annoy.com: Brief of ACLU et.al./Ashcroft v. Free Speech Coalition

No. 00-795

IN THE UNITED STATES SUPREME COURT

JOHN D. ASHCROFT, et al.,

Petitioners

THE FREE SPEECH COALITION, et al.,

Respondents

On Writ of Certiorari to the

United States Court of Appeals

For the Ninth Circuit

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION, INSTITUTE FOR THE

ADVANCED STUDY OF HUMAN SEXUALITY, NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE LAWYERS, REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS, FEMINISTS FOR FREE EXPRESSION,

SOCIETY OF PROFESSIONAL JOURNALISTS, AND RADIO-

TELEVISION NEWS DIRECTORS ASSOCIATION, AS

AMICI CURIAE, IN SUPPORT OF RESPONDENTS

Ann Brick

American Civil Liberties Union

Foundation of Northern California

1663 Mission Street, Suite 460

San Francisco, CA 94103

Telephone: (415) 621-2493

Ann E. Beeson

Steven R. Shapiro

American Civil Liberties Union

125 Broad Street, 17th Floor

New York, NY 10004

Telephone: (212) 549-2500

William Bennett Turner *

Rogers Joseph O�Donnell & Phillips

311 California St., 10^th Floor

San Francisco, CA 94104

Telephone: (415) 956-2828

* Counsel of Record

TABLE OF CONTENTS

Page No.

INTERESTS OF THE AMICI................................................................................................................. 1

STATEMENT OF THE CASE............................................................................................................... 3

SUMMARY OF ARGUMENT . .......................................................................................................... 3

ARGUMENT....................................................................................................................................... 5

Introduction......................................................................................................................................... 5

I. THE CPPA EXCEEDS THE CONSTITUTIONALLY PERMISSIBLE SCOPE OF REGULATION OF NONOBSCENE SEXUALLY EXPLICIT SPEECH........................................................................ 6

A. This Court Has Recognized That Even Child Pornography

Laws Are Limited by the First Amendment.................................................................... 6

B. Despite this Court�s Caution in Ferber, Child Pornography

Laws Have Been Applied in an Overbroad Manner That

Threatens Legitimate Speech and Research.................................................................. 9

C. The CPPA Closes off the Only Avenue Left Open by Ferber

for Legitimate Creators and Users of Prohibited Material -

Material That Does Not Involve Real Children................................................................ 12

II. EASING THE GOVERNMENT�S CONSTITUTIONALLY-REQUIRED BURDEN OF PROOF FOR IMPOSING CRIMINAL PENALTIES ON SPEECH IS NOT A COMPELLING INTEREST THAT JUSTIFIES THE CPPA 14

III. THE GOVERNMENT CANNOT OUTLAW SPEECH BASED ON THE ASSUMPTION THAT IT MAY CAUSE SOME VIEWERS TO ACT ILLEGALLY................................................................................... 17

A. The Evidence Does Not Support a Connection Between

Virtual Child Pornography and Actual Harm to Minors................................................... 17

B. The CPPA Violates this Court's Well Established Limits for

Punishing Speech on the Theory That it May Encourage

Others to Engage in Unlawful Behavior........................................................................ 22

CONCLUSION................................................................................................................................... 27

INTERESTS OF THE AMICI

Amici are non-profit organizations who fully support efforts by government to prevent sexual abuse or exploitation of children but remain concerned about the rights of publishers, artists, authors, journalists, scholars and citizens to create, distribute, use and possess every kind of expression permitted by the First Amendment. ^{^[1]}^/

The American Civil Liberties Union (ACLU) is a nationwide, nonprofit, nonpartisan organization with nearly 300,000 members dedicated to the principles of liberty and equality embodied in the U.S. Constitution. Since its founding in 1920, the ACLU has litigated numerous cases involving issues of freedom of expression and sexually explicit speech including, recently, Reno v. ACLU, 521 U.S. 844 (1997) (challenge to Communications Decency Act), and Denver Area Educational Telecommunications Consortium v. Federal Communications Commission, 518 U.S. 727 (1996) (challenge to indecency provisions of Cable Television Consumer Protection and Competition Act of 1992). The ACLU of Northern California is a regional affiliate of the national ACLU.

The Institute for the Advanced Study of Human Sexuality is a private graduate school established in 1976 and based in San Francisco, California. The Institute provides a graduate course of study for persons preparing for careers in human sexuality or already working in the field. The Institute maintains archives, resource centers and research facilities dealing with primary sexological and erotological material not available elsewhere.

