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I’m taking a class with the International Webmasters Association, “Legal Issues for Web Designers and Content Managers.” Just into the second week, the following is my homework from week one, a case analysis on ASHCROFT V. FREE SPEECH COALITION.

Ashcroft lost. Enjoy:

Gary Kopycinski
Legal Issues for Web Designers and Content Managers
Case Analysis, Week 1
May 20, 2007

Complete name of the case:
No. 00795

The case was heard before the United States Supreme Court. The decision was rendered April 16, 2002.

Specifically, two provisions of the Child Pornography Prevention Act of 1996 (CPPA) were struck down by the court. The first:

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.

In short, any image that might appear to be a child was subject to is subject to CPPA. The court held that this was overly broad:

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.

In essence, once Government starts drawing lines prohibiting free speech, where does it end? The court decided that the risks were too great.

The court held that the second provision, §2256(8)(D), was 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.

The key phrase in this section, according to the court, is conveys the impression that the material depicts minors in sexually explicit conduct. Here, the court argues that the trailer of a movie might be considered child pornography, even if the film itself contains no sexually explicit scenes involving minors, but the trailer suggests that such scenes might be found in the movie. The court says this goes too far.

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 lawful speech. For this reason, it is overbroad and unconstitutional.

The decision covers a number of other possible scenarios, such as the argument that images of virtual children engaged in sexual activity might encourage people to participate or seek out that type of activity; or that such images might be used to lure children into compromising situations. However, the court says that many other things might be used to accomplish these same ends, and the Government cannot ban everything.

The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.

In short, the court concluded, the prohibitions of §§2256(8)(B) and 2256(8)(D) are overbroad and unconstitutional.

Analysis for Web Designers
While sexual exploitation of children is a horrible and heinous act, the court was not arguing that these activities should be tolerated. The problem, as the court saw, was that free speech would suffer if these prohibitions went unchallenged:

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.

In short, the court argued, “The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”

While no scrupulous web designer would argue in favor of child pornography, the court made a distinction between what is real or what is a virtual creation. Perhaps one of the most telling passages is one prohibition which was not challenged in this case, and which the court also did not challenge, Section 2256(8)(C) prohibits a more common and lower tech means of creating virtual images, known as computer morphing. In short, if a designer were to take an image of a real child and alter it so that the child appeared to be engaged in sexual activity, the fact that a real child is used in the original image removes this from the decision before the court:

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.

Using an image of a real child then does fall under the Child Pornography Prevention Act of 1996. Designers must exercise extreme caution, therefore, when using images of children. While many examples of distorted images of adults may abound online and on television (e.g. The Onion, The Daily Show with Jon Stewart, and numerous blogs and online publications), images of children are strictly off- limits.

Given that sexual exploitation of children is one of if not perhaps the most grievous and atrocious offenses possible in our society, the ruling gives broad permission for the creation of virtual images.