ASHCROFT, ATTORNEY GENERAL, et al. v. FREE SPEECH COALITION et al.

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ASHCROFT, ATTORNEY GENERAL, et al. v.
FREE SPEECH COALITION et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 00–795. Argued October 30, 2001—Decided April 16, 2002
The Child Pornography Prevention Act of 1996 (CPPA) expands the fed-
eral prohibition on child pornography to include not only pornographic
images made using actual children, 18 U. S. C. § 2256(8)(A), but also
“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,” § 2256(8)(B),
and any sexually explicit image that is “advertised, promoted, pre-
sented, described, or distributed in such a manner that conveys the
impression” it depicts “a minor engaging in sexually explicit conduct,”
§ 2256(8)(D). Thus, § 2256(8)(B) bans a range of sexually explicit im-
ages, sometimes called “virtual child pornography,” that appear to de-
pict minors but were produced by means other than using real children,
such as through the use of youthful-looking adults or computer-imaging
technology. Section 2256(8)(D) is aimed at preventing the production
or distribution of pornographic material pandered as child pornography.
Fearing that the CPPA threatened their activities, respondents, an
adult-entertainment trade association and others, filed this suit alleging
that the “appears to be” and “conveys the impression” provisions are
overbroad and vague, chilling production of works protected by the
First Amendment. The District Court disagreed and granted the Gov-
ernment summary judgment, but the Ninth Circuit reversed. Gener-
ally, pornography can be banned only if it is obscene under Miller v.
California, 413 U. S. 15, but pornography depicting actual children can
be proscribed whether or not the images are obscene because of the
State’s interest in protecting the children exploited by the production
process, New York v. Ferber, 458 U. S. 747, 758, and in prosecuting those
who promote such sexual exploitation, id., at 761. The Ninth Circuit
held the CPPA invalid on its face, finding it to be substantially over-
broad because it bans materials that are neither obscene under Miller
nor produced by the exploitation of real children as in Ferber.
Held: The prohibitions of §§ 2256(8)(B) and 2256(8)(D) are overbroad and
unconstitutional. Pp. 244–258.
(a) Section 2256(8)(B) covers materials beyond the categories recog-
nized in Ferber and Miller, and the reasons the Government offers in

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support of limiting the freedom of speech have no justification in this
Court’s precedents or First Amendment law. Pp. 244–256.
(1) The CPPA is inconsistent with Miller. It extends to images
that are not obscene under the Miller standard, which requires the
Government to prove that the work in question, taken as a whole, ap-
peals to the prurient interest, is patently offensive in light of commu-
nity standards, and lacks serious literary, artistic, political, or scientific
value, 413 U. S., at 24. Materials need not appeal to the prurient inter-
est under the CPPA, which proscribes any depiction of sexually explicit
activity, no matter how it is presented. It is not necessary, moreover,
that the image be patently offensive. Pictures of what appear to be
17-year-olds engaging in sexually explicit activity do not in every case
contravene community standards. The CPPA also prohibits speech
having serious redeeming value, proscribing the visual depiction of
an idea—that of teenagers engaging in sexual activity—that is a fact
of modern society and has been a theme in art and literature for cen-
turies. A number of acclaimed movies, filmed without any child actors,
explore themes within the wide sweep of the statute’s prohibitions.
If those movies contain a single graphic depiction of sexual activity
within the statutory definition, their possessor would be subject to
severe punishment without inquiry into the literary value of the work.
This is inconsistent with an essential First Amendment rule: A work’s
artistic merit does not depend on the presence of a single explicit scene.
See, e. g., Book Named “John Cleland’s Memoirs of a Woman of Pleas-
ure” v. Attorney General of Mass., 383 U. S. 413, 419. Under Miller,
redeeming value is judged by considering the work as a whole. Where
the scene is part of the narrative, the work itself does not for this reason
become obscene, even though the scene in isolation might be offensive.
See Kois v. Wisconsin, 408 U. S. 229, 231 (per curiam). The CPPA
cannot be read to prohibit obscenity, because it lacks the required link
between its prohibitions and the affront to community standards pro-
hibited by the obscenity definition. Pp. 244–249.
(2) The CPPA finds no support in Ferber. The Court rejects the
Government’s argument that speech prohibited by the CPPA is virtu-
ally indistinguishable from material that may be banned under Ferber.
That case upheld a prohibition on the distribution and sale of child
pornography, as well as its production, because these acts were “in-
trinsically related” to the sexual abuse of children in two ways. 458
U. S., at 759. First, as a permanent record of a child’s abuse, the con-
tinued circulation itself would harm the child who had participated.
See id., at 759, and n. 10. Second, because the traffic in child por-
nography was an economic motive for its production, the State had
an interest in closing the distribution network. Id., at 760. Under

