catch the salaciously disposed" may lose First Amendment protection); United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 831-832 (2000) (Scalia, J., dissenting) (collecting cases). This is how the Government asks us to construe the statute, Brief for United States 18, and n. 3; Tr. of Oral Arg. 27, and it is the most plausible reading of the text, which prohibits only materials "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." 18 U. S. C. §2256(8)(D) (emphasis added).


The First Amendment may protect the video shopowner or film distributor who promotes material as "entertaining" or "acclaimed" regardless of whether the material contains depictions of youthful looking adult actors engaged in nonobscene but sexually suggestive conduct. The First Amendment does not, however, protect the panderer. Thus, materials promoted as conveying the impression that they depict actual minors engaged in sexually explicit conduct do not escape regulation merely because they might warrant First Amendment protection if promoted in a different manner. See Ginzburg, supra, at 474-476; cf. Jacobellis v. Ohio, 378 U. S. 184, 201 (1964) (Warren, C. J., dissenting) ("In my opinion, the use to which various materials are put--not just the words and pictures themselves--must be considered in determining whether or not the materials are obscene"). I would construe "conveys the impression" as limited to the panderer, which makes the statute entirely consistent with Ginzburg and other cases.


The Court says that "conveys the impression" goes well beyond Ginzburg to "prohibi[t] [the] possession of material described, or pandered, as child pornography by someone earlier in the distribution chain." Ante, at 19-21. The Court's concern is that an individual who merely possesses protected materials (such as videocassettes of "Traffic" or "American Beauty") might offend the CPPA regardless of whether the individual actually intended to possess materials containing unprotected images. Ante, at 10; see also ante, at 4 ("Individuals or businesses found to possess just three such films have no defense to criminal liability under the CPPA") (O'Connor, J., concurring in judgment in part and dissenting in part)).


This concern is a legitimate one, but there is, again, no need or reason to construe the statute this way. In X-Citement Video, supra, we faced a provision of the Protection of Children Against Sexual Exploitation Act of 1977, the precursor to the CPPA, which lent itself much less than the present statute to attributing a "knowingly" requirement to the contents of the possessed visual depictions. We held that such a requirement nonetheless applied, so that the Government would have to prove that a person charged with possessing child pornography actually knew that the materials contained depictions of real minors engaged in sexually explicit conduct. 513 U. S., at 77-78. In light of this holding, and consistent with the narrow class of images the CPPA is intended to prohibit, the CPPA can be construed to prohibit only the knowing possession of materials actually containing visual depictions of real minors engaged in sexually explicit conduct, or computer generated images virtually indistinguishable from real minors engaged in sexually explicit conduct. The mere possession of materials containing only suggestive depictions of youthful looking adult actors need not be so included.


In sum, while potentially impermissible applications of the CPPA may exist, I doubt that they would be "substantial ... in relation to the statute's plainly legitimate sweep." Broadrick, 413 U. S., at 615. The aim of ensuring the enforceability of our Nation's child pornography laws is a compelling one. The CPPA is targeted to this aim by extending the definition of child pornography to reach computer-generated images that are virtually indistinguishable from real children engaged in sexually explicit conduct. The statute need not be read to do any more than precisely this, which is not offensive to the First Amendment.


For these reasons, I would construe the CPPA in a manner consistent with the First Amendment, reverse the Court of Appeals' judgment, and uphold the statute in its entirety.



--------------------------------------------------------------------------------


JOHN D. ASHCROFT, ATTORNEY GENERAL, et al.,
PETITIONERS v. THE FREE SPEECH
COALITION et al.


on writ of certiorari to the united states court of
appeals for the ninth circuit


[April 16, 2002]



--------------------------------------------------------------------------------


Justice O'Connor, with whom The Chief Justice and Justice Scalia join as to Part II, concurring in the judgment in part and dissenting in part.


The Child Pornography Prevention Act of 1996 (CPPA), 18 U. S. C. §2251 et seq., proscribes the "knowin[g]" reproduction, distribution, sale, reception, or possession of images that fall under the statute's definition of child pornography, §2252A(a). Possession is punishable by up to 5 years in prison for a first offense, §2252A(b), and all other transgressions are punishable by up to 15 years in prison for a first offense, §2252A(a). The CPPA defines child pornography to include "any visual depiction ... of sexually explicit conduct" where "such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct," §2256(8)(B) (emphasis added), or "such visual depiction is 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," §2256(8)(D) (emphasis added). The statute defines "sexually explicit conduct" as "actual or simulated- ... sexual intercourse ... ; ... bestiality; ... masturbation; ... sadistic or masochistic abuse; or ... lascivious exhibition of the genitals or pubic area of any person." 18 U. S. C. §2256(2).


The CPPA provides for two affirmative defenses. First, a defendant is not liable for possession if the defendant possesses less than three proscribed images and promptly destroys such images or reports the matter to law enforcement. §2252A(d). Second, a defendant is not liable for the remaining acts proscribed in §2252A(a) if the images involved were produced using only adult subjects and are not presented in such a manner as to "convey the impression" they contain depictions of minors engaging in sexually explicit conduct. §2252A(c).


This litigation involves a facial challenge to the CPPA's prohibitions of pornographic images that "appea[r] to be ... of a minor" and of material that "conveys the impression" that it contains pornographic images of minors. While I agree with the Court's judgment that the First Amendment requires that the latter prohibition be struck down, I disagree with its decision to strike down the former prohibition in its entirety. The "appears to be ... of a minor" language in §2256(8)(B) covers two categories of speech: pornographic images of adults that look like children ("youthful-adult pornography") and pornographic images of children created wholly on a computer, without using any actual children ("virtual-child pornography"). The Court concludes, correctly, that the CPPA's ban on youthful-adult pornography is overbroad. In my view, however, respondents fail to present sufficient evidence to demonstrate that the ban on virtual-child pornography is overbroad. Because invalidation due to overbreadth is such "strong medicine," Broadrick v. Oklahoma, 413 U. S. 601, 613 (1973), I would strike down the prohibition of pornography that "appears to be" of minors only insofar as it is applied to the class of youthful-adult pornography.

I


Respondents assert that the CPPA's prohibitions of youthful-adult pornography, virtual-child pornography, and material that "conveys the impression" that it contains actual-child pornography are overbroad, that the prohibitions are content-based regulations not narrowly tailored to serve a compelling Government interest, and that the prohibitions are unconstitutionally vague. The Government not only disagrees with these specific contentions, but also requests that the Court exclude youthful-adult and virtual-child pornography from the protection of the First Amendment.


I agree with the Court's decision not to grant this request. Because the Government may already prohibit obscenity without violating the First Amendment, see Miller v. California, 413 U. S. 15, 23 (1973), what the Government asks this Court to rule is that it may also prohibit youthful-adult and virtual-adult pornography that is merely indecent without violating that Amendment. Although such pornography looks like the material at issue in New York v. Ferber, 458 U. S. 747 (1982), no children are harmed in the process of creating such pornography. Id., at 759. Therefore, Ferber does not support the Government's ban on youthful-adult and virtual-child pornography. See ante, at 10-13. The Government argues that, even if the production of such pornography does not directly harm children, this material aids and abets child abuse. See ante, at 13-16. The Court correctly concludes that the causal connection between pornographic images that "appear" to include minors and actual child abuse is not strong enough to justify withdrawing First Amendment protection for such speech. See ante, at 12.


I also agree with the Court's decision to strike down the CPPA's ban on material presented in a manner that "conveys the impression" that it contains pornographic depictions of actual children ("actual-child pornography"). 18 U. S. C. §2256(8)(D). The Government fails to explain how this ban serves any compelling state interest. Any speech covered by §2256(8)(D) that is obscene, actual-child pornography, or otherwise indecent is prohibited by other federal statutes. See §§1460-1466 (obscenity), 2256(8)(A), (B) (actual-child pornography), 2256(8)(B) (youthful-adult and virtual-child pornography). The Court concludes that §2256(8)(D) is overbroad, but its reasoning also persuades me that the provision is not narrowly tailored. See ante, at 19-20. The provision therefore fails strict scrutiny. United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 813 (2000).


Finally, I agree with Court that that the CPPA's ban on youthful-adult pornography is overbroad. The Court provides several examples of movies that, although possessing serious literary, artistic or political value and employing only adult actors to perform simulated sexual conduct, fall under the CPPA's proscription on images that "appea[r] to be ... of a minor engaging in sexually explicit conduct," 18 U. S. C. §2256(8)(B). See ante, at 9-10 (citing Romeo and Juliet, Traffic, and American Beauty). Individuals or businesses found to possess just three such films have no defense to criminal liability under the CPPA. §2252A(d).

II


I disagree with the Court, however, that the CPPA's prohibition of virtual-child pornography is overbroad. Before I reach that issue, there are two preliminary questions: whether the ban on virtual-child pornography fails strict scrutiny and whether that ban is unconstitutionally vague. I would answer both in the negative.


The Court has long recognized that the Government has a compelling interest in protecting our Nation's children. See Ferber, supra, at 756-757 (citing cases). This interest is promoted by efforts directed against sexual offenders and actual-child pornography. These efforts, in turn, are supported by the CPPA's ban on virtual-child pornography. Such images whet the appetites of child molesters, §121, 110 Stat. 3009-26, Congressional Findings (4), (10) (B), in notes following 18 U. S. C. §2251, who may use the images to seduce young children, id., finding (3). Of even more serious concern is the prospect that defendants indicted for the production, distribution, or possession of actual-child pornography may evade liability by claiming that the images attributed to them are in fact computer-generated. Id., finding (6)(A). Respondents may be correct that no defendant has successfully employed this tactic. See, e.g., United States v. Fox, 248 F. 3d 394 (CA5 2001); United States v. Vig, 167 F. 3d 443 (CA8 1999); United States v. Kimbrough, 69 F. 3d 723 (CA5 1995); United States v. Coleman, 54 M. J. 869 (A. Ct. Crim. App. 2001). But, given the rapid pace of advances in computer-graphics technology, the Government's concern is reasonable. Computer-generated images lodged with the Court by Amici Curiae National Law Center for Children and Families et al. bear a remarkable likeness to actual human beings. Anyone who has seen, for example, the film Final Fantasy: The Spirits Within (H. Sakaguchi and M. Sakakibara directors, 2001) can understand the Government's concern. Moreover, this Court's cases do not require Congress to wait for harm to occur before it can legislate against it. See Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 212 (1997).


