has a stronger interest in regulating sexual material involving minors
that it does when the material depicts consenting adults.
Children used in producing these materials are generally victims--and
it is often difficult to identify who produced the materials, given the
clandestine distribution network. The Supreme Court concluded in Osborne v Ohio (1990) that the
mere possession of child pornography could be criminally punished as a
means of reducing demand for the harmful materials.
Speech Coalition, the Court considered a challenge to the Child
Prevention Act of 1996 which made it illegal, under certain
to distribute or possess sexually explicit computer- generated images
children, or of persons over eighteen who looked under
The Court, noting the law in question did not serve the goal of
direct sexual exploitation of children, found it to be
overbroad. Writing for the Court, Justice Kennedy suggested that
the law might have been enforced against such movies as Oscar-winning American
Beauty or Romeo and Juliet.
In 2008, in United States v Williams, the Court
considered Congress's latest effort to attack the problem of child
pornography on the Web. The PROTECT Act of 2003 made it a crime
to knowingly advertise or promote visual depictions of minors engaging
in sexually explicit activity. Writing for the Court, Justice
Scalia found the law to be a constitutionally permissible effort to
criminalize the proposing of an illegal transaction. Scalia
reasoned that because child pornography is not protected speech, speech
that proposes to sell or provide such material is no more protected by
the First Amendment than would be speech that proposed to sell or
provide illegal drugs. Justices Souter and Ginsburg dissenting,
finding the law substantially overbroad.
New York v. Ferber (1982)
Ashcroft v Free Speech Coalition(2002)
United States v Williams (2008)
Scene from the movie American Beauty.
2. Should it be constitutional to punish someone who computer-grafts an image of a real child's face to a sexually explict, computer-generated body--or to the sexually-explicit image of the body of an eighteen-year-old?