The National Association of Criminal Defense Lawyers (NACDL) is a non-profit corporation founded in 1958 to ensure justice and due process for persons accused of crime, and to promote the proper and fair administration of criminal justice. It has a membership of more than 9,000 attorneys and 28,000 affiliate members in 50 states.

Feminists for Free Expression (FFE) is a national not-for-profit organization of diverse feminist women and men who share a commitment both to gender equality and to preserving the individual�s right and responsibility to read, view, and produce expressive materials free from government intervention. Since 1992 it has worked actively to oppose the misapprehension that censorship may sometimes be in the interest of women and others who feel unequally treated by society, believing that the goal of equality is inextricably linked with the values enshrined in our Constitution�s free speech clause.

The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association of news editors and reporters dedicated to defending the First Amendment and freedom of information interests of the print and broadcast media since 1970.

The Society of Professional Journalists (SPJ) is a voluntary non-profit journalism organization representing every branch and rank of print and broadcast journalism. SPJ is the largest membership organization for journalists in the world, and for more than 90 years, SPJ has been dedicated to encouraging a climate in which journalism can be practiced freely, fully, and in the public interest.

The Radio-Television News Directors Association is a professional organization comprised of local and network news executives, educators, students and others in the radio, television and cable news business and is devoted to electronic journalism.

All amici are concerned about the dangers to free speech and inquiry posed by the Child Pornography Prevention Act of 1996 (CPPA).

STATEMENT OF THE CASE

The Free Speech Coalition and others (respondents) filed this facial challenge to the constitutionality of the CPPA, which amended the federal child pornography law to criminalize not just images of real children engaged in sexual conduct, but any image that "appears to be" or that "conveys the impression" of minors engaged in sexual conduct. 18 U.S.C. �� 2252, 2256. The district court found, inter alia, that the CPPA was content-neutral and was not unconstitutionally vague or overbroad. Pet.App. 50a-65a. The Ninth Circuit Court of Appeals reversed, holding that the CPPA was vague and overbroad in violation of the First Amendment. Pet.App. 1a-43a. After the court below denied a petition for rehearing, this Court granted the government�s petition for a writ of certiorari on January 22, 2001.

SUMMARY OF ARGUMENT

The CPPA creates a new category of criminally prohibited speech: nonobscene �child pornography� that neither depicts real children nor uses children in its production. The plain language of the �appears to be� and �conveys the impression� provisions of the CPPA criminalizes a wide variety of images, including those of young-looking adults as well as minors in paintings, drawings and sculpture, and those created and used for serious literary, artistic, political or scientific purposes.

Amici agree with the court below that the �appears to be� and �conveys the impression� provisions are facially unconstitutional and are far too subjective and vague for use in a criminal statute restricting speech. Amici confine this brief to three points:

Despite this Court�s caution in New York v. Ferber, 458 U.S. 747 (1982), child pornography laws have been used to justify suppression and prosecution of legitimate speech and research ranging from parental photographs of nude children in the bathtub to journalistic investigation of the role of law enforcement in online child pornography prosecutions and medical treatment of pedophilia. By cutting off the only avenue of protected speech left open for legitimate speech and research � images that do not involve real children � the CPPA expands the overbreadth of the child pornography prohibition to the point of unconstitutionality.

The government argues in this Court that the CPPA provisions are justified because advances in technology have made it difficult for the government to meet its burden to prove that a defendant possessed or distributed images of actual minors � that is, to prove that the speech is unprotected � before obtaining a conviction. The government argues that the CPPA will make it easier to obtain convictions for child pornography, and that an affirmative defense is available to some defendants who can prove that the images were produced using adults. But the defense is unavailable to a wide range of defendants, including all those charged with possession rather than distribution, creators who use neither real adults nor real children, and distributors who have no way to prove that an adult was used to produce the images. Thus, rather than justifying the law, the reversal of the burden of proof inherent in the CPPA exacerbates its constitutional defects.

The government contends that virtual pornography � images that neither depict real minors nor use real minors in its production � has no First Amendment protection because the images can lead to actual child molestation. Its contention is based on Congressional �findings� that such images may �whet the appetite� of potential molesters and be used to seduce actual minors. The government submitted no evidence in this case, and the Congressional findings are not based on reliable evidence. In addition, while government may of course proscribe actual child exploitation, the First Amendment does not allow the suppression of speech based on the assumption that it may cause some viewers to engage in illegal acts unless the speech is directed to inciting imminent unlawful action and is likely to produce such action. Brandenburg v. Ohio, 395 U.S. 444 (1969).

