Opinions & Commentaries

At issue in this case is the constitutionality of a New York criminal statute which prohibits persons from knowingly promoting sexual performances by children under the age of 16 by distributing material which depicts such performances.

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In 1996, Congress passed the Child Pornography Prevention Act of 1996 (CPPA) to deal with computer technology used to produce images looking like real children. The law included in its definition of child pornography sexually explicit material that (1) depicts persons who "appear to be minors;" and (2) is advertised as conveying the impression that the person depicted is a minor. On January 27, 1997, the Free Speech Coalition, an adult trade association, and others filed a federal lawsuit challenging the constitutionality of the CPPA. The complaint alleged that the "appears to be a minor" and "conveys the impression" clauses of the CPPA violate the First Amendment and are unconstitutionally vague. Later that year, a federal district court issued an order upholding the constitutionality of the CPPA and granting summary judgment to the government. The district judge ruled that the CPPA is a content-neutral law aimed at the harmful secondary effects associated with virtual child pornography. In December 1999, a three-judge panel of the 9th Circuit ruled 2-1 in favor of Free Speech Coalition. The panel majority determined that the two challenged provisions violate the First Amendment, writing: "censorship through the enactment of criminal laws intended to control an evil idea cannot satisfy the constitutional requirements of the First Amendment."

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Section 2252A(a)(3)(B) of Title 18, United States Code, criminalizes, in certain specified circumstances, the pandering or solicitation of child pornography. This case presents the question whether that statute is overbroad under the First Amendment or impermissibly vague under the Due Process Clause of the Fifth Amendment.

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