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either rationale, the speech had what the Court in effect held was a
proximate link to the crime from which it came. In contrast to the
speech in Ferber, speech that is itself the record of sexual abuse, the
CPPA prohibits speech that records no crime and creates no victims by
its production. Virtual child pornography is not “intrinsically related”
to the sexual abuse of children. While the Government asserts that
the images can lead to actual instances of child abuse, the causal link
is contingent and indirect. The harm does not necessarily follow from
the speech, but depends upon some unquantified potential for sub-
sequent criminal acts. The Government’s argument that these indirect
harms are sufficient because, as Ferber acknowledged, child pornogra-
phy rarely can be valuable speech, see id., at 762, suffers from two flaws.
First, Ferber’s judgment about child pornography was based upon how
it was made, not on what it communicated. The case reaffirmed that
where the speech is neither obscene nor the product of sexual abuse,
it does not fall outside the First Amendment’s protection. See id., at
764–765. Second, Ferber did not hold that child pornography is by
definition without value. It recognized some works in this category
might have significant value, see id., at 761, but relied on virtual im-
ages—the very images prohibited by the CPPA—as an alternative
and permissible means of expression, id., at 763. Because Ferber re-
lied on the distinction between actual and virtual child pornography
as supporting its holding, it provides no support for a statute that elimi-
nates the distinction and makes the alternative mode criminal as well.
Pp. 249–251.
(3) The Court rejects other arguments offered by the Government
to justify the CPPA’s prohibitions. The contention that the CPPA is
necessary because pedophiles may use virtual child pornography to
seduce children runs afoul of the principle that speech within the
rights of adults to hear may not be silenced completely in an attempt to
shield children from it. See, e. g., Sable Communications of Cal., Inc.
v. FCC, 492 U. S. 115, 130–131. That the evil in question depends upon
the actor’s unlawful conduct, defined as criminal quite apart from any
link to the speech in question, establishes that the speech ban is not
narrowly drawn. The argument that virtual child pornography whets
pedophiles’ appetites and encourages them to engage in illegal conduct
is unavailing because the mere tendency of speech to encourage un-
lawful acts is not a sufficient reason for banning it, Stanley v. Georgia,
394 U. S. 557, 566, absent some showing of a direct connection between
the speech and imminent illegal conduct, see, e. g., Brandenburg v. Ohio,
395 U. S. 444, 447 (per curiam). The argument that eliminating the
market for pornography produced using real children necessitates a
prohibition on virtual images as well is somewhat implausible because

