Supreme Court Strikes Down Another Attempt by Congress to Restrict Free Speech

April 16, 2002 12:00 am

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NEW YORK–The U.S. Supreme Court today struck down Congress’s attempt to expand the definition of child pornography, saying that the law “prohibits speech despite its serious literary, artistic, political or scientific value,” a ruling the American Civil Liberties Union today hailed as a forceful defense of First Amendment principles.

The 6-3 majority opinion, authored by Justice Anthony Kennedy, “sends a message that Congress may not overstep the boundaries the Court laid out in distinguishing constitutionally protected speech from obscenity and child pornography that harms actual children,” said Ann Beeson, a staff attorney with the ACLU, which filed a friend-of-the-court brief in the case together with its Northern California office.

The Child Pornography Protection Act barred sexually explicit material that depicts what “appear(s) to be a minor”‘ or that is advertised in a way that “conveys the impression” that a minor was involved in its creation. Such depictions, the Court today recognized, could include scenes from Academy Award-winning films like Traffic and American Beauty.

The criminal law could also be applied to “a picture in a psychology manual, as well as a movie depicting the horrors of sexual abuse,” the Court wrote, the kind of material used by the ACLU’s clients, which include Institute for the Advanced Study of Human Sexuality, the Society for Professional Journalists and the Radio and Television News Directors Association.

In some of its strongest, most inspired language, the Court rebuked the government’s attempt to act as the “thought police,” saying “The right to think is the beginning of freedom, and speech must be protected from the government because speech the beginning of thought.”

The law banned “the visual depiction of an idea,” the Court wrote, “– that of teenagers engaging in sexual activity — that is a fact of modern society and has been a theme in art and literature throughout the ages.”

“The Court said that instead of punishing the abuse of children — which no one objects to — this law impermissibly punishes the expression of ideas,” said Ann Brick, a staff attorney with the ACLU of Northern California.

Indeed, as the Court today noted, none of the groups opposing the law challenged a provision that banned the use of identifiable children in computer-altered sexual images. In addition, child pornography that involves real children has been illegal for many years and that law was not affected by today’s ruling.

Today’s case is Ashcroft v. Free Speech Coalition, No. 00-795. The ACLU’s legal brief in the case is online at /Files/Files.cfm?ID=9092&c=184.

The ACLU’s clients were represented by Beeson, Brick, ACLU National Legal Director Steven R. Shapiro and William Bennett Turner of the San Francisco-based law firm Rogers Joseph O’Donnell & Phillips.

Another case involving government restrictions of speech, which the court has not yet decided, tests the constitutionality of a separate law governing access by adults and children to sexually explicit material on the Internet. The ACLU challenged the law on behalf of writers of sexual advice columns;; OB/;; and websites for bookstores, art galleries, and the Philadelphia Gay News. A decision in that case, ACLU v. Ashcroft, No. 00-1293, is expected by the end of June.

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