Kiddie Porn

The recent decision resulting from Ashcroft v Free Speech Coalition, 2002 reenergizes many issues related to the First Amendment and free speech. The focus of the aforementioned case is the Child Pornography Prevention Act of 1996 (CPPA). There is a contention as to the courts and legislature's handling of virtual child pornography and whether it garners the same treatment- banned - as traditional child pornography. All sides of the issue consequently address the scope of the First Amendment, and Justice Kennedy wrote the opinion of the Court where he correctly limited the scope of intervention. Before delving into the hostile arena of virtual child pornography, a broader understanding of the context surrounding the First Amendment and child pornography is necessary for a proper understanding and interpretation of the case.

The Framers of the Constitution so greatly valued the right of individuals and groups to expresses their ideas that they drafted the First Amendment in order to provide protections against limiting free speech. The First Amendment reads "Congress shall make no law...abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances" (First Amendment, United States Constitution). As evidenced by the many cases brought before the Supreme Court, the legislature and the Court find the wording of the amendment unclear and opened to interpretation. Such cases regard the extent to which free speech is indeed free, and not limited by the government. The government saw, and continues to see that limiting free speech under certain circumstances is acceptable. The exact abilities of the government to limit free speech continue to evolve in their scope and spectrum. The Supreme Court found certain cases where the limits placed on free speech were too broad in the legislation. Such instances needed would not pass the notion of a "strict scrutiny test" because the legislation was not "narrowly tailored" in its application. Put another way, the legislation must be limited as narrowly as possible in its application to limit only speech in certain outlined circumstances.

The well being of a child presents an area of legislation that allows for abridging free speech. As children are inherently of lesser mental capacity than an adult of legal age is, the courts in America seek to prevent potentially harmful actions by children and against children. Justice Kennedy wrote, in the Court's Opinion that "Congress may pass valid laws to protect children from abuse, and it has", and he later notes that free speech may be limited under certain categories "including defamation, incitement, obscenity, and pornography produced with real children" (Kennedy 7). The Court and the United States is correct in this stance. Justice Kennedy again says concerning child pornography "The fact that a work contained serious literary, artistic, or other value did not excuse the harm it caused to its child participants" (Kennedy 11). Because children cannot aptly make decisions of high mental capacity, the Court finds it in the interest of the nation to legislate areas where it sees a possible danger that is too great to risk in the hands of ill-capable parents. Banning child pornography is such an instance. The Court is correct in its stance as not all parents are of high mental capacity either. Largely influenced by their actions and experiences as children, are their actions later in life and their mental capacities to make important decisions. As such, the Court should do whatever it can to prevent any ill harm to children, including a ban on child pornography.

A ban on child pornography is proper because of the harm to children, though a band on virtual child pornography is unconstitutional. The proper course taken by the court would be to allow virtual child pornography. As no is no infliction of harm to any child by virtual child pornography, limiting such speech violates the rights guaranteed to citizens by the United States of America under the First Amendment. Free speech guarantees exist regardless of the deemed "value" the speech has by any person or group because of the very objectivity of the term. Values are different from between people and groups. Allowing free speech permits such views to be expressed without repression or fear of intervention as long as others rights are not violated in the process and harm is not incurred as a result of the speech. Virtual child pornography is such an example of speech where no harm occurs and absent is the violations of one's rights. The previously mentioned right of the state to intervene to protect the rights of children is not applicable because children are in no way used in the production of the material.

Opposing arguments, though respected for their dissent, would continue as overbearing and overbroad in their scope of limitations. One might contend that although the creation of the product lacked actual children, the acts depicted continue to feed the sickness of pedophilia. As J.S. Mill discussed the "bad tendency of words" in On Liberty, here virtual child pornography presents a similar "bad tendency". Mill speaks of words having