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few pornographers would risk prosecution for abusing real children
if fictional, computerized images would suffice. Moreover, even if the
market deterrence theory were persuasive, the argument cannot justify
the CPPA because, here, there is no underlying crime at all. Finally,
the First Amendment is turned upside down by the argument that,
because it is difficult to distinguish between images made using real
children and those produced by computer imaging, both kinds of images
must be prohibited. The overbreadth doctrine prohibits the Govern-
ment from banning unprotected speech if a substantial amount of pro-
tected speech is prohibited or chilled in the process. See Broadrick v.
Oklahoma, 413 U. S. 601, 612. The Government’s rejoinder that the
CPPA should be read not as a prohibition on speech but as a measure
shifting the burden to the accused to prove the speech is lawful raises
serious constitutional difficulties. The Government misplaces its re-
liance on § 2252A(c), which creates an affirmative defense allowing a
defendant to avoid conviction for nonpossession offenses by showing
that the materials were produced using only adults and were not other-
wise distributed in a manner conveying the impression that they de-
picted real children. Even if an affirmative defense can save a statute
from First Amendment challenge, here the defense is insufficient be-
cause it does not apply to possession or to images created by computer
imaging, even where the defendant could demonstrate no children were
harmed in producing the images. Thus, the defense leaves unprotected
a substantial amount of speech not tied to the Government’s interest in
distinguishing images produced using real children from virtual ones.
Pp. 251–256.
(b) Section 2256(8)(D) is also substantially overbroad. The Court
disagrees with the Government’s view that the only difference between
that provision and § 2256(8)(B)’s “appears to be” provision is that
§ 2256(8)(D) requires the jury to assess the material at issue in light of
the manner in which it is promoted, but that the determination would
still depend principally upon the prohibited work’s content. The “con-
veys the impression” provision requires little judgment about the im-
age’s content; the work must be sexually explicit, but otherwise the
content is irrelevant. 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 such scenes will be found in the
movie. The determination turns on how the speech is presented, not
on what is depicted. The Government’s other arguments in support
of the CPPA do not bear on § 2256(8)(D). The materials, for instance,
are not likely to be confused for child pornography in a criminal trial.
Pandering may be relevant, as an evidentiary matter, to the question
whether particular materials are obscene. See Ginzburg v. United

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238 ASHCROFT v. FREE SPEECH COALITION
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States, 383 U. S. 463, 474. Where a defendant engages in the “com-
mercial exploitation” of erotica solely for the sake of prurient appeal,
id., at 466, the context created may be relevant to evaluating whether
the materials are obscene. Section 2256(8)(D), however, prohibits a
substantial amount of speech that falls outside Ginzburg’s rationale.
Proscribed material is tainted and unlawful in the hands of all who re-
ceive it, though they bear no responsibility for how it was marketed,
sold, or described. The statute, furthermore, does not require that the
context be part of an effort at “commercial exploitation.” Thus, the
CPPA does more than prohibit pandering. It bans possession of mate-
rial pandered as child pornography by someone earlier in the distribu-
tion chain, as well as a sexually explicit film that contains no youthful
actors but has been packaged to suggest a prohibited movie. Posses-
sion is a crime even when the possessor knows the movie was mis-
labeled. The First Amendment requires a more precise restriction.
Pp. 257–258.
(c) In light of the foregoing, respondents’ contention that §§ 2256(8)(B)
and 2256(8)(D) are void for vagueness need not be addressed. P. 258.
198 F. 3d 1083, affirmed.
Kennedy, J., delivered the opinion of the Court, in which Stevens,
Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed an opinion
concurring in the judgment, post, p. 259. O’Connor, J., filed an opinion
concurring in the judgment in part and dissenting in part, in which Rehn-
quist, C. J., and Scalia, J., joined as to Part II, post, p. 260. Rehnquist,
C. J., filed a dissenting opinion, in which Scalia, J., joined except for the
paragraph discussing legislative history, post, p. 267.
Deputy Solicitor General Clement argued the cause for
petitioners. With him on the briefs were Solicitor General
Olson, Acting Solicitor General Underwood, Acting Assist-
ant Attorney General Schiffer, Deputy Solicitor General
Kneedler, Irving L. Gornstein, Barbara L. Herwig, and
Jacob M. Lewis.
H. Louis Sirkin argued the cause for respondents. With
him on the brief were Laura A. Abrams and John P.
Feldmeier.*
*Briefs of amici curiae urging reversal were filed for the State of New
Jersey et al. by John J. Farmer, Jr., Attorney General of New Jersey, and