Respondents argue that, even if the Government has a compelling interest to justify banning virtual-child pornography, the "appears to be ... of a minor" language is not narrowly tailored to serve that interest. See Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989). They assert that the CPPA would capture even cartoon-sketches or statues of children that were sexually suggestive. Such images surely could not be used, for instance, to seduce children. I agree. A better interpretation of "appears to be ... of" is "virtually indistinguishable from"--an interpretation that would not cover the examples respondents provide. Not only does the text of the statute comfortably bear this narrowing interpretation, the interpretation comports with the language that Congress repeatedly used in its findings of fact. See, e.g., Congressional Finding (8) following 18 U. S. C. §2251 (discussing how "visual depictions produced wholly or in part by electronic, mechanical, or other means, including by computer, which are virtually indistinguishable to the unsuspecting viewer from photographic images of actual children" may whet the appetites of child molesters). See also id., finding (5), (12). Finally, to the extent that the phrase "appears to be ... of" is ambiguous, the narrowing interpretation avoids constitutional problems such as overbreadth and lack of narrow tailoring. See Crowell v. Benson, 285 U. S. 22, 62 (1932).


Reading the statute only to bar images that are virtually indistinguishable from actual children would not only assure that the ban on virtual-child pornography is narrowly tailored, but would also assuage any fears that the "appears to be ... of a minor" language is vague. The narrow reading greatly limits any risks from "discriminatory enforcement." Reno v. American Civil Liberties Union, 521 U. S. 844, 872 (1997). Respondents maintain that the "virtually indistinguishable from" language is also vague because it begs the question: from whose perspective? This problem is exaggerated. This Court has never required "mathematical certainty" or "meticulous specificity" from the language of a statute. Grayned v. City of Rockford, 408 U. S. 104, 110 (1972).


The Court concludes that the CPPA's ban on virtual-child pornography is overbroad. The basis for this holding is unclear. Although a content-based regulation may serve a compelling state interest, and be as narrowly tailored as possible while substantially serving that interest, the regulation may unintentionally ensnare speech that has serious literary, artistic, political, or scientific value or that does not threaten the harms sought to be combated by the Government. If so, litigants may challenge the regulation on its face as overbroad, but in doing so they bear the heavy burden of demonstrating that the regulation forbids a substantial amount of valuable or harmless speech. See Reno, supra, at 896 (O'Connor, J., concurring in judgment in part and dissenting in part) (citing Broadrick, 413 U. S., at 615). Respondents have not made such a demonstration. Respondents provide no examples of films or other materials that are wholly computer-generated and contain images that "appea[r] to be ... of minors" engaging in indecent conduct, but that have serious value or do not facilitate child abuse. Their overbreadth challenge therefore fails.

III


Although in my view the CPPA's ban on youthful-adult pornography appears to violate the First Amendment, the ban on virtual-child pornography does not. It is true that both bans are authorized by the same text: The statute's definition of child pornography to include depictions that "appea[r] to be" of children in sexually explicit poses. 18 U. S. C. §2256(8)(B). Invalidating a statute due to overbreadth, however, is an extreme remedy, one that should be employed "sparingly and only as a last resort." Broadrick, supra, at 613. We have observed that "t is not the usual judicial practice, . . . nor do we consider it generally desirable, to proceed to an overbreadth issue unnecessarily." Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 484-485 (1989).


Heeding this caution, I would strike the "appears to be" provision only insofar as it is applied to the subset of cases involving youthful-adult pornography. This approach is similar to that taken in United States v. Grace, 461 U. S. 171 (1983), which considered the constitutionality of a federal statute that makes it unlawful to "parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display therein any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement." 40 U. S. C. §13k (1994 ed.). The term "Supreme Court . . . grounds" technically includes the sidewalks surrounding the Court, but because sidewalks have traditionally been considered a public forum, the Court held the statute unconstitutional only when applied to sidewalks.


Although 18 U. S. C. §2256(8)(B) does not distinguish between youthful-adult and virtual-child pornography, the CPPA elsewhere draws a line between these two classes of speech. The statute provides an affirmative defense for those who produce, distribute, or receive pornographic images of individuals who are actually adults, §2252A(c), but not for those with pornographic images that are wholly computer generated. This is not surprising given that the legislative findings enacted by Congress contain no mention of youthful-adult pornography. Those findings focus explicitly only on actual-child pornography and virtual-child pornography. See, e.g., finding (9) following §2251 ("[T]he danger to children who are seduced and molested with the aid of child sex pictures is just as great when the child pornographer or child molester uses visual depictions of child sexual activity produced wholly or in part by electronic, mechanical, or other means, including by computer, as when the material consists of unretouched photographic images of actual children engaging in sexually explicit conduct"). Drawing a line around, and striking just, the CPPA's ban on youthful-child pornography not only is consistent with Congress' understanding of the categories of speech encompassed by §2256(8)(B), but also preserves the CPPA's prohibition of the material that Congress found most dangerous to children.


In sum, I would strike down the CPPA's ban on material that "conveys the impression" that it contains actual-child pornography, but uphold the ban on pornographic depictions that "appea[r] to be" of minors so long as it is not applied to youthful-adult pornography.



--------------------------------------------------------------------------------


FOOTNOTES

Footnote 1


Of course, even the narrow class of youthful looking adult images prohibited under the CPPA is subject to an affirmative defense so long as materials containing such images are not advertised or promoted as child pornography. 18 U. S. C. §2252A(c).


Footnote 2



Justice Scalia does not join this paragraph discussing the statute's legislative record.

 

[popcorn2721]

To treat all nudity as immoral and abusive is blurring the line between normal behavior and inappropriate behavior. And that does a huge disservice to real abuse victims.

ya know, I was talking with my Dad about just that. We both agreed that the world would be a much better place if people would let go of there goddamned moral obligations and focus on right and wrong....you know, "ethics".

 

[Karen Kraft]

Miller v. California - TEXT

We are in trouble.


Not even Supreme Court justices can agree on what the laws are. I prefer my interpretation.

After looking at the text of the Ashcroft case, you can compare it to the opinion in the Miller case (which gives us the "Miller Test," and you will see that the Court is fairly clear on this subject.

---------


U.S. Supreme Court
Miller v. California, 413 U.S. 15 (1973)
Miller v. California

No. 70-73

Argued January 18-19, 1972

Reargued November 7, 1972

Decided June 21, 1973

413 U.S. 15


APPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR COURT

OF CALIFORNIA, COUNTY OF ORANGE

Syllabus

Appellant was convicted of mailing unsolicited sexually explicit material in violation of a California statute that approximately incorporated the obscenity test formulated in Memoirs v. Massachusetts, 383 U. S. 413, 383 U. S. 418 (plurality opinion). The trial court instructed the jury to evaluate the materials by the contemporary community standards of California. Appellant's conviction was affirmed on appeal. In lieu of the obscenity criteria enunciated by the Memoirs plurality, it is held:

1. Obscene material is not protected by the First Amendment. Roth v. United States, 354 U. S. 476, reaffirmed. A work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value. Pp. 413 U. S. 23-24.

2. The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 354 U. S. 489, (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. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary. Pp. 413 U. S. 24-25.

3. The test of "utterly without redeeming social value" articulated in Memoirs, supra, is rejected as a constitutional standard. Pp. 413 U. S. 24-25.

4. The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not employ a "national standard." Pp. 413 U. S. 30-34.

Vacated and remanded.

Page 413 U. S. 16


BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 413 U. S. 37. BRENNAN, J., filed a dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 413 U. S. 47.

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

This is one of a group of "obscenity-pornography" cases being reviewed by the Court in a reexamination of standards enunciated in earlier cases involving what Mr. Justice Harlan called "the intractable obscenity problem." Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 390 U. S. 704 (1968) (concurring and dissenting).

Appellant conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically called "adult" material. After a jury trial, he was convicted of violating California Penal Code § 311.2(a), a misdemeanor, by knowingly distributing obscene matter, [Footnote 1]

Page 413 U. S. 17

and the Appellate Department, Superior Court of California, County of Orange, summarily affirmed the judgment without opinion. Appellant's conviction was specifically

Page 413 U. S. 18

based on his conduct in causing five unsolicited advertising brochures to be sent through the mail in an envelope addressed to a restaurant in Newport Beach, California. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures; they complained to the police.

The brochures advertise four books entitled "Intercourse," "Man-Woman," "Sex Orgies Illustrated," and "An Illustrated History of Pornography," and a film entitled "Marital Intercourse." While the brochures contain some descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed.


I

This case involves the application of a State's criminal obscenity statute to a situation in which sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients who had in no way indicated any desire to receive such materials. This Court has recognized that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material [Footnote 2]

Page 413 U. S. 19

when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles. Stanley v. Georgia, 394 U. S. 557, 394 U. S. 567 (1969); Ginsberg v. New York, 390 U. S. 629, 390 U. S. 637-643 (1968); Interstate Circuit, Inc. v. Dallas, supra, at 390 U. S. 690; Redrup v. New York, 386 U. S. 767, 386 U. S. 769 (1967); Jacobellis v. Ohio, 378 U. S. 184, 378 U. S. 195 (1964). See Rabe v. Washington, 405 U. S. 313, 405 U. S. 317 (1972) (BURGER, C.J., concurring); United States v. Reidel, 402 U. S. 351, 402 U. S. 360-362 (1971) (opinion of MARSHALL, J.); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 343 U. S. 502 (1952); Breard v. Alexandria, 341 U. S. 622, 341 U. S. 644 645 (1951); Kovacs v. Cooper, 336 U. S. 77, 336 U. S. 88-89 (1949); Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 169-170 (1944). Cf. Butler v. Michigan, 352 U. S. 380, 352 U. S. 382-383 (1957); Public Utilities Comm'n v. Pollak, 343 U. S. 451, 343 U. S. 464-465 (1952) It is in this context that we are called

Page 413 U. S. 20

on to define the standards which must be used to identify obscene material that a State may regulate without infringing on the First Amendment as applicable to the States through the Fourteenth Amendment.

