The statute at issue. Before 1996, Congress defined child pornography with reference to the Ferber standard. In passing the Child Pornography Prevention Act, Congress added the two categories of speech challenged in this case to its definition of child pornography. The first prohibited "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct." The Court observed that this provision "captures a range of depictions, sometimes called 'virtual child pornography,' which include computer-generated images, as well as images produced by more traditional means." The second prohibited "any sexually explicit image that was advertised, promoted, presented, described, or distributed in such a manner that conveys the impression it depicts a minor engaging in sexually explicit conduct."
The lawsuit. The Free Speech Coalition, fearing that Congress's expanded definition of child pornography would endanger their legitimate activities, filed a lawsuit seeking to enjoin enforcement of the CPPA in the United States District Court for the Northern District of California. They alleged that the first provision, prohibiting images that "appear to be" children engaged in sexual activity, and the second, prohibiting speech that "conveys the impression" that the images depict minors engaged in sexual activity, were overbroad, vague, and had a chilling effect on their legitimate work. The district court disagreed, adding that the overbreadth claim was specious as it was "highly unlikely" that any "adaptations of sexual works like Romeo and Juliet... will be treated as 'criminal contraband.'"
The Ninth Circuit reversed, reasoning that the government could not prohibit speech merely because of its tendency to persuade its viewers to engage in illegal activity. It ruled that the CPPA was substantially overbroad because it prohibited material that was neither obscene nor produced by exploiting real children, as Ferber prohibited. The court declined to reconsider the case en banc. The government asked the Supreme Court to review the case, and it agreed, noting that the Ninth Circuit's decision conflicted with the decisions of four other circuit courts of appeals. Ultimately the Court agreed with the Ninth Circuit.
The Court concluded that the "CPPA prohibits speech despite its serious literary, artistic, political, or scientific value." In particular, it prohibits the visual depiction of teenagers engaged in sexual activity, a "fact of modern society and has been a theme in art and literature throughout the ages." Such depictions include performances of Romeo and Juliet, by William Shakespeare; the 1996 film William Shakespeare's Romeo + Juliet, directed by Baz Luhrmann; and the Academy Award winning movies Traffic and American Beauty. "If these films, or hundreds of others of lesser note that explore those subjects, contain a single graphic depiction of sexual activity within the statutory definition, the possessor of the film would be subject to severe punishment without inquiry into the work's redeeming value. This is inconsistent with an essential First Amendment rule: The artistic merit of a work does not depend on the presence of a single explicit scene."
Thus, the CPPA prohibited speech for a different reason than anti-child pornography laws. Laws prohibiting the distribution and possession of child pornography ban speech because of the manner in which it is produced, regardless of its serious literary or artistic value. But speech prohibited by the CPPA "records no crime and creates no victims by its production." Child pornography is not necessarily without value, but it is illegal because of the harm that making and distributing it necessarily inflicts upon children. Ferber expressly allowed virtual child pornography as an alternative that could preserve whatever literary value child pornography might arguably have while at the same time mitigating the harm caused by making it. The CPPA would eliminate this distinction and punish people for engaging in what had heretofore been a legal alternative.
The Government countered that without the CPPA, child molesters might use virtual child pornography to seduce children. But "there are many things innocent in themselves, however, such as cartoons, video games, and candy, that might be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused." The First Amendment draws a distinction between words and deeds, and does not tolerate banning of mere words simply because those words could lead to bad deeds. Although the CPPA's objective was to prohibit illegal conduct, it went well beyond that goal by restricting speech available to law-abiding adults. And if the goal was to eliminate the market for all child pornography, the Court ruled that the government could not accomplish that goal by eliminating lawful speech in the process. The burden should not, however, fall on the speaker to prove that his speech is lawful, instead of on the government to prove that it is not. Furthermore, such an affirmative defense is "incomplete on its own terms" because it "allows persons to be convicted in some instances where they can prove children were not exploited in the production."
As for the provision that forbade advertising speech so as to convey the impression it depicted minors engaged in sexual conduct, the Court found this provision to be even more sweeping. "Even if a film contains no sexually explicit scenes involving minors, it could be treated as child pornography if the title and trailers convey the impression that the scenes would be found in the movie." Although pandering may be a relevant question in an obscenity prosecution, the "conveys the impression" prohibition forbade speech advertising depictions that were entirely lawful. "The First Amendment requires a more precise restriction" than the one drawn by CPPA.