A Comparison Between New York v. Ferber and Ashcroft v.

Free Speech Coalition

The Constitution does not protect child pornography because it brings bodily and mental

harm to children. However, “virtual child pornography” produces no victims, and therefore the

First Amendment of the Constitution prohibits laws criminalizing it because “virtual child

pornography” constitutes artistic expression. Virtual child pornography can exhibit literary,

artistic, and political value without harming children. Public safety compels Congress to outlaw

child pornography, but virtual child pornography violates no standard of obscenity or child

pornography. Free speech excludes the sexual abuse of children, but virtual child pornography

continues receiving protection as victimless free speech.

For centuries, society has dealt with obscenity. However, society has difficultly in

defining obscenity because different cultures hold an assorted range of opinions. In 1973, the

Supreme Court set up the Miller standard, a test for obscenity in the United States. The Miller

standard tested whether material appeased prurient interests, depicted in a patently offensive

way, and had any serious literary, artistic, political, or scientific value. In 1982, New York

charged Paul Ferber with distributing child pornography. The Supreme Court threw out the

Miller standard and noted that the government has a compelling interest to protect children from

abuse regardless of obscenity laws. Together, courts use Miller and Ferber to determine the

legality of pornography. In 1996, Congress passed the Child Pornography Prevention Act,

banning all material which appears to be a child engaging in sexually explicit conduct. In 2002,

the “Free Speech Coalition” filed suit challenging its constitutionality. The Supreme Court

overturned the CPPA because its overbroad wording banned material that was neither obscene

under Miller nor illegal under Ferber.

 A ban on virtual child pornography creates a chilling effect that discourages the creation

and distribution of material that serves artistic, scientific, or political value. Teenage sexuality

has always appealed to writers and artists as an artistic theme since classical mythology to

Shakespeare’s Romeo and Juliet to modern works such as Traffic. Under a ban like the CPPA,

the government has the authority to prosecute an individual for possession of a legal film such as

Traffic. Other films, like Lolita, American Beauty, and The Tin Drum, also constitutes depictions

of a minor engaging in sexual activities. A ban prohibits youthful adults from participating in

pornographic films, and it allows the government to forbid adult pornography actors, who appear

childlike, from performing their jobs. Furthermore, because of rapid technological

advancements, computer-generated pornography inevitably appears. Already internet artists

constantly spawn works containing hentai1, a popular form of drawn pornography. Certain art

enthusiasts make a living by producing and distributing hentai comics, animation, and games.

Hentai also fuels the economy by providing art hobbyists with fan work to buy. The government

has no authority to ban their sexually identity and criminalize victimless hobbies (Brownstein).

Justice Thomas acknowledged the growing advancements in computer imagery and suggested

that the government enact child pornography regulation instead of banning child pornography

(Finkelman and Urofsky 952). The prohibition of virtual child pornography slows the progress of

art and literature, and it endangers the livelihood of many people who enjoy art.

Unlike real child pornography, virtual child pornography does not link to the sexual

abuse of child, but protects children by competing against real child pornography. The

Constitution authorizes Congress to pass laws that prohibit child pornography in concern for the

physiological, emotional, and mental health of the child during production. Producing real child

1
Hentai (n): a subgenre of the Japanese genres of manga and anime, characterized by overtly sexualized characters
and sexually explicit images and plots (Oxford English Dictionary).
pornography directly links to the sexual abuse of a child. According to Justice Kennedy,

“Ferber’s judgment about child pornography was based upon how it was made, not on what it

communicated” (Ashcroft v. Free Speech Coalition). In addition, Justice White noted that Ferber

dealt with mental welfare of a child and not the effects child pornography poses to society

(Green 661). Child pornography acts like a mental scar by harming the child’s well-being.

Distributing pornographic material produced with children damages their reputation and records

the abuse inflicted on them. However, despite the harmful effects of child pornography on a

child, virtual child pornography does not link to the sexual abuse of a child. In contrast, legal

pornography, combined with increased internet access, links to a reduction in sex crimes. “In

those three countries where child porn is legal the sex abuse against children is very low and it

has gone down compared to when it was illegal” (Hawaii Researcher). Sexual crimes involving

children has decreased because technology has made pornography more readily available

(Diamond). Reported rape decreased dramatically during a period of increased internet access,

and this comparison suggests that pornography reduces rape (Landsburg). Potential offenders

prefer using virtual child pornography to child pornography so as long as virtual child

pornography carries no legal danger. The concept of virtual child pornography allows child

pornographers to produce their works without sexually abusing children. This form of

pornography protects children from sexual abuse. Congress banned child pornography for its

harming psychological effect on a child during production, but pornographers produce virtual

child pornography without children, shielding children from sexual abuse.

The right to produce and possess virtual child pornography falls under the protection of

the First Amendment, unlike real child pornography, an exception to the First Amendment.

Society’s desire to purge the population of indecency compels Congress to outlaw material
containing obscenity and material containing child pornography. Society expects the government

to pass laws to criminalize public indecency and child exploitation. The government declares that

obscene material endangers society because it deprives individuals of morals and leads to impure

purposes (Willis “Obscenity” 674). In addition, “the prevention of sexual exploitation and abuse

of children constitutes a government objective of surpassing importance” (New York v. Ferber).

According to Ferber, the interest to protect children exceeds the interest to protect free speech.

The desire to combat obscene pornographers and pedophiles obliges courts to bypass the First

Amendment and uphold child pornography laws. However, even though society may find

material unappealing, the First Amendment prohibits Congress from passing laws regulating

what Americans see, read, or think. A strict interpretation of the Constitution protects all forms

of speech and art from government regulation. “The prospect of crime, however, by itself does

not justify laws suppressing protected speech” (Virtual Child). Congress exceeded the scope of

the Constitution and the opinions of Miller and Ferber by banning virtual child pornography. All

non-obscene material that contains no sexual abuse falls under the protection of the First

Amendment. The CPPA violated the Constitution by outlawing victimless speech, and abridging

the right to conduct lawful speech. Computer artists create virtual child pornography based on

their thoughts and imagination, and criminalizing thoughts violates the principles of liberty.

Desires of the majority do not justify the right to overrule the rights of a minority. The

Constitution’s protection of non-obscene speech protects virtual child pornography overrules

society’s opinions because society, regardless of size, cannot challenge an individual’s

paramount right to privacy and lawful speech.

Rather than endangering society and spreading immorality, virtual child pornography

protects children and allows Americans to express their artistic liberty. A ban on virtual child
pornography hinders artistic progress by discouraging artists and authors from exploring the

nature of human sexuality. Virtual child pornography provides an alternative to child

pornography and discourages the sexual abuse of children. The First Amendment protects human

imagination from government regulation. Given that virtual child pornography neither harms

children nor breaches obscenity laws, the Constitution protects virtual child pornography as a

form of free speech and artistic expression, and regardless of how detestable and unpleasant

virtual child pornography may seem, society must tolerate and respect an individual’s right to

free and privacy.