ARGUMENT

Introduction

In 1984, Congress acted to �expand the child pornography statute to its full constitutional limits.� United States v. X-Citement Video, Inc., 513 U.S. 64, 74 (1994). In 1996, Congress exceeded those limits. It created an entire new category of criminally prohibited speech: nonobscene "child pornography" that neither depicts real children nor uses children in its production. As the court of appeals observed, "Images that are, or can be, entirely the product of the mind are criminalized." Pet.App. 16a.

The CPPA criminalizes materials that, by definition, may not appeal to the prurient interest, may not be patently offensive and may well have serious literary, artistic, political or scientific value. Cf. Miller v. California, 413 U.S. 15, 24 (1973) (defining obscenity). �Child pornography� has heretofore been confined to materials depicting actual minors performing sexual acts. See New York v. Ferber, 458 U.S. 747 (1982).

Prohibitions of both obscenity and child pornography are �unabashedly content-based laws.� See New York v. Ferber, supra, 458 U.S. at 756. They �run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy.� Id. The proper analysis therefore starts with the presumption that the CPPA�s content-based restrictions on speech are �beyond the power of the government.� Simon & Schuster v. New York State Crime Victims Board, 502 U.S. 105, 115-16 (1991); see United States v. Playboy Entertainment Group, Inc., 120 S.Ct. 1878, 1888 (2000), quoting R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992) (�Content-based regulations are presumptively invalid�). As will be seen, the government�s showing in this case does not overcome that presumption.

I. THE CPPA EXCEEDS THE CONSTITUTIONALLY PERMISSIBLE SCOPE OF REGULATION OF NONOBSCENE SEXUALLY EXPLICIT SPEECH

A. This Court Has Recognized That Even Child Pornography Laws Are Limited by the First Amendment

In New York v. Ferber, the Court upheld a state child pornography law that criminalized images of actual minors engaged in sexual conduct that were not obscene. The Court recognized that child pornography laws are nonetheless limited by the First Amendment in two ways. First, the Court noted that applications of child pornography laws to material or research with serious value might violate the First Amendment. 458 U.S. at 773-74. It held that these overbroad applications "should be cured through case-by-case analysis of the fact situations to which [the statute�s] sections ... may not be applied." Id. at 774. Four concurring justices expanded on the overbreadth issue. Justice O�Connor noted that "clinical pictures of adolescent sexuality" and "pictures of children engaged in rites widely approved by their cultures" might not "trigger the compelling interests identified by the Court." Id. at 775. Similarly, Justices Brennan and Marshall opined that the use of materials otherwise within the ambit of the statute may be protected by the First Amendment if they form part of a work having serious literary, artistic, scientific, or medical value. Id. at 776-77. Justice Stevens explicitly noted that the First Amendment would also protect images that fit squarely within the prohibition if used for legitimate purposes:

A holding that respondent may be punished for selling these two films does not require us to conclude that other users of these very films, or that other motion pictures containing similar scenes, are beyond the pale of constitutional protection. Thus, the exhibition of these films before a legislative committee studying a proposed amendment to a state law, or before a group of research scientists studying human behavior, could not, in my opinion, be made a crime. Moreover, it is at least conceivable that a serious work of art, a documentary on behavioral problems, or a medical or psychiatric teaching device, might include a scene from one of these films and, when viewed as a whole in a proper setting, be entitled to constitutional protection.

Id. at 778. Other courts have suggested similar limitations on the reach of child pornography laws. ^{^[1]}^/ See United States v. Lamb, 945 F.Supp. 441, 449- 50 (N.D.N.Y. 1996) (recognizing need for a "legitimate use" defense for researchers, psychiatrists, etc.); United States v. Fox, 248 F.3d 394 (5th Cir. 2001) (same for artists); U.S. v. Upham, 168 F.3d 532, 534 (1st Cir.), cert. denied, 119 S. Ct. 2353 (1999) (noting submission to jury of whether defendant's purpose in possessing child pornography was to produce a serious literary work). In addition, some state child pornography statutes contain explicit exceptions for work with serious value. See, e.g., Osborne v. Ohio, 495 U.S. 103, 106 (1990) (Ohio statute contains exception for material used for "bona fide artistic, medical, scientific, educational ... or other proper purpose"); Massachusetts v. Oakes, 491 U.S. 576, 579 (1989) (state statute contains exception for material "produced ... for a bona fide scientific or medical purpose, or for an educational or cultural purpose for a bona fide school, museum or library."); Conn. Gen. Stat. �53(a) (2001) (exception to state child pornography statute for images possessed for "bona fide artistic, medical, scientific, educational, religious, governmental or judicial purpose."); Cal. Penal Code �311.2(e) (2001) (same); Ga. Code Ann. �16-12-100(d) (2001) (same); N.Y. Penal Code �235.15(2) (McKinney 2000) (same).