The dissent of MR. JUSTICE BRENNAN reviews the background of the obscenity problem, but since the Court now undertakes to formulate standards more concrete than those in the past, it is useful for us to focus on two of the landmark cases in the somewhat tortured history of the Court's obscenity decisions. In Roth v. United States, 354 U. S. 476 (1957), the Court sustained a conviction under a federal statute punishing the mailing of "obscene, lewd, lascivious or filthy . . ." materials. The key to that holding was the Court's rejection of the claim that obscene materials were protected by the First Amendment. Five Justices joined in the opinion stating:

"All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the [First Amendment] guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. . . . This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 571-572: "

". . . There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene. . . . It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social

Page 413 U. S. 21

value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . ."

[Emphasis by Court in Roth opinion.]

"We hold that obscenity is not within the area of constitutionally protected speech or press."

354 U.S. at 354 U. S. 48 85 (footnotes omitted).

Nine years later, in Memoirs v. Massachusetts, 383 U. S. 413 (1966), the Court veered sharply away from the Roth concept and, with only three Justices in the plurality opinion, articulated a new test of obscenity. The plurality held that, under the Roth definition,

"as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material, taken as a whole, appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value."

Id. at 383 U. S. 418. The sharpness of the break with Roth, represented by the third element of the Memoirs test and emphasized by MR. JUSTICE WHITE's dissent, id. at 383 U. S. 460-462, was further underscored when the Memoirs plurality went on to state:

"The Supreme Judicial Court erred in holding that a book need not be 'unqualifiedly worthless before it can be deemed obscene.' A book cannot be proscribed unless it is found to be utterly without redeeming social value."

Id. at 383 U. S. 419 (emphasis in original).

While Roth presumed "obscenity" to be "utterly without redeeming social importance," Memoirs required

Page 413 U. S. 22

that to prove obscenity it must be affirmatively established that the material is "utterly without redeeming social value." Thus, even as they repeated the words of Roth, the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a negative, i.e., that the material was "utterly without redeeming social value" -- a burden virtually impossible to discharge under our criminal standards of proof. Such considerations caused Mr. Justice Harlan to wonder if the "utterly without redeeming social value" test had any meaning at all. See Memoirs v. Massachusetts, id. at 383 U. S. 459 (Harlan, J., dissenting). See also id. at 383 U. S. 461 (WHITE, J., dissenting); United States v. Groner, 479 F.2d 577, 579581 (CA5 1973).

Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under the States' police power. See, e.g., Redrup v. New York, 386 U.S. at 386 U. S. 770-771. We have seen "a variety of views among the members of the Court unmatched in any other course of constitutional adjudication." Interstate Circuit, Inc. v. Dallas, 390 U.S. at 390 U. S. 704-705 (Harlan, J., concurring and dissenting) (footnote omitted). [Footnote 3] This is not remarkable, for in the area

Page 413 U. S. 23

of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression. This is an area in which there are few eternal verities.

The case we now review was tried on the theory that the California Penal Code § 311 approximately incorporates the three-stage Memoirs test, supra. But now the Memoirs test has been abandoned as unworkable by its author, [Footnote 4] and no Member of the Court today supports the Memoirs formulation.


II

This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. Kois v. Wisconsin, 408 U. S. 229 (1972); United States v. Reidel, 402 U.S. at 402 U. S. 354; Roth v. United States, supra, at 354 U. S. 485. [Footnote 5] "The First and Fourteenth Amendments have never been treated as absolutes [footnote omitted]." Breard v. Alexandria, 341 U.S. at 341 U. S. 642, and cases cited. See Times Film Corp. v. Chicago, 365 U. S. 43, 365 U. S. 47-50 (1961); Joseph Burstyn, Inc. v. Wilson, 343 U.S. at 343 U. S. 502. We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be

Page 413 U. S. 24

carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, at 390 U. S. 682-685. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. [Footnote 6] A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 408 U. S. 230, quoting Roth v. United States, supra, at 354 U. S. 489; (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. We do not adopt as a constitutional standard the "utterly without redeeming social value" test of Memoirs v. Massachusetts,

Page 413 U. S. 25

383 U.S. at 383 U. S. 419; that concept has never commanded the adherence of more than three Justices at one time. [Footnote 7] See supra at 413 U. S. 21. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. See Kois v. Wisconsin, supra, at 408 U. S. 232; Memoirs v. Massachusetts, supra, at 383 U. S. 459-460 (Harlan, J., dissenting); Jacobellis v. Ohio, 378 U.S. at 204 (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 284-285 (1964); Roth v. United States, supra, at 354 U. S. 497-498 (Harlan, J., concurring and dissenting).

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can

Page 413 U. S. 26

be exhibited or sold without limit in such public places. [Footnote 8] At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. See Kois v. Wisconsin, supra, at 408 U. S. 230-232; Roth v. United States, supra, at 354 U. S. 487; Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 101-102 (1940). For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members. [Footnote 9]

MR. JUSTICE BRENNAN, author of the opinions of the Court, or the plurality opinions, in Roth v. United States, supra; Jacobellis v. Ohio, supra; Ginzburg v. United

Page 413 U. S. 27

States, 383 U. S. 463 (1966), Mishkin v. New York, 383 U. S. 502 (1966); and Memoirs v. Massachusetts, supra, has abandoned his former position and now maintains that no formulation of this Court, the Congress, or the States can adequately distinguish obscene material unprotected by the First Amendment from protected expression, Paris Adult Theatre I v. Slaton, post, p. 413 U. S. 73 (BRENNAN, J., dissenting). Paradoxically, MR. JUSTICE BRENNAN indicates that suppression of unprotected obscene material is permissible to avoid exposure to unconsenting adults, as in this case, and to juveniles, although he gives no indication of how the division between protected and nonprotected materials may be drawn with greater precision for these purposes than for regulation of commercial exposure to consenting adults only. Nor does he indicate where in the Constitution he finds the authority to distinguish between a willing "adult" one month past the state law age of majority and a willing "juvenile" one month younger.

Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution. See Roth v. United States, supra, at 354 U. S. 491-492. Cf. Ginsberg v. New York, 390 U.S. at 390 U. S. 643. [Footnote 10] If

Page 413 U. S. 28

the inability to define regulated materials with ultimate, god-like precision altogether removes the power of the States or the Congress to regulate, then "hard core" pornography may be exposed without limit to the juvenile, the passerby, and the consenting adult alike, as, indeed, MR. JUSTICE DOUGLAS contends. As to MR. JUSTICE DOUGLAS' position, see United States v. Thirty-seven Photographs, 402 U. S. 363, 402 U. S. 379-380 (1971) (Black, J., joined by DOUGLAS, J., dissenting); Ginzburg v. United States, supra, at 383 U. S. 476, 383 U. S. 491-492 (Black, J., and DOUGLAS, J., dissenting); Jacobellis v. Ohio, supra, at 378 U. S. 196 (Black, J., joined by DOUGLAS, J., concurring); Roth, supra, at 354 U. S. 508-514 (DOUGLAS, J., dissenting). In this belief, however, MR. JUSTICE DOUGLAS now stands alone.

MR. JUSTICE BRENNAN also emphasizes "institutional stress" in justification of his change of view. Noting that "[t]he number of obscenity cases on our docket gives ample testimony to the burden that has been placed upon this Court," he quite rightly remarks that the examination of contested materials "is hardly a source of edification to the members of this Court." Paris Adult

Page 413 U. S. 29

Theatre I v. Slaton, post, at 413 U. S. 92, 413 U. S. 93. He also notes, and we agree, that "uncertainty of the standards creates a continuing source of tension between state and federal courts. . . ."

"The problem is . . . that one cannot say with certainty that material is obscene until at least five members of this Court, applying inevitably obscure standards, have pronounced it so."

Id. at 413 U. S. 93, 413 U. S. 92.

It is certainly true that the absence, since Roth, of a single majority view of this Court as to proper standards for testing obscenity has placed a strain on both state and federal courts. But today, for the first time since Roth was decided in 1957, a majority of this Court has agreed on concrete guidelines to isolate "hard core" pornography from expression protected by the First Amendment. Now we may abandon the casual practice of Redrup v. New York, 386 U. S. 767 (1967), and attempt to provide positive guidance to federal and state courts alike.

This may not be an easy road, free from difficulty. But no amount of "fatigue" should lead us to adopt a convenient "institutional" rationale -- an absolutist, "anything goes" view of the First Amendment -- because it will lighten our burdens. [Footnote 11] "Such an abnegation of judicial supervision in this field would be inconsistent with our duty to uphold the constitutional guarantees." Jacobellis v. Ohio, supra, at 378 U. S. 187-188 (opinion of BRENNAN, J.). Nor should we remedy "tension between state and federal courts" by arbitrarily depriving the States of a power reserved to them under the Constitution, a power which they have enjoyed and exercised continuously from before the adoption of the First Amendment to this day. See Roth v. United States, supra, at 354 U. S. 482-485.

"Our duty admits of no 'substitute for facing up

Page 413 U. S. 30

to the tough individual problems of constitutional judgment involved in every obscenity case.' [Roth v. United States, supra, at 354 U. S. 498]; see Manual Enterprises, Inc. v. Day, 370 U. S. 478, 370 U. S. 488 (opinion of Harlan, J.) [footnote omitted]."

Jacobellis v. Ohio, supra, at 378 U. S. 188 (opinion of BRENNAN, J.).


III

Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the "prurient interest" or is "patently offensive." These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether "the average person, applying contemporary community standards" would consider certain materials "prurient," it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national "community standard" would be an exercise in futility.

As noted before, this case was tried on the theory that the California obscenity statute sought to incorporate the tripartite test of Memoirs. This, a "national" standard of First Amendment protection enumerated by a plurality of this Court, was correctly regarded at the time of trial as limiting state prosecution under the controlling case

Page 413 U. S. 31

law. The jury, however, was explicitly instructed that, in determining whether the "dominant theme of the material as a whole . . . appeals to the prurient interest," and, in determining whether the material "goes substantially beyond customary limits of candor and affronts contemporary community standards of decency," it was to apply "contemporary community standards of the State of California."

