The Christian Right's war on pornography and any sexuality that deviates from their standards creates a lot of collateral damage, including free speech. No one is likely to defend child pornography, but in the effort to stamp out child porn, anti-pornography activists tried to eliminate "virtual" child pornography — images that look like they are of children, but which were created without any children being involved. Those efforts have been challenged in the courts.
Appellants in this case were part of a group called "The Free Speech Coalition." This was a trade association of businesses involved in creating and distributing adult-oriented materials.
They challenged section 2556(8) of the Child Pornography Prevention Act (CPPA), which defined pornography as any visual depiction, including computer images, of sexually explicit conduct. Subsection (B) banned sexually explicit depictions that "appear to be" minors; subsection (D) prohibited depictions that "convey the impression" that they contain sexually explicit portrayals of minors.
The issue, then, was "virtual child pornography" - can the government ban images which do not involve children in any way, but instead merely look like they are of people who are under the age of 18? This can include wholly computer-generated images, drawings, or even adults who look young.
The complaint alleged that the CPPA violated the First Amendment because it was not content-neutral and was unconstitutionally vague and overbroad where it failed to define "appears to be" and "conveys the impression." The Free Speech Coalition also asserted that the statute imposed an impermissible prior restraint on protected speech and created a permanent chill on protected expression.
The Ninth Circuit Court of Appeals largely agreed with the challenge brought by the FSC, finding that: 1) the statue is not content-neutral and aims to curb specific expression; 2) the statute was not in line with Supreme Court decisions which have held that states can only criminalize child pornography when the laws "limit the offense to works that visually depict explicit sexual conduct by children below a specified age" - something the CPPA failed to do; 3) no demonstrated link to harm to real children has been demonstrated; and 4) the language is too vauge and overbroad, allowing for arbitrary and discriminatory enforcement.
The court regarded the dramatic shift in the law to be very relevant:
In the new law, Congress shifted the paradigm from the illegality of child pornography that involved the use of real children in its creation to forbid a "visual depiction" that "is, or appears to be, of a minor engaging in sexually explicit conduct." The premise behind the Child Pornography Prevention Act is the asserted impact of such images on the children who may view them. The law is also based on the notion that child pornography, real as well as virtual, increases the activities of child molesters and pedophiles.
Thus, the justification for banning child pornography has shifted dramatically from protecting the real children involved to protecting future children who may or may not be harmed by those who have viewed the material. According to the court, however, not only is there no evidence of this, but if such a principle were allowed to hold it would have terrible consequence for free speech in general. If the government were permitted to prohibit any speech which they think might contribute to someone harming others, then a great deal of currently protected speech would suddenly come under suspicion.
Courts have already rejected the argument that speech can be regulated based on alleged and possible results. This decision cited the Seventh Circuit Court of Appeals 1985 decision in American Booksellers Association, Inc. v. Hudnut. In this case, the alleged consequences of pornography were used to justify an Indianapolis city ordinance prohibiting pornography that portrayed women "submissively or in a degrading manner."
Even so, the court concluded in the Hudnut decision that pornography's role, if any, in preserving systems of sexual oppression "simply demonstrate[d] the power of pornography as speech . . . . Pornography affects how people see the world, their fellows, and social relations."
If the fact that speech plays a role in a process of conditioning were enough to permit governmental regulation, that would be the end of freedom of speech. ... In short, we find the articulated compelling state interest cannot justify the criminal proscription when no actual children are involved in the illicit images either by production or depiction.
This decision has important implications for the future of free speech in the United States. As the court correctly noted, restraining certain ideas and expression because of what people fear might be the result is not something with a prestigious legal tradition.
Laws of exactly this sort were once created and used against political dissenters in America: at first they were upheld, but eventually they were struck down. A standard of "clear and present danger" was established to test whether or not certain speech could be regulated. This ruling, if struck down, would either greatly expand the scope of that standard or simply eliminate it. The government could try to restrict anything if enough people felt that it might harm others.