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Opinion of the Court
Justice Kennedy delivered the opinion of the Court.
We consider in this case whether the Child Pornography
Prevention Act of 1996 (CPPA), 18 U. S. C. § 2251 et seq.,
abridges the freedom of speech. The CPPA extends the
federal prohibition against child pornography to sexually
explicit images that appear to depict minors but were pro-
duced without using any real children. The statute pro-
hibits, in specific circumstances, possessing or distributing
these images, which may be created by using adults who
Patrick DeAlmeida and Carol Johnston, Deputy Attorneys General, and
by the Attorneys General for their respective jurisdictions as follows: Bill
Pryor of Alabama, Bruce M. Botelho of Alaska, Janet Napolitano of Ari-
zona, Mark Pryor of Arkansas, Ken Salazar of Colorado, Richard Blu-
menthal of Connecticut, M. Jane Brady of Delaware, Robert A. Butter-
worth of Florida, Earl I. Anzai of Hawaii, James E. Ryan of Illinois, Steve
Carter of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas,
J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts,
Jennifer M. Granholm of Michigan, Mike Hatch of Minnesota, Mike
Moore of Mississippi, Don Stenberg of Nebraska, Frankie Sue Del Papa
of Nevada, Patricia A. Madrid of New Mexico, Roy Cooper of North Caro-
lina, Wayne Stenehjem of North Dakota, Herbert D. Soll of the Northern
Mariana Islands, Betty D. Montgomery of Ohio, W. A. Drew Edmondson
of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania,
Sheldon Whitehouse of Rhode Island, Charles M. Condon of South Caro-
lina, John Cornyn of Texas, Mark L. Shurtleff of Utah, Mark L. Earley
of Virginia, Christine O. Gregoire of Washington, and James E. Doyle of
Wisconsin; for the National Center for Missing & Exploited Children by
Dennis DeConcini and Susan M. Kalp; for the National Law Center for
Children and Families et al. by J. Robert Flores, Bruce A. Taylor, and
Janet M. LaRue; for the National Legal Foundation by Barry C. Hodge;
for Morality in Media, Inc., by Robin S. Whitehead; and for Senator Sam
Brownback et al. by Jay Alan Sekulow, Stuart J. Roth, James M. Hender-
son, Sr., David A. Cortman, Colby M. May, Walter M. Weber, and Benja-
min W. Bull.
Briefs of amici curiae urging affirmance were filed for the American
Civil Liberties Union et al. by William Bennett Turner, Ann E. Beeson,
and Steven R. Shapiro; for the Association of American Publishers, Inc.,
et al. by R. Bruce Rich, Jonathan Bloom, and Michael A. Bamberger; and
for the Liberty Project by Jodie L. Kelley and Daniel Mach.

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look like minors or by using computer imaging. The new
technology, according to Congress, makes it possible to
create realistic images of children who do not exist. See
Congressional Findings, notes following 18 U. S. C. § 2251.
By prohibiting child pornography that does not depict
an actual child, the statute goes beyond New York v. Ferber,
458 U. S. 747 (1982), which distinguished child pornography
from other sexually explicit speech because of the State’s
interest in protecting the children exploited by the pro-
duction process. See id., at 758. As a general rule, por-
nography can be banned only if obscene, but under Ferber,
pornography showing minors can be proscribed whether
or not the images are obscene under the definition set forth
in Miller v. California, 413 U. S. 15 (1973). Ferber recog-
nized that “[t]he Miller standard, like all general definitions
of what may be banned as obscene, does not reflect the
State’s particular and more compelling interest in prosecut-
ing those who promote the sexual exploitation of children.”
458 U. S., at 761.
While we have not had occasion to consider the question,
we may assume that the apparent age of persons engaged
in sexual conduct is relevant to whether a depiction offends
community standards. Pictures of young children engaged
in certain acts might be obscene where similar depictions of
adults, or perhaps even older adolescents, would not. The
CPPA, however, is not directed at speech that is obscene;
Congress has proscribed those materials through a separate
statute. 18 U. S. C. §§ 1460–1466. Like the law in Ferber,
the CPPA seeks to reach beyond obscenity, and it makes no
attempt to conform to the Miller standard. For instance,
the statute would reach visual depictions, such as movies,
even if they have redeeming social value.
The principal question to be resolved, then, is whether
the CPPA is constitutional where it proscribes a significant
universe of speech that is neither obscene under Miller nor
child pornography under Ferber.