During the trial, both the prosecution and the defense assumed that the relevant "community standards" in making the factual determination of obscenity were those of the State of California, not some hypothetical standard of the entire United States of America. Defense counsel at trial never objected to the testimony of the State's expert on community standards [Footnote 12] or to the instructions of the trial judge on "state-wide" standards. On appeal to the Appellate Department, Superior Court of California, County of Orange, appellant for the first time contended that application of state, rather than national, standards violated the First and Fourteenth Amendments.

We conclude that neither the State's alleged failure to offer evidence of "national standards," nor the trial court's charge that the jury consider state community standards, were constitutional errors. Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable "national standards" when attempting to determine whether certain materials are obscene as a matter

Page 413 U. S. 32

of fact. Mr. Chief Justice Warren pointedly commented in his dissent in Jacobellis v. Ohio, supra, at 378 U. S. 200:

"It is my belief that, when the Court said in Roth that obscenity is to be defined by reference to 'community standards,' it meant community standards -- not a national standard, as is sometimes argued. I believe that there is no provable 'national standard.' . . . At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one."

It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City. [Footnote 13]

Page 413 U. S. 33

See Hoyt v. Minnesota, 399 U.S. at 524-525 (1970) (BLACKMUN, J., dissenting); Walker v. Ohio, 398 U.S. at 434 (1970) (BURGER, C.J., dissenting); id. at 434-435 (Harlan, J., dissenting); Cain v. Kentucky, 397 U. S. 319 (1970) (BURGER, C.J., dissenting); id. at 397 U. S. 319-320 (Harlan, J., dissenting); United States v. Groner, 479 F.2d 581-583; O'Meara & Shaffer, Obscenity in The Supreme Court: A Note on Jacobellis v. Ohio, 40 Notre Dame Law. 1, 6-7 (1964). See also Memoirs v. Massachusetts, 383 U.S. at 383 U. S. 458 (Harlan, J., dissenting); Jacobellis v. Ohio, supra, at 378 U. S. 203-204 (Harlan, J., dissenting); Roth v. United States, supra, at 354 U. S. 505-506 (Harlan, J., concurring and dissenting). People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity. As the Court made clear in Mishkin v. New York, 383 U.S. at 383 U. S. 508-509, the primary concern with requiring a jury to apply the standard of "the average person, applying contemporary community standards" is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person -- or indeed a totally insensitive one. See Roth v. United States, supra, at 354 U. S. 489. Cf. the now discredited test in Regina v. Hicklin, [1868] L.R. 3 Q.B. 360. We hold that the requirement that the jury evaluate the materials with reference to "contemporary

Page 413 U. S. 34

standards of the State of California" serves this protective purpose and is constitutionally adequate. [Footnote 14]


IV

The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a "misuse of the great guarantees of free speech and free press. . . ." Breard v. Alexandria, 341 U.S. at 341 U. S. 645. The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent.

"The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of

Page 413 U. S. 35

political and social changes desired by the people,"

Roth v. United States, supra, at 354 U. S. 484 (emphasis added). See Kois v. Wisconsin, 408 U.S. at 408 U. S. 230-232; Thornhill v. Alabama, 310 U.S. at 310 U. S. 101-102. But the public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter. [Footnote 15]

There is no evidence, empirical or historical, that the stern 19th century American censorship of public distribution and display of material relating to sex, see Roth v. United States, supra, at 354 U. S. 482-485, in any way limited or affected expression of serious literary, artistic, political, or scientific ideas. On the contrary, it is beyond any question that the era following Thomas Jefferson to Theodore Roosevelt was an "extraordinarily vigorous period" not just in economics and politics, but in belles lettres and in "the outlying fields of social and political philosophies." [Footnote 16] We do not see the harsh hand

Page 413 U. S. 36

of censorship of ideas -- good or bad, sound or unsound -- and "repression" of political liberty lurking in every state regulation of commercial exploitation of human interest in sex.

MR. JUSTICE BRENNAN finds "it is hard to see how state-ordered regimentation of our minds can ever be forestalled." Paris Adult Theatre I v. Slaton, post, at 413 U. S. 110 (BRENNAN, J., dissenting). These doleful anticipations assume that courts cannot distinguish commerce in ideas, protected by the First Amendment, from commercial exploitation of obscene material. Moreover, state regulation of hard-core pornography so as to make it unavailable to nonadults, a regulation which MR. JUSTICE BRENNAN finds constitutionally permissible, has all the elements of "censorship" for adults; indeed even more rigid enforcement techniques may be called for with such dichotomy of regulation. See Interstate Circuit, Inc. v. Dallas, 390 U.S. at 390 U. S. 690. [Footnote 17] One can concede that the "sexual revolution" of recent years may have had useful byproducts in striking layers of prudery from a subject long irrationally kept from needed ventilation. But it does not follow that no regulation of patently offensive "hard core" materials is needed or permissible; civilized people do not allow unregulated access to heroin because it is a derivative of medicinal morphlne.

In sum, we (a) reaffirm the Roth holding that obscene material is not protected by the First Amendment; (b) hold that such material can be regulated by the States, subject to the specific safeguards enunciated

Page 413 U. S. 37

above, without a showing that the material is "utterly without redeeming social value"; and (c) hold that obscenity is to be determined by applying "contemporary community standards," see Kois v. Wisconsin, supra, at 408 U. S. 230, and Roth v. United States, supra, at 354 U. S. 489, not "national standards." The judgment of the Appellate Department of the Superior Court, Orange County, California, is vacated and the case remanded to that court for further proceedings not inconsistent with the First Amendment standards established by this opinion. See United States v. 12 200-ft. Reels of Film, post at 413 U. S. 130 n. 7.

Vacated and remanded.

[Footnote 1]

At the time of the commission of the alleged offense, which was prior to June 25, 1969, §§ 311.2(a) and 311 of the California Penal Code read in relevant part:

"§ 311.2 Sending or bringing into state for sale or distribution; printing, exhibiting, distributing or possessing within state"

"(a) Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor. . . ."

"§ 311. Definitions"

"As used in this chapter: "

"(a) 'Obscene' means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance."

"(b) 'Matter' means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials."

"(c) 'Person' means any individual, partnership, firm, association, corporation, or other legal entity."

"(d) 'Distribute' means to transfer possession of, whether with or without consideration."

"(e) 'Knowingly' means having knowledge that the matter is obscene."

Section 311(e) of the California Penal Code, supra, was amended on June 25, 1969, to read as follows:

"(e) 'Knowingly' means being aware of the character of the matter."

Cal. Amended Stats.1969, c. 249, § 1, p. 598. Despite appellant's contentions to the contrary, the record indicates that the new § 311(e) was not applied ex post facto to his case, but only the old § 311(e) as construed by state decisions prior to the commission of the alleged offense. See People v. Pinkus, 256 Cal.App.2d 941, 948-950, 63 Cal.Rptr. 680, 685-686 (App. Dept., Superior Ct., Los Angeles, 1967); People v. Campise, 242 Cal.App.2d 905, 914, 51 Cal.Rptr. 815, 821 (App.Dept., Superior Ct., San Diego, 1966). Cf. Bouie v. City of Columbia, 378 U. S. 347 (1964). Nor did § 311.2, supra, as applied, create any "direct, immediate burden on the performance of the postal functions," or infringe on congressional commerce powers under Art. I, § 8, cl. 3. Roth v. United States, 354 U. S. 476, 354 U. S. 494 (1957), quoting Railway Mail Assn. v. Corsi, 326 U. S. 88, 326 U. S. 96 (1945). See also Mishkin v. New York, 383 U. S. 502, 383 U. S. 506 (1966); Smith v. California, 361 U. S. 147, 361 U. S. 150-152 (1959).

[Footnote 2]

This Court has defined "obscene material" as "material which deals with sex in a manner appealing to prurient interest," Roth v. United States, supra, at 354 U. S. 487, but the Roth definition does not reflect the precise meaning of "obscene" as traditionally used in the English language. Derived from the Latin obscaenus ob, to, plus caenum, filth, "obscene" is defined in the Webster's Third New International Dictionary (Unabridged 1969) as

"1a: disgusting to the senses . . . b: grossly repugnant to the generally accepted notions of what is appropriate . . . 2: offensive or revolting as countering or violating some ideal or principle."

The Oxford English Dictionary (1933 ed.) gives a similar definition, "[o]ffensive to the senses, or to taste or refinement; disgusting, repulsive, filthy, foul, abominable, loathsome."

The material we are discussing in this case is more accurately defined as "pornography" or "pornographic material." "Pornography" derives from the Greek (porne, harlot, and graphos, writing). The word now means

"1: a description of prostitutes or prostitution 2: a depiction (as in writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement."

Webster's Third New International Dictionary, supra. Pornographic material which is obscene forms a sub-group of all "obscene" expression, but not the whole, at least as the word "obscene" is now used in our language. We note, therefore, that the words "obscene material," as used in this case, have a specific judicial meaning which derives from the Roth case, i.e., obscene material "which deals with sex." Roth, supra, at 354 U. S. 487. See also ALI Model Penal Code § 251.4(1) "Obscene Defined." (Official Draft 1962.)

[Footnote 3]

In the absence of a majority view, this Court was compelled to embark on the practice of summarily reversing convictions for the dissemination of materials that, at least five members of the Court, applying their separate tests, found to be protected by the First Amendment. Redrup v. New York, 386 U. S. 767 (1967). Thirty-one cases have been decided in this manner. Beyond the necessity of circumstances, however, no justification has ever been offered in support of the Redrup "policy." See Walker v. Ohio, 398 U.S. at 398 U. S. 434-435 (1970) (dissenting opinions of BURGER, C.J., and Harlan, J.). The Redrup procedure has cast us in the role of an unreviewable board of censorship for the 50 States, subjectively judging each piece of material brought before us.

[Footnote 4]

See the dissenting opinion of MR. JUSTICE BRENNAN in Paris Adult Theatre I v. Slaton, post, p. 413 U. S. 73.

