535 U.S. 234 (2002)
An association of businesses, all of which were involved in the production and distribution of “adult-oriented materials,” and others, sought declaratory and injunctive relief by a "pre-enforcement challenge" to select provisions of the Child Pornography Prevention Act of 1996 ("CPPA"). The United States District Court for the Northern District of California granted the government's motion for summary judgment. The plaintiffs appealed. The Court of Appeals for the Ninth Circuit reversed the district court's ruling. Certiorari was granted.
-The business trade association challenged three provisions of the Child Pornography Prevention Act of 1996 ("CPPA").
-§2256(8)(B) of that act prohibited any "visual depiction," regardless of how it is produced, that "is, or appears to be, of a minor engaging in sexually explicit conduct."
-The section covered and was intended to cover computer-generated images produced without any live actors.
-A different section, §2256(2), prohibited movies made with adult actors rather than minors, if the jury believed that an actor "appears to be" a minor engaging in "actual or simulated . . . sexual intercourse."
-Lastly, a third section, §2256(8)(D), a "pandering" provision, prohibited as child pornography any sexually explicit image that was "advertised, promoted, presented, described or distributed" in such a manner that "conveys the impression" that the image depicts a minor engaging in "sexually explicit conduct."
-All of the sections were designed to include works that would not be "obscene" under the standard definition, which was originally announced by the Supreme Court in Miller v. California, 413 U.S. 15 (1973).
-In Miller, the Court held that the governing three-part test for assessing whether material is "obscene" and thus unprotected by the First Amendment is:
(1) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value).
Issue: Can the government ban non-obscene "virtual child pornography," by forbidding either computer-generated images that appear to be of children having sex, or explicit images of young-looking adults posing as minors?
Holding: No. The Court, in an opinion by Justice Kennedy, found that all three of the sections of the CPPA were unconstitutionally overly broad.
-The CPPA "prohibits speech that records no crime and creates no victims by its production." Because the Act contained no exception for works of serious literary, artistic, political or scientific value, it would apply to "a picture in a psychology manual," "a movie depicting the horrors of sexual abuse," and perhaps even such Hollywood blockbusters as Traffic and American Beauty, since these films each contained scenes in which teenage characters appeared to be having sex.
-The rulings to overturn the ban on youthful-appearing adult actors and the "pandering" provision were both 7-2; The vote as to computer-generated images was 6-3. The variation in votes leads me to believe that the provision of the CPPA dealing with computer-generated images depicting minors engaging in "sexually explicit conduct" was only slightly less favored by the Court than the provisions banning actual adult performances. This mild disparity in votes is concerning because of the major interests Congress would be representing in attempting to prevent virtual child pornography.
-Moreover, I am hard pressed to find a situation where one of these computer-generated images of children engaging in sexually explicit conduct would have some "serious literary, artistic, political or scientific value." This is especially so given the facts of this case because the businesses from the association requesting the pre-judgment ruling were all in the business of producing and distributing “adult-oriented materials.”
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