Child Pornography Prevention Act of 1996 (CPPA), Pub. L. No. 104-208 (1996), codified at 18 U.S.C. §2252A, as amended.
The CPPA was enacted in part to address the challenges resulting from the technological advances in the computer-aided creation and production of visual images. In particular, the CPPA incorporated into the definition of child pornography "any visual depiction" that "appears to be of a minor engaging in sexually explicit conduct." Increasingly, graphics software packages and computer animation have the capability to create "virtual" images indistinguishable from photographic depictions of actual human beings — including fictitious children engaged in apparently sexual activity.
On April 16, 2002, in Ashcroft v. Free Speech Coalition, the U.S. Supreme Court held this part of the CPPA unconstitutional. The Court explained that "by prohibiting child pornography that does not depict an actual child, the statute goes beyond Ferber, which distinguished child pornography from other sexually explicit speech because of the State's interest in protecting the children exploited by the production process." The Court added that "the sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people." Thus, Congress "may pass valid laws to protect children from abuse, and it has." But "the prospect of crime . . . by itself does not justify laws suppressing protected speech."
The Court emphasized that "where the images are themselves the product of child sexual abuse, Ferber recognized that the State had an interest in stamping it out" because the "production of the work, not its content, was the target of the statute."
|“||In contrast to the speech in Ferber, [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. 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 Court reaffirmed that "the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it."
The federal government also defended the CPPA on the ground that the existence of virtual child pornography will make it more difficult "to prosecute those who produce pornography by using real children" and that the "necessary solution" is to prohibit virtual as well as real child pornography. The Court rejected this argument, noting that "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."
Finally, the Court made clear that the CPPA does not deal with obscenity. As the Court explained, under Miller v. California, to establish that a work is obscene, "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." The Court noted that the CPPA contained none of the Miller requirements. In the Court's view, this was fatal, for although "the freedom of speech has its limits," the CPPA reached beyond the limits of permissible regulation.