[Footnote 5]

As Mr. Chief Justice Warren stated, dissenting, in Jacobellis v. Ohio, 378 U. S. 184, 378 U. S. 200 (1964):

"For all the sound and fury that the Roth test has generated, it has not been proved unsound, and I believe that we should try to live with it -- at least until a more satisfactory definition is evolved. No government -- be it federal, state, or local -- should be forced to choose between repressing all material, including that within the realm of decency, and allowing unrestrained license to publish any material, no matter how vile. There must be a rule of reason in this as in other areas of the law, and we have attempted in the Roth case to provide such a rule."

[Footnote 6]

See, e.g., Oregon Laws 1971, c. 743, Art. 29, §§ 255-262, and Hawaii Penal Code, Tit. 37, §§ 1210-1216, 1972 Hawaii Session Laws, Act 9, c. 12, pt.. II, pp. 126-129, as examples of state laws directed at depiction of defined physical conduct, as opposed to expression. Other state formulations could be equally valid in this respect. In giving the Oregon and Hawaii statutes as examples, we do not wish to be understood as approving of them in all other respects nor as establishing their limits as the extent of state power.

We do not hold, as MR. JUSTICE BRENNAN intimates, that all States other than Oregon must now enact new obscenity statutes. Other existing state statutes, as construed heretofore or hereafter, may well be adequate. See United States v. 12 200-ft. Reel of Film, post, at 413 U. S. 130 n. 7.

[Footnote 7]

"A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene publication. . . ." Kois v. Wisconsin, 408 U. S. 229, 408 U. S. 231 (1972). See Memoirs v. Massachusetts, 383 U. S. 413, 383 U. S. 461 (1966) (WHITE, J., dissenting). We also reject, as a constitutional standard, the ambiguous concept of "social importance." See id. at 383 U. S. 462 (WHITE, J., dissenting).

[Footnote 8]

Although we are not presented here with the problem of regulating lewd public conduct itself, the States have greater power to regulate nonverbal, physical conduct than to suppress depictions or descriptions of the same behavior. In United States v. O'Brien, 391 U. S. 367, 391 U. S. 377 (1968), a case not dealing with obscenity, the Court held a State regulation of conduct which itself embodied both speech and nonspeech elements to be

"sufficiently justified if . . . it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."

See California v. LaRue, 409 U. S. 109, 409 U. S. 117-118 (1972).

[Footnote 9]

The mere fact juries may reach different conclusions as to the same material does not mean that constitutional rights are abridged. As this Court observed in Roth v. United States, 354 U.S. at 354 U. S. 492 n. 30,

"it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system. Cf. Dunlop v. United States, 165 U. S. 486, 165 U. S. 499-500."

[Footnote 10]

As MR. JUSTICE BRENNAN stated for the Court in Roth v. United States, supra at 354 U. S. 491-492:

"Many decisions have recognized that these terms of obscenity statutes are not precise. [Footnote omitted.] This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. '. . . [T]he Constitution does not require impossible standards;' all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. . . .' United States v. Petrillo, 332 U. S. 1, 332 U. S. 7-8. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark"

". . . boundaries sufficiently distinct for judges and juries fairly to administer the law. . . . That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. . . ."

"Id. at 332 U. S. 7. See also United States v. Harriss, 347 U. S. 612, 347 U. S. 624, n. 15; Boyce Motor Lines, Inc. v. United States, 342 U. S. 337, 342 U. S. 340; United States v. Ragen, 314 U. S. 513, 314 U. S. 523-524; United States v. Wurzbach, 280 U. S. 396; Hygrade Provision Co. v. Sherman, 266 U. S. 497; Fox v. Washington, 236 U. S. 273; Nash v. United States, 229 U. S. 373."

[Footnote 11]

We must note, in addition, that any assumption concerning the relative burdens of the past and the probable burden under the standards now adopted is pure speculation.

[Footnote 12]

The record simply does not support appellant's contention, belatedly raised on appeal, that the State's expert was unqualified to give evidence on California "community standards." The expert, a police officer with many years of specialization in obscenity offenses, had conducted an extensive state-wide survey and had given expert evidence on 26 occasions in the year prior to this trial. Allowing such expert testimony was certainly not constitutional error. Cf. United States v. Augenblick, 393 U. S. 348, 393 U. S. 356 (1969).

[Footnote 13]

In Jacobellis v. Ohio, 378 U. S. 184 (1964), two Justices argued that application of "local" community standards would run the risk of preventing dissemination of materials in some places because sellers would be unwilling to risk criminal conviction by testing variations in standards from place to place. Id. at 378 U. S. 193-195 (opinion of BRENNAN, J., joined by Goldberg, J.). The use of "national" standards, however, necessarily implies that materials found tolerable in some places, but not under the "national" criteria, will nevertheless be unavailable where they are acceptable. Thus, in terms of danger to free expression, the potential for suppression seems at least as great in the application of a single nationwide standard as in allowing distribution in accordance with local tastes, a point which Mr. Justice Harlan often emphasized. See Roth v. United States, 354 U.S. at 354 U. S. 506.

Appellant also argues that adherence to a "national standard" is necessary "in order to avoid unconscionable burdens on the free flow of interstate commerce." As noted supra at 413 U. S. 18 n. 1, the application of domestic state police powers in this case did not intrude on any congressional powers under Art. I, § 8, cl. 3, for there is no indication that appellant's materials were ever distributed interstate. Appellant's argument would appear without substance in any event. Obscene material may be validly regulated by a State in the exercise of its traditional local power to protect the general welfare of its population despite some possible incidental effect on the flow of such materials across state lines. See, e.g., Head v. New Mexico Board, 374 U. S. 424 (1963); Huron Portland Cement Co. v. Detroit, 362 U. S. 440 (1960); Breard v. Alexandria, 341 U. S. 622 (1951); H. P. Hood & Sons v. Du Mond, 336 U. S. 525 (1949); Southern Pacific Co. v. Arizona, 325 U. S. 761 (1945); Baldwin v. G.A.F. Seelig, Inc., 294 U. S. 511 (1935); Sligh v. Kirkwood, 237 U. S. 52 (1915).

[Footnote 14]

Appellant's jurisdictional statement contends that he was subjected to "double jeopardy" because a Los Angeles County trial judge dismissed, before trial, a prior prosecution based on the same brochures, but apparently alleging exposures at a different time in a different setting. Appellant argues that, once material has been found not to be obscene in one proceeding, the State is "collaterally estopped" from ever alleging it to be obscene in a different proceeding. It is not clear from the record that appellant properly raised this issue, better regarded as a question of procedural due process than a "double jeopardy" claim, in the state courts below. Appellant failed to address any portion of his brief on the merits to this issue, and appellee contends that the question was waived under California law because it was improperly pleaded at trial. Nor is it totally clear from the record before us what collateral effect the pretrial dismissal might have under state law. The dismissal was based, at least in part, on a failure of the prosecution to present affirmative evidence required by state law, evidence which was apparently presented in this case. Appellant's contention, therefore, is best left to the California courts for further consideration on remand. The issue is not, in any event, a proper subject for appeal. See Mishkin v. New York, 383 U. S. 502, 383 U. S. 512-514 (1966).

[Footnote 15]

In the apt words of Mr. Chief Justice Warren, appellant in this case was

"plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect. I believe that the State and Federal Governments can constitutionally punish such conduct. That is all that these cases present to us, and that is all we need to decide."

Roth v. United States, supra, at 354 U. S. 496 (concurring opinion).

[Footnote 16]

See 2 V. Parrington, Main Currents in American Thought ix et seq. (1930). As to the latter part of the 19th century, Parrington observed

"A new age had come and other dreams -- the age and the dreams of a middle-class sovereignty. . . . From the crude and vast romanticisms of that vigorous sovereignty emerged eventually a spirit of realistic criticism, seeking to evaluate the worth of this new America, and discover if possible other philosophies to take the place of those which had gone down in the fierce battles of the Civil War."

Id. at 474. Cf. 2 S. Morison, H. Commager & W. Leuchtenburg, The Growth of the American Republic 197-233 (6th ed.1969); Paths of American Thought 123-166, 203-290 (A. Schlesinger & M. White ed.1963) (articles of Fleming, Lerner, Morton & Lucia White, E. Rostow, Samuelson, Kazin, Hofstadter); and H. Wish, Society and Thought in Modern America 337-386 (1952).

[Footnote 17]

"[W]e have indicated . . . that, because of its strong and abiding interest in youth, a State may regulate the dissemination to juveniles of, and their access to, material objectionable as to them, but which a State clearly could not regulate as to adults. Ginsberg v. New York, . . . [390 U.S. 629 (1968)]."

Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 390 U. S. 690 (1968) (footnote omitted).

MR. JUSTICE DOUGLAS, dissenting.


I

Today we leave open the way for California [Footnote 2/1] to send a man to prison for distributing brochures that advertise books and a movie under freshly written standards defining obscenity which until today is decision were never the part of any law.

The Court has worked hard to define obscenity and concededly has failed. In Roth v. United States, 354 U. S. 476, it ruled that "[o]bscene material is material which deals with sex in a manner appealing to prurient interest." Id. at 354 U. S. 487. Obscenity, it was said, was rejected by the First Amendment because it is "utterly without redeeming

Page 413 U. S. 38

social importance." Id. at 354 U. S. 484. The presence of a "prurient interest" was to be determined by "contemporary community standards." Id. at 354 U. S. 489. That test, it has been said, could not be determined by one standard here and another standard there, Jacobellis v. Ohio, 378 U. S. 184, 378 U. S. 194, but "on the basis of a national standard." Id. at 378 U. S. 195. My Brother STEWART, in Jacobellis, commented that the difficulty of the Court in giving content to obscenity was that it was "faced with the task of trying to define what may be indefinable." Id. at 378 U. S. 197.

In Memoirs v. Massachusetts, 383 U. S. 413, 383 U. S. 418, the Roth test was elaborated to read as follows:

"[T]hree elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value."

In Ginzburg v. United States, 383 U. S. 463, a publisher was sent to prison, not for the kind of books and periodicals he sold, but for the manner in which the publications were advertised. The "leer of the sensualist" was said to permeate the advertisements. Id. at 383 U. S. 468. The Court said,

"Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity."