Second, the Ferber Court specifically offered constitutionally protected alternatives to the speech prohibited by the statute. For example, the Court suggested the use of young-looking adults or other simulations as a constitutionally protected substitute for the use of actual minors and, in part, justified its own holding by pointing to the availability of such a constitutionally protected alternative. 458 U.S. at 763. The Court thus noted that �a person over the statutory age who perhaps looked younger could be utilized,� and that �simulation� could �provide another alternative.� 458 U.S. at 763. Rejecting the idea that simulation might be unlawful, the Court held that material that does �not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection.� 458 U.S. at 765 (emphasis added); see also People v. Ferber, 409 N.Y. Supp. 2d 632, 637 (1978) (noting that state itself had offered these protected alternatives). In X-Citement Video, supra, the Court reiterated that nonobscene sexually explicit materials involving adults �are protected by the First Amendment.� 513 U.S. at 72.

Before considering the constitutionality of the CPPA�s expansion of the federal child pornography law, amici wish to make the Court aware of the very real impact of child pornography laws on legitimate speech and research even before enactment of the CPPA. The Ferber Court�s acknowledgement of the constitutional limitations of imposing criminal liability for nonobscene child pornography has not stopped the threat to protected speech. Child pornography has in essence become a strict liability crime for many, including legitimate academics, artists, journalists and sex researchers, who can no longer safely create or possess images even in circumstances that do not implicate the government interests identified in Ferber. Prosecutors have unbridled discretion in deciding whom to target. Grandparents and parents have been prosecuted for taking nude photos of their children and grandchildren; some either take years to mount a successful First Amendment defense, or opt to enter pleas to avoid protracted litigation. ^{^[1]}^/ Artists, museum directors, advertisers, and mainstream booksellers have had their works seized and been threatened with prosecution. ^{^[1]}^/ An award-winning journalist has been imprisoned after a court refused to let him present evidence that he was in fact investigating and reporting on the problem of child pornography on the Internet. U.S. v. Matthews, 209 F.3d 338 (4th Cir. 2000) (denying journalist�s First Amendment defense that illegal images were possessed as part of news investigation), cert. denied, 121 S.Ct. 260 (2000).

Sex researchers have had to limit their research of child pornography and even to abandon proven clinical techniques for assessing the treatment of sex offenders. ^{^[1]}^/ The climate for legitimate research has become so fearful that scholars and researchers did not want their articles cited in this brief for fear of scrutiny, and some professional sex research associations declined to join this amicus brief out of fear that their participation could subject their members to scrutiny and potential criminal liability for their research. Sociology professors have also been threatened with prosecution for studying the role of pornography in modern society. Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000), cert. denied, 121 S.Ct. 759 (2001); Robert O'Harrow, Jr., "Professors Sue Over Va Law Governing Explicit Material On Internet," The Washington Post May 9, 1997 (discussing censorship of professor's web site). Even criminal defense attorneys do not have an exception to possess images to assist them in the defense of their client.

On the other side of the coin, certain persons who possess and receive child pornography involving real children appear to enjoy immunity from prosecution. For example, companies that market Internet blocking programs employ hundreds of staff members who download illegal child pornography to add to the programs' lists of sites to block. Jon Bigness, "Sifting Problems of Web Filters," Chicago Tribune, February 16, 1998; Jeffrey Savitskie, "In Macomb County: Library to Block Net Porn From Kids," The Detroit News, August 13, 1997. In addition, the brief of the National Center for Missing & Exploited Children in this case discusses its possession and review of illegal images. See Amicus Curiae Brief of National Center for Missing & Exploited Children, at 8 (�NCMEC analyzes all reported images of child pornography to determine whether a violation of federal child pornography laws may have occurred � �); id. at 18 (�Reports of apparent child pornography are forwarded to NCMEC, where trained analysts triage the images and assign a priority value to the report� before sending to law enforcement).

Against this background, Congress opted to expand the definition of child pornography in the CPPA well beyond constitutional limits.