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Opinion of the Court
I
Before 1996, Congress defined child pornography as the
type of depictions at issue in Ferber, images made using
actual minors. 18 U. S. C. § 2252 (1994 ed.). The CPPA re-
tains that prohibition at 18 U. S. C. § 2256(8)(A) and adds
three other prohibited categories of speech, of which the
first, § 2256(8)(B), and the third, § 2256(8)(D), are at issue in
this case. Section 2256(8)(B) prohibits “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
prohibition on “any visual depiction” does not depend at all
on how the image is produced. The section captures a range
of depictions, sometimes called “virtual child pornography,”
which include computer-generated images, as well as images
produced by more traditional means. For instance, the lit-
eral terms of the statute embrace a Renaissance painting
depicting a scene from classical mythology, a “picture” that
“appears to be, of a minor engaging in sexually explicit con-
duct.” The statute also prohibits Hollywood movies, filmed
without any child actors, if a jury believes an actor “appears
to be” a minor engaging in “actual or simulated . . . sexual
intercourse.” § 2256(2).
These images do not involve, let alone harm, any children
in the production process; but Congress decided the materi-
als threaten children in other, less direct, ways. Pedophiles
might use the materials to encourage children to participate
in sexual activity. “[A] child who is reluctant to engage in
sexual activity with an adult, or to pose for sexually explicit
photographs, can sometimes be convinced by viewing de-
pictions of other children ‘having fun’ participating in such
activity.” Congressional Finding (3), notes following § 2251.
Furthermore, pedophiles might “whet their own sexual ap-
petites” with the pornographic images, “thereby increasing
the creation and distribution of child pornography and the
sexual abuse and exploitation of actual children.” Id., Find-

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ings (4), (10)(B). Under these rationales, harm flows from
the content of the images, not from the means of their pro-
duction. In addition, Congress identified another problem
created by computer-generated images: Their existence can
make it harder to prosecute pornographers who do use real
minors. See id., Finding (6)(A). As imaging technology
improves, Congress found, it becomes more difficult to prove
that a particular picture was produced using actual children.
To ensure that defendants possessing child pornography
using real minors cannot evade prosecution, Congress ex-
tended the ban to virtual child pornography.
Section 2256(8)(C) prohibits a more common and lower
tech means of creating virtual images, known as computer
morphing. Rather than creating original images, pornogra-
phers can alter innocent pictures of real children so that the
children appear to be engaged in sexual activity. Although
morphed images may fall within the definition of virtual
child pornography, they implicate the interests of real chil-
dren and are in that sense closer to the images in Ferber.
Respondents do not challenge this provision, and we do not
consider it.
Respondents do challenge § 2256(8)(D). Like the text of
the “appears to be” provision, the sweep of this provision
is quite broad. Section 2256(8)(D) defines child pornography
to include 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.” One Committee
Report identified the provision as directed at sexually ex-
plicit images pandered as child pornography. See S. Rep.
No. 104–358, p. 22 (1996) (“This provision prevents child
pornographers and pedophiles from exploiting prurient in-
terests in child sexuality and sexual activity through the
production or distribution of pornographic material which is
intentionally pandered as child pornography”). The statute
is not so limited in its reach, however, as it punishes even