Id. at 383 U. S. 470. As Mr. Justice Black said in dissent,

". . . Ginzburg . . . is now finally and authoritatively condemned to serve five years in prison for distributing printed matter about sex which neither Ginzburg nor anyone else could possibly have known to be criminal."

Id. at 383 U. S. 476. That observation by Mr. Justice Black is underlined by the fact that the Ginzburg decision was five to four.

Page 413 U. S. 39


A further refinement was added by Ginsberg v. New York, 390 U. S. 629, 390 U. S. 641, where the Court held that "it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors."

But even those members of this Court who had created the new and changing standards of "obscenity" could not agree on their application. And so we adopted a per curiam treatment of so-called obscene publications that seemed to pass constitutional muster under the several constitutional tests which had been formulated. See Redrup v. New York, 386 U. S. 767. Some condemn it if its "dominant tendency might be to deprave or corrupt' a reader." [Footnote 2/2] Others look not to the content of the book, but to whether it is advertised "`to appeal to the erotic interests of customers.'" [Footnote 2/3] Some condemn only "hard-core pornography," but even then a true definition is lacking. It has indeed been said of that definition, "I could never succeed in [defining it] intelligibly," but "I know it when I see it." [Footnote 2/4]

Today we would add a new three-pronged test:

"(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."

Those are the standards we ourselves have written into the Constitution. [Footnote 2/5] Yet how under these vague tests can

Page 413 U. S. 40

we sustain convictions for the sale of an article prior to the time when some court has declared it to be obscene?

Today the Court retreats from the earlier formulations of the constitutional test and undertakes to make new definitions. This effort, like the earlier ones, is earnest and well intentioned. The difficulty is that we do not deal with constitutional terms, since "obscenity" is not mentioned in the Constitution or Bill of Rights. And the First Amendment makes no such exception from "the press" which it undertakes to protect nor, as I have said on other occasions, is an exception necessarily implied, for there was no recognized exception to the free press at the time the Bill of Rights was adopted which treated "obscene" publications differently from other types of papers, magazines, and books. So there are no constitutional guidelines for deciding what is and what is not "obscene." The Court is at large because we deal with tastes and standards of literature. What shocks me may

Page 413 U. S. 41

be sustenance for my neighbor. What causes one person to boil up in rage over one pamphlet or movie may reflect only his neurosis, not shared by others. We deal here with a regime of censorship which, if adopted, should be done by constitutional amendment after full debate by the people.

Obscenity cases usually generate tremendous emotional outbursts. They have no business being in the courts. If a constitutional amendment authorized censorship, the censor would probably be an administrative agency. Then criminal prosecutions could follow as, if, and when publishers defied the censor and sold their literature. Under that regime, a publisher would know when he was on dangerous ground. Under the present regime -- whether the old standards or the new ones are used -- the criminal law becomes a trap. A brand new test would put a publisher behind bars under a new law improvised by the courts after the publication. That was done in Ginzburg, and has all the evils of an ex post facto law.

My contention is that, until a civil proceeding has placed a tract beyond the pale, no criminal prosecution should be sustained. For no more vivid illustration of vague and uncertain laws could be designed than those we have fashioned. As Mr. Justice Harlan has said:

"The upshot of all this divergence in viewpoint is that anyone who undertakes to examine the Court's decisions since Roth which have held particular material obscene or not obscene would find himself in utter bewilderment."

Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 390 U. S. 707.

In Bouie v. City of Columbia, 378 U. S. 347, we upset a conviction for remaining on property after being asked to leave, while the only unlawful act charged by the statute was entering. We held that the defendants had received no "fair warning, at the time of their conduct"

Page 413 U. S. 42

while on the property "that the act for which they now stand convicted was rendered criminal" by the state statute. Id. at 378 U. S. 355. The same requirement of "fair warning" is due here, as much as in Bouie. The latter involved racial discrimination; the present case involves rights earnestly urged as being protected by the First Amendment. In any case -- certainly when constitutional rights are concerned -- we should not allow men to go to prison or be fined when they had no "fair warning" that what they did was criminal conduct.


II

If a specific book, play, paper, or motion picture has in a civil proceeding been condemned as obscene and review of that finding has been completed, and thereafter a person publishes, shows, or displays that particular book or film, then a vague law has been made specific. There would remain the underlying question whether the First Amendment allows an implied exception in the case of obscenity. I do not think it does, [Footnote 2/6] and my views

Page 413 U. S. 43

on the issue have been stated over and over again. [Footnote 2/7] But at least a criminal prosecution brought at that juncture would not violate the time-honored "void for vagueness" test. [Footnote 2/8]

No such protective procedure has been designed by California in this case. Obscenity -- which even we cannot define with precision -- is a hodge-podge. To send

Page 413 U. S. 44

men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and due process.


III

While the right to know is the corollary of the right to speak or publish, no one can be forced by government to listen to disclosure that he finds offensive. That was the basis of my dissent in Public Utilities Comm'n v. Pollak, 343 U. S. 451, 343 U. S. 467, where I protested against making streetcar passengers a "captive" audience. There is no "captive audience" problem in these obscenity cases. No one is being compelled to look or to listen. Those who enter newsstands or bookstalls may be offended by what they see. But they are not compelled by the State to frequent those places; and it is only state or governmental action against which the First Amendment, applicable to the States by virtue of the Fourteenth, raises a ban.

The idea that the First Amendment permits government to ban publications that are "offensive" to some people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal or magazine in some benighted place. The First Amendment was designed "to invite dispute," to induce "a condition of unrest," to "create dissatisfaction with conditions as they are," and even to stir "people to anger." Terminiello v. Chicago, 337 U. S. 1, 337 U. S. 4. The idea that the First Amendment permits punishment for ideas that are "offensive" to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for

Page 413 U. S. 45

dispensing tranquilizers to the people. Its prime function was to keep debate open to "offensive" as well as to "staid" people. The tendency throughout history has been to subdue the individual and to exalt the power of government. The use of the standard "offensive" gives authority to government that cuts the very vitals out of the First Amendment. [Footnote 2/9] As is intimated by the Court's opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV, or over the radio. By reason of the First Amendment -- and solely because of it -- speakers and publishers have not been threatened or subdued because their thoughts and ideas may be "offensive" to some.

The standard "offensive" is unconstitutional in yet another way. In Coates v. City of Cincinnati, 402 U. S. 611, we had before us a municipal ordinance that made it a crime for three or more persons to assemble on a street and conduct themselves "in a manner annoying to persons

Page 413 U. S. 46

passing by." We struck it down, saying:

"If three or more people meet together on a sidewalk or street corner, they must conduct themselves so as not to annoy any police officer or other person who should happen to pass by. In our opinion, this ordinance is unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct."

"Conduct that annoys some people does not annoy others. Thus, the ordinance is vague not in the sense that it requires a person to conform his conduct to an imprecise but comprehensive normative standard, but rather in the sense that no standard of conduct is specified at all."

Id. at 402 U. S. 614.

How we can deny Ohio the convenience of punishing people who "annoy" others and allow California power to punish people who publish materials "offensive" to some people is difficult to square with constitutional requirements.

If there are to be restraints on what is obscene, then a constitutional amendment should be the way of achieving the end. There are societies where religion and mathematics are the only free segments. It would be a dark day for America if that were our destiny. But the people can make it such if they choose to write obscenity into the Constitution and define it.

We deal with highly emotional, not rational, questions. To many, the Song of Solomon is obscene. I do not think we, the judges, were ever given the constitutional power to make definitions of obscenity. If it is to be defined, let the people debate and decide by a constitutional amendment what they want to ban as obscene and what standards they want the legislatures and the courts to apply. Perhaps the people will decide that the path towards a mature, integrated society requires

Page 413 U. S. 47

that all ideas competing for acceptance must have no censor. Perhaps they will decide otherwise. Whatever the choice, the courts will have some guidelines. Now we have none except our own predilections.

[Footnote 2/1]

California defines "obscene matter" as

"matter, taken as a whole, the predominant appeal of which to the average person, applying contemporary standards, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance."

Calif. Penal Code § 311(a).

[Footnote 2/2]

Roth v. United States, 354 U. S. 476, 354 U. S. 502 (opinion of Harlan, J.).

[Footnote 2/3]

Ginzburg v. United States, 383 U. S. 463, 383 U. S. 467.

[Footnote 2/4]

Jacobellis v. Ohio, 378 U. S. 184, 378 U. S. 197 (STEWART, J., concurring).

[Footnote 2/5]

At the conclusion of a two-year study, the U.S. Commission on Obscenity and Pornography determined that the standards we have written interfere with constitutionally protected materials:

"Society's attempts to legislate for adults in the area of obscenity have not been successful. Present laws prohibiting the consensual sale or distribution of explicit sexual materials to adults are extremely unsatisfactory in their practical application. The Constitution permits material to be deemed 'obscene' for adults only if, as a whole, it appeals to the 'prurient' interest of the average person, is 'patently offensive' in light of 'community standards,' and lacks 'redeeming social value.' These vague and highly subjective aesthetic, psychological and moral tests do not provide meaningful guidance for law enforcement officials, juries or courts. As a result, law is inconsistently and sometimes erroneously applied, and the distinctions made by courts between prohibited and permissible materials often appear indefensible. Errors in the application of the law and uncertainty about its scope also cause interference with the communication of constitutionally protected materials."

Report of the Commission on Obscenity and Pornography 53 (1970).

[Footnote 2/6]

It is said that "obscene" publications can be banned on authority of restraints on communications incident to decrees restraining unlawful business monopolies or unlawful restraints of trade, Sugar Institute v. United States, 297 U. S. 553, 297 U. S. 597, or communications respecting the sale of spurious or fraudulent securities. Hall v. Geier-Jones Co., 242 U. S. 539, 242 U. S. 549; Caldwell v. Sioux Falls Stock Yards Co., 242 U. S. 559, 242 U. S. 567; Merrick v. Halsey & Co., 242 U. S. 568, 242 U. S. 584. The First Amendment answer is that, whenever speech and conduct are brigaded -- as they are when one shouts "Fire" in a crowded theater -- speech can be outlawed. Mr. Justice Black, writing for a unanimous Court in Giboney v. Empire Storage Co., 336 U. S. 490, stated that labor unions could be restrained from picketing a firm in support of a secondary boycott which a State had validly outlawed. Mr. Justice Black said:

"It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the contention now."

