John D. Ashcroft

Ashcroft (courtesy Washington Post)

Ah, the never ending tug of war between personal freedoms. Ashcroft vs the Free Speech Coalition concerns child pornography and the battle between free speech and the protection of minors. Of particular note is a brief political discussion where I argue that personal safety can be construed from the constitution just as much as a right to privacy. Enjoy!



No. 00-795


535 U.S. 234; 122 S. Ct. 1389; 152 L. Ed. 2d 403; 2002 U.S. LEXIS 2789; 70 U.S.L.W.

4237; 30 Media L. Rep. 1673; 2002 Cal. Daily Op. Service 3211; 2002 Daily Journal DAR 4033; 15 Fla. L. Weekly Fed. S 187

October 30, 2001, Argued

April 16, 2002, Decided


The 1996 CPPA sparked controversy over provision 18 USCS 2256(8) surrounding the language of code sections which were overly broad:

“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,” 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.” (Ashcroft v. Free Speech Coalition, U.S Supreme Court Case Summary & Oral Argument,, (last visited February 12, 2010))

The Free Speech Coalition and several individuals and groups affiliated with the adult entertainment industry filed suit claiming 18 USCS 2256(8) contained language that was overly broad. District court held that the language was not overly broad; however, the Court of Appeals held that is was overly broad and invalid. The case was brought before the supreme court in 2001.


Under 18 USCS 2256(8) many works that did not in fact contain children, but depicted images or scenes which were in fact of adults pretending to be under the age of 18 or works which were entirely rendered using computer generated imagery and not any real individual under the age of 18 could cause the owner or distributor to be in violation of possession of child pornography. Furthermore, merely causing individuals to believe that there may be images of individuals under the age of 18 engaged in sexual activity was a violation of the 1996 CPPA.

The Free Speech Coalition argued that provisions (B) and (D) of 18 USCS 2256(8) were overly broad while the government argued that it had a viable interest in protecting minors from victimization. Part of the government rationale for the provisions against virtual child pornography were that it could be used to entice children to become actual victims of child molestation or child pornography.

Decisions and Reasoning

18 USCS 2256(8)(B) was held to be overly broad on the basis that 18 USCS 2256 was designed for the purpose of protecting actual children. Since images which do not use actual children do not directly take advantage of children and do not pose a plausible risk to other children, it would be unconstitutional to limit works which may contain images of persons posing as individuals under the age of 18 when the work as a whole may have significant social or artistic value.

18 USCS 2256(8)(D) was also deemed to be overly broad on the basis that 18 USCS 2256(8)(D) focused on the presentation of the speech and not on the actual substance of the speech.

Separate Opinions

Justice Thomas concurred with the majority opinion; however, held that should technology progress to a point where a virtual image becomes indistinguishable from an actual image of child pornography then 18 USCS 2256(8)(B) should be upheld because of the difficulty which would result from attempting to apprehend child pornographers.

Justice O’Connor concurred that 18 USCS 2256(8)(D) be struck down; although, she felt that 18 USCS 2256(8)(B) should only be struck down in relation to pornography which presents adults who appear to be under the age of 18 and should be upheld for virtual images portraying child pornography.

Chief Justice Rehnquist and Justice Scalia dissented and argued for the rewording of 18 USCS 2256(8)(B) such that it would fit the fourth amendment. Specifically, they argued the language be changed from “appears to be” to “indistinguishable from.” Today USCS 2256(8)(B) has in fact changed it’s language to reflect the opinions of Chief Justice Rehnquist and Justice Scalia.


The case of Ashcroft v. Free Speech Coalition is an excellent example of the dichotomy present within the American legal fabric; on the one hand individuals have been bestowed the freedom of speech, while on the other hand children have the freedom not to be victimized. It falls to the courts and legislature to balance the interests of opposing individual freedoms. In this case the court was right in striking down provision (D); however, provision (B) as recognized by Rehnquist, Scalia, and Thomas has significant use when worded properly in allowing law enforcement to prohibit actual child pornography. I believe their opinions are proved correct in that 18 USCS 2256 is now worded as such:

For the purposes of this chapter, the term—

(1) “minor” means any person under the age of eighteen years;


(A) Except as provided in subparagraph (B), “sexually explicit conduct” means actual or simulated—

(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the genitals or pubic area of any person;

(B) For purposes of subsection 8(B) [1] of this section, “sexually explicit conduct” means—

(i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited;

(ii) graphic or lascivious simulated;

(I) bestiality;

(II) masturbation; or

(III) sadistic or masochistic abuse; or

(iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any person;

(3) “producing” means producing, directing, manufacturing, issuing, publishing, or advertising;

(4) “organization” means a person other than an individual;

(5) “visual depiction” includes undeveloped film and videotape, data stored on computer disk or by electronic means which is capable of conversion into a visual image, and data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format;

(6) “computer” has the meaning given that term in section 1030 of this title;

(7) “custody or control” includes temporary supervision over or responsibility for a minor whether legally or illegally obtained;

(8) “child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or

(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

(9) “identifiable minor”—

(A) means a person—


(I) who was a minor at the time the visual depiction was created, adapted, or modified; or

(II) whose image as a minor was used in creating, adapting, or modifying the visual depiction; and

(ii) who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and

(B) shall not be construed to require proof of the actual identity of the identifiable minor.

(10) “graphic”, when used with respect to a depiction of sexually explicit conduct, means that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted; and

(11) the term “indistinguishable” used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults. (US CODE: Title 18,2256. Definitions for chapter,,—-000-.html#FN-1 (last accessed February 12, 2010))

Of particular note are the addition of provision (11) which defines the term “indistinguishable” which itself is used in provision (8)(B). In effect the code has been altered in such a way as to compromise between the rights of adults to freely express ideas and the rights of children to be safe from victimization.

While some may argue that there is no fundamental right to be safe from victimization, it should be noted that there is no express right to privacy either. However, we are able to construe that the original framers of the constitution and bill of rights intended for citizens to have a certain degree of privacy. In like manner, the framers had obvious designs in the establishment of government to provide safety; safety is a key element of happiness for any reasonable and normal individual. The rights to life, liberty, and the pursuit of happiness make a prominent showing in the declaration of independence.

This case further illustrates the necessity for the law to be malleable over time; a society whose laws are difficult to add to or strike down is inherently less adaptable to new criminal methods and technologies, thereby creating environments less conducive to life, liberty, and the pursuit of happiness. Invariably the whole of society begins to suffer when the legal system is unable to keep up with new criminal methods.


Cornell University. (2010, February 12). Us code: title 18,2256. definitions for chapter. Retrieved from–000-.html#FN-1

Oyez. (2010, February 12). Ashcroft v. free speech coalition, u.s. supreme court case summary & oral argument. Retrieved from

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Schmalleger, F. (2009). Criminology today:an integrative introduction. Columbus, Ohio: Pearson.

Worrall, J.L. (2007). Criminal procedure: from first contact to appeal. Boston, MA: Pearson.