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those possessors who took no part in pandering. Once a
work has been described as child pornography, the taint re-
mains on the speech in the hands of subsequent possessors,
making possession unlawful even though the content other-
wise would not be objectionable.
Fearing that the CPPA threatened the activities of its
members, respondent Free Speech Coalition and others chal-
lenged the statute in the United States District Court for
the Northern District of California. The Coalition, a Cali-
fornia trade association for the adult-entertainment indus-
try, alleged that its members did not use minors in their
sexually explicit works, but they believed some of these
materials might fall within the CPPA’s expanded definition
of child pornography. The other respondents are Bold Type,
Inc., the publisher of a book advocating the nudist life-
style; Jim Gingerich, a painter of nudes; and Ron Raffaelli,
a photographer specializing in erotic images. Respondents
alleged that the “appears to be” and “conveys the impres-
sion” provisions are overbroad and vague, chilling them from
producing works protected by the First Amendment. The
District Court disagreed and granted summary judgment
to the Government. The court dismissed the overbreadth
claim because it was “highly unlikely” that any “adaptations
of sexual works like ‘Romeo and Juliet,’ . . . will be treated
as ‘criminal contraband.’ ” App. to Pet. for Cert. 62a–63a.
The Court of Appeals for the Ninth Circuit reversed. See
198 F. 3d 1083 (1999). The court reasoned that the Govern-
ment could not prohibit speech because of its tendency to
persuade viewers to commit illegal acts. The court held the
CPPA to be substantially overbroad because it bans materi-
als that are neither obscene nor produced by the exploitation
of real children as in New York v. Ferber, 458 U. S. 747 (1982).
Judge Ferguson dissented on the ground that virtual images,
like obscenity and real child pornography, should be treated
as a category of speech unprotected by the First Amend-
ment. 198 F. 3d, at 1097. The Court of Appeals voted to

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deny the petition for rehearing en banc, over the dissent of
three judges. See 220 F. 3d 1113 (2000).
While the Ninth Circuit found the CPPA invalid on its
face, four other Courts of Appeals have sustained it. See
United States v. Fox, 248 F. 3d 394 (CA5 2001); United States
v. Mento, 231 F. 3d 912 (CA4 2000); United States v. Acheson,
195 F. 3d 645 (CA11 1999); United States v. Hilton, 167 F.
3d 61 (CA1), cert. denied, 528 U. S. 844 (1999). We granted
certiorari. 531 U. S. 1124 (2001).
II
The First Amendment commands, “Congress shall make
no law . . . abridging the freedom of speech.” The gov-
ernment may violate this mandate in many ways, e. g., Ro-
senberger v. Rector and Visitors of Univ. of Va., 515 U. S.
819 (1995); Keller v. State Bar of Cal., 496 U. S. 1 (1990), but
a law imposing criminal penalties on protected speech is a
stark example of speech suppression. The CPPA’s penalties
are indeed severe. A first offender may be imprisoned for
15 years. § 2252A(b)(1). A repeat offender faces a prison
sentence of not less than 5 years and not more than 30 years
in prison. Ibid. While even minor punishments can chill
protected speech, see Wooley v. Maynard, 430 U. S. 705
(1977), this case provides a textbook example of why we per-
mit facial challenges to statutes that burden expression.
With these severe penalties in force, few legitimate movie
producers or book publishers, or few other speakers in any
capacity, would risk distributing images in or near the un-
certain reach of this law. The Constitution gives signifi-
cant protection from overbroad laws that chill speech within
the First Amendment’s vast and privileged sphere. Under
this principle, the CPPA is unconstitutional on its face if
it prohibits a substantial amount of protected expression.
See Broadrick v. Oklahoma, 413 U. S. 601, 612 (1973).
The sexual abuse of a child is a most serious crime and an
act repugnant to the moral instincts of a decent people. In