Id. at 336 U. S. 498.

[Footnote 2/7]

See United States v. 12 200-ft. Reels of Film, post, p. 413 U. S. 123; United States v. Orito, post, p. 413 U. S. 139; Kois v. Wisconsin, 408 U. S. 229; Byrne v. Karalexis, 396 U. S. 976, 977; Ginsberg v. New York, 390 U. S. 629, 390 U. S. 650; Jacobs v. New York, 388 U. S. 431, 388 U. S. 436; Ginzburg v. United States, 383 U. S. 463, 383 U. S. 482; Memoirs v. Massachusetts, 383 U. S. 413, 383 U. S. 424; Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 372 U. S. 72; Times Film Corp. v. Chicago, 365 U. S. 43, 365 U. S. 78; Smith v. California, 361 U. S. 147, 361 U. S. 167; Kingsley Pictures Corp. v. Regents, 360 U. S. 684, 360 U. S. 697; Roth v. United States, 354 U. S. 476, 354 U. S. 508; Kingsley Books, Inc. v. Brown, 354 U. S. 436, 354 U. S. 446; Superior Films, Inc. v. Department of Education, 346 U. S. 587, 346 U. S. 588; Gelling v. Texas, 343 U. S. 60.

[Footnote 2/8]

The Commission on Obscenity and Pornography has advocated such a procedure:

"The Commission recommends the enactment, in all jurisdictions which enact or retain provisions prohibiting the dissemination of sexual materials to adults or young persons, of legislation authorizing prosecutors to obtain declaratory judgments as to whether particular materials fall within existing legal prohibitions. . . ."

"A declaratory judgment procedure . . . would permit prosecutors to proceed civilly, rather than through the criminal process, against suspected violations of obscenity prohibition. If such civil procedures are utilized, penalties would be imposed for violation of the law only with respect to conduct occurring after a civil declaration is obtained. The Commission believes this course of action to be appropriate whenever there is any existing doubt regarding the legal status of materials; where other alternatives are available, the criminal process should not ordinarily be invoked against persons who might have reasonably believed, in good faith, that the books or films they distributed were entitled to constitutional protection, for the threat of criminal sanctions might otherwise deter the free distribution of constitutionally protected material."

Report of the Commission on Obscenity and Pornography 63 (1970).

[Footnote 2/9]

Obscenity law has had a capricious history:

"The white slave traffic was first exposed by W. T. Stead in a magazine article, 'The Maiden Tribute.' The English law did absolutely nothing to the profiteers in vice, but put Stead in prison for a year for writing about an indecent subject. When the law supplies no definite standard of criminality, a judge, in deciding what is indecent or profane, may consciously disregard the sound test of present injury, and proceeding upon an entirely different theory may condemn the defendant because his words express ideas which are thought liable to cause bad future consequences. Thus, musical comedies enjoy almost unbridled license, while a problem play is often forbidden because opposed to our views of marriage. In the same way, the law of blasphemy has been used against Shelley's Queen Mab and the decorous promulgation of pantheistic ideas on the ground that to attack religion is to loosen the bonds of society and endanger the state. This is simply a round-about modern method to make heterodoxy in sex matters and even in religion a crime."

Z. Chafee, Free Speech in the United States 151 (1942).

MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, dissenting.

In my dissent in Paris Adult Theatre I v. Slaton, post, p. 413 U. S. 73, decided this date, I noted that I had no occasion to consider the extent of state power to regulate the distribution of sexually oriented material to juveniles or the offensive exposure of such material to unconsenting adults. In the case before us, appellant was convicted of distributing obscene matter in violation of California Penal Code § 311.2, on the basis of evidence that he had caused to be mailed unsolicited brochures advertising various books and a movie. I need not now decide whether a statute might be drawn to impose, within the requirements of the First Amendment, criminal penalties for the precise conduct at issue here. For it is clear that, under my dissent in Paris Adult Theatre I, the statute under which the prosecution was brought is unconstitutionally overbroad, and therefore invalid on its face. *

"[T]he transcendent value to all society of constitutionally protected expression is deemed to justify allowing 'attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity."

Gooding v. Wilson, 405 U. S. 518, 405 U. S. 521 (1972), quoting

Page 413 U. S. 48

from Dombrowski v. Pfister, 380 U. S. 479, 380 U. S. 486 (1965). See also Baggett v. Bullitt, 377 U. S. 360, 377 U. S. 366 (1964); Coates v. City of Cincinnati, 402 U. S. 611, 402 U. S. 616 (1971); id. at 402 U. S. 619-620 (WHITE, J., dissenting); United States v. Raines, 362 U. S. 17, 362 U. S. 21-22 (1960); NAACP v. Button, 371 U. S. 415, 371 U. S. 433 (1963). Since my view in Paris Adult Theatre I represents a substantial departure from the course of our prior decisions, and since the state courts have as yet had no opportunity to consider whether a "readily apparent construction suggests itself as a vehicle for rehabilitating the [statute] in a single prosecution," Dombrowski v. Pfister, supra, at 380 U. S. 491, I would reverse the judgment of the Appellate Department of the Superior Court and remand the case for proceedings not inconsistent with this opinion. See Coates v. City of Cincinnati, supra, at 402 U. S. 616.

* Cal. Penal Code § 311.2(a) provides that

"Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor."

 

[MechaBlade]

Are you spamming your own thread, KK?

 

[Karen Kraft]

Are you spamming your own thread, KK?

No.

I am providing the actual text of what the United States Supreme Court has said in a couple of cases. I provide the text here instead of providing a link to it for a couple of reasons, not the least of which is that what I first located was a pdf file, etc. More importantly, people always like to think that what the Court says is what CNN or FOX or NBC say that it said. People here are smart enough to read what the actual text is and see for themselves what was said, and not rely on idiot newscasters to tell them.

Those who only want the major point of the case can simply read the first few paragraphs and move on. Those who actually are interested in Free Speech (that's sort of what this web site started out as [excuse my grammar], might like to see it all laid out in its original context.

People who are either too stupid or too lazy to learn what the law actually is, but who prefer to listen to "the news" and "make up their own minds on what the law is" tend to not do all that well in life.

Just my opinion in that regard.

 

[Pookie]

I disagree with the OP that porn isn't obscenity and that obscenity is based on whether or not it appeals to perverts. It's based on whether it offends little old ladies and baptists.

Bingo. The laws are as clear as mud when it comes to obscenity.

 

[Pookie]

After looking at the text of the Ashcroft case, you can compare it to the opinion in the Miller case (which gives us the "Miller Test," and you will see that the Court is fairly clear on this subject.

The Miller test "clarity" assures that something that is legally obscene in one jurisdiction may not be in another.

 

[TurdFergeson]

The Miller test "clarity" assures that something that is legally obscene in one jurisdiction may not be in another.

You offend my delicate sensibilities, Pookster!

 

[MechaBlade]

No.

I am providing the actual text of what the United States Supreme Court has said in a couple of cases. I provide the text here instead of providing a link to it for a couple of reasons, not the least of which is that what I first located was a pdf file, etc. More importantly, people always like to think that what the Court says is what CNN or FOX or NBC say that it said. People here are smart enough to read what the actual text is and see for themselves what was said, and not rely on idiot newscasters to tell them.

You may want to consider posting the link (or highlights) when the text is over 11,000 words.

I prefer to base my legal opinion on what the courts do, not what they say.

Bingo. The laws are as clear as mud when it comes to obscenity.

The Miller test "clarity" assures that something that is legally obscene in one jurisdiction may not be in another.

Thank you, my point exactly.

 

[Karen Kraft]

1. You may want to consider posting the link (or highlights) when the text is over 11,000 words.

2. I prefer to base my legal opinion on what the courts do, not what they say.

3' Thank you, my point exactly.

1. Many links have commentary which only distorts the verbatim presentation.
It is important as well to see what the dissenting opinion has to say, as that tends either to echo the trends of the past or foreshadow the trends of the future;

2. Courts of appeal, such as the United States Supreme Court don't "DO" anything. They only "Say." That's their job. In the Ashcroft v. Free Speech case, they "said" that the virtual child porn law was unenforceable because it was violative of the First Amendment on its face. Is that "Saying," or "Doing?"

3. Just so! The Miller Test for obscenity is, indeed, community-based, which is 180 degrees opposed to the test for Child Pornography. That was the point of the OP of the thread -- the different ways in which the law handles each kind of unprotected speech.

 

[MechaBlade]

1. Many links have commentary which only distorts the verbatim presentation.
It is important as well to see what the dissenting opinion has to say, as that tends either to echo the trends of the past or foreshadow the trends of the future;

Fine, disagree. Find somebody at Lit who will read that entire thing.

2. Courts of appeal, such as the United States Supreme Court don't "DO" anything. They only "Say." That's their job. In the Ashcroft v. Free Speech case, they "said" that the virtual child porn law was unenforceable because it was violative of the First Amendment on its face. Is that "Saying," or "Doing?"

Both. The court interprets law, and in doing so, makes law. I should have added that I also base my opinion on what the executive branch does. They definitely "do."

3. Just so! The Miller Test for obscenity is, indeed, community-based, which is 180 degrees opposed to the test for Child Pornography. That was the point of the OP of the thread -- the different ways in which the law handles each kind of unprotected speech.

I see what you mean about the child porn not being judged like obscenity. Still, child porn (some, at least) is prosecuted under the same obscenity laws as regular porn is, which is my point and why I said I disagree that porn isn't obscenity.

 

[Sean Renaud]

I think the real problem is that in the US there is no definition of obscenity. The "I'll know it when I see it" attitude allows for something to be obscene one day and cool the day after.

 

[Karen Kraft]

Fine, disagree. Find somebody at Lit who will read that entire thing.


Both. The court interprets law, and in doing so, makes law. I should have added that I also base my opinion on what the executive branch does. They definitely "do."