C. The CPPA Closes off the Only Avenue Left Open by Ferber for Legitimate Creators and Users of Prohibited Material - Material That Does Not Involve Real Children

The only clear safety valve left to creators and users of legitimate speech involving minors and sexual conduct under Ferber was sexually explicit material that used fictitious minors. The CPPA�s criminal penalties unconstitutionally close that safety valve. Despite the government�s attempt to narrow the statute to apply only to computer-generated images that are �virtually indistinguishable� from images of actual minors, the plain language of the statute outlaws sexually explicit depictions of young-looking adults in films, photographs, videos, etc., depictions of children in paintings, drawings, cartoons, video games, anatomically correct dolls, sculpture, etc., ^{^[1]}^/ and computer-generated or photo composite images that do not involve real minors. All of these easily fit within the open-ended "visual depiction" provision of � 2256(8). ^{^[1]}^/ The CPPA, by redefining certain sexually explicit materials as child pornography, is invalid because it directly proscribes constitutionally protected speech.

Even if case-by-case adjudication of overbroad applications might have protected legitimate speech and research before the CPPA, the CPPA�s expansion of liability to nonobscene images of fictitious minors burdens protected speech to the point of facial unconstitutionality. Under Ferber, legitimate speakers and researchers could avoid prosecution by creating or using images that did not involve real children. For example, photographers and filmmakers could use young-looking adults. Sex researchers could study and use similar or fictitious images for research and to treat patients. These very alternatives were expressly contemplated by this Court in Ferber, in part to limit the impact of the law on legitimate speech and research. Because the CPPA eliminates the ability to create or use even fictitious images of minors engaged in sexual conduct, it is unconstitutional.

As a particularly ironic example of the statute�s overbreadth, the CPPA now makes criminal many of the studies that could inform the Court�s analysis of whether the government has proven the harm that it alleges. Sex researchers cannot study the impact of virtual child pornography to determine whether it �whets the appetite� of the viewer. They cannot determine whether there is a connection between viewing certain images and committing sex crimes. Journalists cannot analyze whether the market for virtual child pornography is actually increasing on the Internet. The government has now made a category of speech so illegal that society can no longer have informed debates about the premises of that illegality. Scientists studying the harmful effects of illegal drugs are granted licenses that entitle them to possession for research purposes, 21 U.S.C. � 823(f), while scientists wanting to examine the harmful effects from child pornography � though it is speech � face prosecution for possessing contraband.

II. EASING THE GOVERNMENT�S CONSTITUTIONALLY-REQUIRED BURDEN OF PROOF FOR IMPOSING CRIMINAL PENALTIES ON SPEECH IS NOT A COMPELLING INTEREST THAT JUSTIFIES THE CPPA

To justify the CPPA, the government now argues that, absent the "appears to be" provision, it will be unable to meet its burden of proof in child pornography prosecutions. Pet.Br. 23-24, 37. Before the CPPA, child pornography prosecutions required the government to prove that the defendant possessed or distributed images of an actual minor. The requirement was imposed by this Court in Ferber, whose rationale for allowing a state to ban nonobscene child pornography is the harm to the minors exploited in the material�s production. ^{^[1]}^/ Lower courts following Ferber have continued to emphasize that the victims of child pornography "are the children who participate in the pornography�s production.� United States v. Boos, 127 F.3d 1207, 1213 (9th Cir. 1997); United States v. Wiegand, 812 F.2d 1239, 1245 (9th Cir.), cert. denied, 484 U.S. 856 (1987) (rationale of prohibiting child pornography is to ensure that the child "target" of the "pornographer-photographer" not be "treated as a thing").

The government's new argument is simply an effort to lighten its own burden to prove that speech is unprotected before sending a speaker to jail. It exacerbates the constitutional defects in the statute for several reasons. First, the government has failed to cite a single instance of its inability to win a conviction. Despite its experience in hundreds and hundreds of child pornography prosecutions, it has adduced no evidence that it has actually been prevented from proving its case. In fact, at the Senate hearing on the CPPA, the Deputy Assistant Attorney General testified that in a recent year there were "no acquittals" and "1995 saw the highest conviction rate for child pornography cases � 97.6 percent.� Child Pornography Prevention Act of 1995: Hearing before the Senate Comm. on the Judiciary, 104^th Cong., 2d Sess., 15 (1996)(�Senate Hearing�). ^{^[1]}^/ Congress did not have "substantial evidence" on which to base its "finding" on the burden of proof point. See Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 195 (1997).