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its legislative findings, Congress recognized that there are
subcultures of persons who harbor illicit desires for children
and commit criminal acts to gratify the impulses. See Con-
gressional Findings, notes following § 2251; see also U. S.
Dept. of Health and Human Services, Administration on
Children, Youth and Families, Child Maltreatment 1999
(estimating that 93,000 children were victims of sexual abuse
in 1999). Congress also found that surrounding the serious
offenders are those who flirt with these impulses and trade
pictures and written accounts of sexual activity with young
children.
Congress may pass valid laws to protect children from
abuse, and it has. E. g., 18 U. S. C. §§ 2241, 2251. The pros-
pect of crime, however, by itself does not justify laws sup-
pressing protected speech. See Kingsley Int’l Pictures
Corp. v. Regents of Univ. of N. Y., 360 U. S. 684, 689 (1959)
(“Among free men, the deterrents ordinarily to be applied to
prevent crime are education and punishment for violations
of the law, not abridgment of the rights of free speech”
(internal quotation marks and citation omitted)). It is also
well established that speech may not be prohibited because
it concerns subjects offending our sensibilities. See FCC v.
Pacifica Foundation, 438 U. S. 726, 745 (1978) (“[T]he fact
that society may find speech offensive is not a sufficient rea-
son for suppressing it”); see also Reno v. American Civil
Liberties Union, 521 U. S. 844, 874 (1997) (“In evaluating the
free speech rights of adults, we have made it perfectly clear
that ‘[s]exual expression which is indecent but not obscene is
protected by the First Amendment’ ”) (quoting Sable Com-
munications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989));
Carey v. Population Services Int’l, 431 U. S. 678, 701 (1977)
(“[T]he fact that protected speech may be offensive to some
does not justify its suppression”).
As a general principle, the First Amendment bars the
government from dictating what we see or read or speak
or hear. The freedom of speech has its limits; it does not

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embrace certain categories of speech, including defamation,
incitement, obscenity, and pornography produced with real
children. See Simon & Schuster, Inc. v. Members of N. Y.
State Crime Victims Bd., 502 U. S. 105, 127 (1991) (Ken-
nedy, J., concurring). While these categories may be pro-
hibited without violating the First Amendment, none of
them includes the speech prohibited by the CPPA. In his
dissent from the opinion of the Court of Appeals, Judge
Ferguson recognized this to be the law and proposed that
virtual child pornography should be regarded as an addi-
tional category of unprotected speech. See 198 F. 3d, at
1101. It would be necessary for us to take this step to
uphold the statute.
As we have noted, the CPPA is much more than a sup-
plement to the existing federal prohibition on obscenity.
Under Miller v. California, 413 U. S. 15 (1973), the Gov-
ernment must prove that the work, taken as a whole, ap-
peals to the prurient interest, is patently offensive in light
of community standards, and lacks serious literary, artistic,
political, or scientific value. Id., at 24. The CPPA, how-
ever, extends to images that appear to depict a minor en-
gaging in sexually explicit activity without regard to the
Miller requirements. The materials need not appeal to the
prurient interest. Any depiction of sexually explicit ac-
tivity, no matter how it is presented, is proscribed. The
CPPA applies to a picture in a psychology manual, as well
as a movie depicting the horrors of sexual abuse. It is not
necessary, moreover, that the image be patently offensive.
Pictures of what appear to be 17-year-olds engaging in sexu-
ally explicit activity do not in every case contravene com-
munity standards.
The CPPA prohibits speech despite its serious literary,
artistic, political, or scientific value. The statute proscribes
the visual depiction of an idea—that of teenagers engaging
in sexual activity—that is a fact of modern society and has
been a theme in art and literature throughout the ages.

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Under the CPPA, images are prohibited so long as the
persons appear to be under 18 years of age. 18 U. S. C.
§ 2256(1). This is higher than the legal age for marriage in
many States, as well as the age at which persons may con-
sent to sexual relations. See § 2243(a) (age of consent in the
federal maritime and territorial jurisdiction is 16); U. S. Na-
tional Survey of State Laws 384–388 (R. Leiter ed., 3d ed.
1999) (48 States permit 16-year-olds to marry with parental
consent); W. Eskridge & N. Hunter, Sexuality, Gender, and
the Law 1021–1022 (1997) (in 39 States and the District
of Columbia, the age of consent is 16 or younger). It is, of
course, undeniable that some youths engage in sexual ac-
tivity before the legal age, either on their own inclination
or because they are victims of sexual abuse.
Both themes—teenage sexual activity and the sexual
abuse of children—have inspired countless literary works.
William Shakespeare created the most famous pair of teen-
age lovers, one of whom is just 13 years of age. See Romeo
and Juliet, act I, sc. 2, l. 9 (“She hath not seen the change of
fourteen years”). In the drama, Shakespeare portrays the
relationship as something splendid and innocent, but not
juvenile. The work has inspired no less than 40 motion
pictures, some of which suggest that the teenagers consum-
mated their relationship. E. g., Romeo and Juliet (B. Luhr-
mann director, 1996). Shakespeare may not have written
sexually explicit scenes for the Elizabethan audience, but
were modern directors to adopt a less conventional approach,
that fact alone would not compel the conclusion that the work
was obscene.
Contemporary movies pursue similar themes. Last year’s
Academy Awards featured the movie, Traffic, which was
nominated for Best Picture. See Predictable and Less So,
the Academy Award Contenders, N. Y. Times, Feb. 14, 2001,
p. E11. The film portrays a teenager, identified as a 16-
year-old, who becomes addicted to drugs. The viewer sees
the degradation of her addiction, which in the end leads her