I see what you mean about the child porn not being judged like obscenity. Still, child porn (some, at least) is prosecuted under the same obscenity laws as regular porn is, which is my point and why I said I disagree that porn isn't obscenity.

There are several people -- those actually interested in the subject -- who have or will read the case opinions. As Supreme Court opinions go, these are actually rather unfractured and not "long" by any means. Also, like I said, you can read the meat of the opinion and skip the legal argument where they discuss earlier opinions in somewhat similar cases. They do that for the legal profession and judges in lower courts. For the general public, the statement of the law is clearly set out right from the start. The explanation of how they got there is for those to whom it matters. Clearly, you are not one of those people.

The Executive Branch has nothing to do with one's opinion of the Supreme Court or your earlier comments regarding what is "said" and what is "done" BY THE COURTS! If you meant "saying" and "doing" by the GOVERNMENT, of course you are right. The Executive Branch does a whole lot of "doing," since that is their job: they execute the laws. The Judicial Branch interprets the laws passed by Congress (and others) and interprets them in light of the United States Constitution and the past cases that have dealt with the Constitution's meaning in similar cases.

You are 100% wrong as to the enforcement of child pornography laws being the same or similar to the enforcement of obscenity laws: entirely different elements of the crime, entirely different test the trial court is to use to apply the law to the facts of the case, and entirely different set of penalties. While it is true that some materials that are obscene AND involve children. In those cases, the so-called lesser crime carries the stiffer penalty, so such material would never reach the Miller Test. Instead, the court would simply apply the clear letter of the child pornography test and find (or let the jury find) for conviction. Like I said in the OP, the lower threshold for child pornography is necessary since pornography is quasi-protected speech. Without child pornography laws, many materials would enjoy legal protections that they ought not enjoy! Examples:

If there was a screenplay that featured a stepfather and a stepdaughter of 13 or 14 years of age, played by an actress over the age of 18, and they ended a particular scene with the two of them hugging in the same bed, fading out to dramatic music, it would be illegal (unprotected speech) due to the suggestion of coitus between the two of them. No nudity, no bondage, etc. Under the Miller Test, it would fail 100% as obscenity. However, under the more clear and easy to identify rules of child pornography, criminal prosecution would be guaranteed success. It meets the Child Pornography test -- qualifies as unprotected -- the defendant has no First Amendment protection from prosecution, thus conviction is assured.

Same scene, but the child is naked, spreadeagled on the bed and actual coitus is seen. Clearly, the Miller Test could be applied as such material is obscene in every community within the national (and most international) jurisdictions. But why prosecute for obscenity and have to deal with "community standards," appealing to perverts, etc., when you can get an easy conviction on the child pornography charge? Simply put: ALL obscene materials that feature kids are child pornography although MOST child pornography is not obscene -- but nevertheless illegal.

 

[Pookie]

3. Just so! The Miller Test for obscenity is, indeed, community-based, which is 180 degrees opposed to the test for Child Pornography. That was the point of the OP of the thread -- the different ways in which the law handles each kind of unprotected speech.

While the child porn laws do add some objectivity to it, the community issue isn't eliminated by a long shot. For example ...

http://www.dlisted.com/files/mileyvf1.jpg

Take Miley's clothes off and then tell me whether it's child porn or not. Then ask around. Who will make the interpretation whether the image is for a sexual purpose or not? I bet I could find locations that would rule it as child porn using the "strict" definition posted in the OP ... and others that wouldn't. While it looks on the surface to be a 180 degree turn from community-based standards, it's far from it.

You unintentionally minimized the subjectivity of the criteria by portraying the baby bath pics incident as just overzealous DAs in the OP. It goes much much deeper than that with some communities. It's not that some might think it would appeal to pedos. Some actually think it's child porn ... period. They see nothing but a sexual purpose for nudity no matter how it's portrayed.

 

[Pookie]

There are several people -- those actually interested in the subject -- who have or will read the case opinions. As Supreme Court opinions go, these are actually rather unfractured and not "long" by any means. Also, like I said, you can read the meat of the opinion and skip the legal argument where they discuss earlier opinions in somewhat similar cases. They do that for the legal profession and judges in lower courts. For the general public, the statement of the law is clearly set out right from the start. The explanation of how they got there is for those to whom it matters. Clearly, you are not one of those people.

The Executive Branch has nothing to do with one's opinion of the Supreme Court or your earlier comments regarding what is "said" and what is "done" BY THE COURTS! If you meant "saying" and "doing" by the GOVERNMENT, of course you are right. The Executive Branch does a whole lot of "doing," since that is their job: they execute the laws. The Judicial Branch interprets the laws passed by Congress (and others) and interprets them in light of the United States Constitution and the past cases that have dealt with the Constitution's meaning in similar cases.

You are 100% wrong as to the enforcement of child pornography laws being the same or similar to the enforcement of obscenity laws: entirely different elements of the crime, entirely different test the trial court is to use to apply the law to the facts of the case, and entirely different set of penalties. While it is true that some materials that are obscene AND involve children. In those cases, the so-called lesser crime carries the stiffer penalty, so such material would never reach the Miller Test. Instead, the court would simply apply the clear letter of the child pornography test and find (or let the jury find) for conviction. Like I said in the OP, the lower threshold for child pornography is necessary since pornography is quasi-protected speech. Without child pornography laws, many materials would enjoy legal protections that they ought not enjoy! Examples:

If there was a screenplay that featured a stepfather and a stepdaughter of 13 or 14 years of age, played by an actress over the age of 18, and they ended a particular scene with the two of them hugging in the same bed, fading out to dramatic music, it would be illegal (unprotected speech) due to the suggestion of coitus between the two of them. No nudity, no bondage, etc. Under the Miller Test, it would fail 100% as obscenity. However, under the more clear and easy to identify rules of child pornography, criminal prosecution would be guaranteed success. It meets the Child Pornography test -- qualifies as unprotected -- the defendant has no First Amendment protection from prosecution, thus conviction is assured.

Same scene, but the child is naked, spreadeagled on the bed and actual coitus is seen. Clearly, the Miller Test could be applied as such material is obscene in every community within the national (and most international) jurisdictions. But why prosecute for obscenity and have to deal with "community standards," appealing to perverts, etc., when you can get an easy conviction on the child pornography charge? Simply put: ALL obscene materials that feature kids are child pornography although MOST child pornography is not obscene -- but nevertheless illegal.

I'm not sure you have much of an understanding of this based on this post. Your first example with the screenplay wouldn't be child porn as the law is written, IMO.

Here's the law ...

http://www.law.cornell.edu/uscode/18/2256.html

 

[Pookie]

I think the real problem is that in the US there is no definition of obscenity. The "I'll know it when I see it" attitude allows for something to be obscene one day and cool the day after.

There's always a gray area when it comes to obscenity and child porn. There always will be too.

 

[Karen Kraft]

While the child porn laws do add some objectivity to it, the community issue isn't eliminated by a long shot. For example ...

http://www.dlisted.com/files/mileyvf1.jpg

Take Miley's clothes off and then tell me whether it's child porn or not. Then ask around. Who will make the interpretation whether the image is for a sexual purpose or not? I bet I could find locations that would rule it as child porn using the "strict" definition posted in the OP ... and others that wouldn't. While it looks on the surface to be a 180 degree turn from community-based standards, it's far from it.

You unintentionally minimized the subjectivity of the criteria by portraying the baby bath pics incident as just overzealous DAs in the OP. It goes much much deeper than that with some communities. It's not that some might think it would appeal to pedos. Some actually think it's child porn ... period. They see nothing but a sexual purpose for nudity no matter how it's portrayed.

That exact photograph, within the four corners of the document, would not be child pornography. Community standards are not applied in the test for child pornography. The picture, as it appears in your post, absent all clothing would survive the test for child pornography (irrespective of the relationship of the actors or models in the material). Why? Let's examine it:

1. Is/are any of the actors or models under the age of 18? YES.

2. Does the image portray the minor involved in sexual intercourse, genital to genital, oral to genital, oral to anal contact? NO.

3. Does the image portray bestiality, masturbation, sadistic or masochistic abuse or lascivious exhibition of the genitals or pubic area of any person? NO.

Since the mere depiction or presentation of nudity per se is not even pornography, the depiction or presentation of nudity of a person under the age of 18 years, not engaged in any of the above forbidden circumstances, is not child pornography. Any prosecution of that picture under the Child Pornography law would eventually fail as a violation of the producers' right of free speech and expression under the First Amendment prohibitions against laws (and enforcement or abridgment) of Free Speech and Expression.

Does that mean that some jerk-water D.A. might prosecute and get a jury to convict? Sure! They do it all the time. They can convict you in some places for saying that the theory of evolution ought to be considered by students! That does not make such prosecutions right. It just makes defense against b.s. prosecutions more expensive, which is why grannies just give up the two pictures of baby in the bathtub – because it takes a whole lot of money to defend yourself under these circumstances and it’s cheaper just to give up the snapshots and walk away. THAT IS WHY people who I generally dislike, such as the ACLU will always have a warm spot in my heart. As said elsewhere, who will take up the defense of the accused granny, the unpopular defendant? Nobody but outfits like the ACLU. For me, it’s a love-hate relationship; but they sort of expect that, as that is sort of their business.

 

[Karen Kraft]

Duplicate Post.

-- sorry --

 

[Karen Kraft]

There's always a gray area when it comes to obscenity and child porn. There always will be too.

That's just not true.

There is a whole lot of gray area in obscenity.

Were there gray area in child pornography, we would see a whole lot more of it on the Internet. It is clearly identified and violators are easily prosecuted if they are in a jurisdiction that cares to do so.

If a person puts up a real child pornography picture someplace, the speed with which they would have the axe fall is astounding. CP is not joke in most jurisdictions and in some cases, it carries a 15-year first-offense price tag.

But you are right with respect to obscenity. Very vague -- lots of loopholes and exceptions. There are no exceptions to child pornography.

 

[JAMESBJOHNSON]

When I was a kid the COPPERTONE billboards were everywhere; no one was offended by the naked kid. But you dont see the billboards anymore.

The film ROMEO & JULIET violates the law. You get a nice shot of Olivia Hussey's ass, and she was 14 I think.