Ashcroft v. Free Speech Coalition

Following is the case brief for Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)

Case Summary of Ashcroft v. Free Speech Coalition:

  • Two provisions of the Child Pornography Prevention Act of 1996 were challenged as overbroad and vague by an adult-entertainment trade association and other parties.
  • Specifically, the two provisions of the Act in question were (i) banning images of adults who looked like children engaged in sexually explicit conduct, and (ii) computer-generated, or virtual, child pornography.
  • The Ninth Circuit found the provisions overbroad, and therefore unconstitutional.
  • The U.S. Supreme Court agreed, holding that the relevant provisions were unconstitutional as overbroad because they banned some speech that is protected by the First Amendment.

Ashcroft v. Free Speech Coalition Case Brief

Statement of the Facts:

The Child Pornography Prevention Act of 1996 (CPPA) not only prohibits pornographic images that include actual children, but also prohibits “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture” that “appears to be,” or “conveys the impression” of, a minor engaged in sexual explicit conduct.  Therefore, the CPPA bans so-called “virtual child pornography” and images of adults who may look like children but do not involve real children.

An adult-entertainment trade association and others sued, claiming that the “appears to be” and “conveys the impression” language are overbroad and vague, and will chill legitimate First Amendment expression.

Procedural History:

  • The District Court granted summary judgment in favor of the statute’s validity.
  • The Ninth Circuit reversed, finding the CPPA invalid as overbroad.
  • The U.S. Supreme Court granted certiorari.

Issue and Holding:

Does the CPPA violate the Constitution as overbroad and vague, because it bans material that is protected by the First Amendment?  Yes.


The decision of the Ninth Circuit Court of Appeals is affirmed.

Rule of Law or Legal Principle Applied:

A law is unconstitutional as overbroad if it abridges a substantial amount of lawful speech.


The Court’s precedent in Miller v. California, 413 U.S. 15, provides a standard for material that is considered obscene.  In addition, the Court’s precedent in New York v. Ferber, 458 U.S. 747, explains the importance of removing any First Amendment protections from material that involves the exploitation of real children.

The CPPA, however, goes beyond Miller by banning some material that is not obscene under the Miller standard.  Specifically, there is no connection between the material banned by the CPPA and the “affront to community standards” provision of the Miller standard.

Further, the CPPA prohibits speech that neither records criminal activity nor exploits actual children.  Therefore, Ferber does not support the CPPA.  Thus, because the CPPA bans a substantial amount of lawful speech, the relevant provisions must be deemed unconstitutional as overbroad.

Concurring and Dissenting Opinions:

Concurring Opinion (Thomas):

There is a concern that, as technology advances, actual child pornography may be masked by what might appear to be virtual child pornography.  The government should not be foreclosed from prohibiting that type of pornography.

Concurring in part, Dissenting in part (O’Connor):

The part of the statute that prohibits pornography involving adults who look like children should be struck down as overbroad.  Yet, there is insufficient evidence that a ban on virtual pornography is overbroad.

Dissenting Opinion (Rehnquist):

The entire CPPA should be upheld.  While there are potentially impermissible applications of the CPPA, they are likely not substantial in light of the CPPA’s plain legitimate sweep.


Ashcroft v. Free Speech Coalition is a significant decision because by striking down the two overbroad provisions of the CPPA, the Court refused the opportunity to increase the amount of speech that is outside First Amendment protections.

Student Resources:

Read the Full Court Opinion

Listen to the Oral Arguments