On April 16, 2002, the U.S. Supreme Court handed down a much-anticipated decision in Ashcroft v. Free Speech Coalition, the contentious "virtual" child pornography case. The 6-3 opinion, striking down portions of the Child Pornography Prevention Act (CPPA), has free speech advocates cheering, including those challenging the federal campaign finance legislation on First Amendment grounds.
In an opinion written by Justice Anthony Kennedy, the Court ruled the language in CPPA was "overbroad and unconstitutional." Congress passed the law in 1996 in an attempt to ban computer-generated child pornography and material that uses adult actors who resemble minors. The law banned any depictions that "appear to be" of a minor engaged in sexual conduct or convey that impression. It proscribed strict prison sentences for those found in violation of the law. Congress argued the prohibitions are necessary because virtual porn can be used to "whet the appetites" of potential pedophiles, even though such images are produced without using real children.
Trumpeting the First Amendment, Justice Kennedy wrote that "the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."
Kennedy also listed specific examples that would be prohibited under the breadth of this law were it to stand, including such classics as Shakespeares "Romeo and Juliet" and such popular movies as "American Beauty" and "Traffic."
While visceral reactions to this decision are understandable, based on the sensitivity of the subject matter, it is important not to lose sight of the First Amendment implications in this case. "The Constitution gives significant protection from overbroad laws that chill speech within the First Amendments vast and privileged sphere," Justice Kennedy wrote. "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. The Constitution requires the reverse."
To read the decision in Ashcroft v. Free Speech Coalition click here.
In other Supreme Court news, the Court has agreed to review a trademark dispute that has become tangled under the sheets, so to speak, between leading lingerie company Victorias Secret and the entrepreneurial owner of a small town Kentucky boutique selling adult sex toys.
In Moseley v. V Secret Catalogue, Inc., Victorias Secret has sued Victor Moseley, the owner of Victors Little Secret, for dilution of its trademark name. The company is arguing that Moseleys use of such a similar name could be confusing to Victorias Secret customers in Kentucky. The Supreme Court has agreed to hear arguments in this case focusing on whether Victorias Secret is able to claim trademark infringement without demonstrating any economic injury.
Meanwhile, the Court declined to hear a handful of cases with First Amendment implications:
The Justices let stand a lower court ruling that the jailing of Houston, Texas writer Vanessa Leggett, who spent 168 days in jail for refusing to turn over tape recordings of her interviews in a murder case, did not violate her constitutional rights under the First or Fifth amendments. (To read more click here).
In Missouri, free speech was given a free ride on state license plates as the Court declined to review a case involving vanity plates. In Fischer v. Lewis, Mary Lewis sued the state of Missouri on free speech grounds after her vanity license plate with the phrase "ARYAN-1" was revoked. The state argued it was regulating tags that were "inflammatory or contrary to public policy," but two lower federal courts sided with Lewis.
other action, the Court rejected a challenge to the nation's first
vote-by-mail system. The Voting Integrity Project had challenged
Oregons vote-by-mail system on the grounds it violates the
Constitutions call for a single voting day for presidential
and congressional elections. The federal district court dismissed
the case and the Ninth Circuit Court of Appeals affirmed, ruling
that the vote-by-mail system does not violate any federal laws or
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