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to a filthy room to trade sex for drugs. The year before,
American Beauty won the Academy Award for Best Picture.
See “American Beauty” Tops the Oscars, N. Y. Times, Mar.
27, 2000, p. E1. In the course of the movie, a teenage girl
engages in sexual relations with her teenage boyfriend, and
another yields herself to the gratification of a middle-aged
man. The film also contains a scene where, although the
movie audience understands the act is not taking place, one
character believes he is watching a teenage boy performing
a sexual act on an older man.
Our society, like other cultures, has empathy and enduring
fascination with the lives and destinies of the young. Art
and literature express the vital interest we all have in the
formative years we ourselves once knew, when wounds can
be so grievous, disappointment so profound, and mistaken
choices so tragic, but when moral acts and self-fulfillment
are still in reach. Whether or not the films we mention
violate the CPPA, they explore themes within the wide
sweep of the statute’s prohibitions. If these films, or hun-
dreds 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. See Book
Named “John Cleland’s Memoirs of a Woman of Pleasure”
v. Attorney General of Mass., 383 U. S. 413, 419 (1966)
(plurality opinion) (“[T]he social value of the book can nei-
ther be weighed against nor canceled by its prurient appeal
or patent offensiveness”). Under Miller, the First Amend-
ment requires that redeeming value be judged by consider-
ing the work as a whole. Where the scene is part of the
narrative, the work itself does not for this reason become
obscene, even though the scene in isolation might be offen-
sive. See Kois v. Wisconsin, 408 U. S. 229, 231 (1972) (per

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curiam). For this reason, and the others we have noted,
the CPPA cannot be read to prohibit obscenity, because it
lacks the required link between its prohibitions and the
affront to community standards prohibited by the definition
of obscenity.
The Government seeks to address this deficiency by ar-
guing that speech prohibited by the CPPA is virtually indis-
tinguishable from child pornography, which may be banned
without regard to whether it depicts works of value. See
New York v. Ferber, 458 U. S., at 761. Where the images
are themselves the product of child sexual abuse, Ferber
recognized that the State had an interest in stamping it out
without regard to any judgment about its content. Id., at
761, n. 12; see also id., at 775 (O’Connor, J., concurring) (“As
drafted, New York’s statute does not attempt to suppress
the communication of particular ideas”). The production of
the work, not its content, was the target of the statute. The
fact that a work contained serious literary, artistic, or other
value did not excuse the harm it caused to its child partici-
pants. It was simply “unrealistic to equate a community’s
toleration for sexually oriented materials with the permis-
sible scope of legislation aimed at protecting children from
sexual exploitation.” Id., at 761, n. 12.
Ferber upheld a prohibition on the distribution and sale
of child pornography, as well as its production, because these
acts were “intrinsically related” to the sexual abuse of chil-
dren in two ways. Id., at 759. First, as a permanent record
of a child’s abuse, the continued circulation itself would harm
the child who had participated. Like a defamatory state-
ment, each new publication of the speech would cause new
injury to the child’s reputation and emotional well-being.
See id., at 759, and n. 10. Second, because the traffic in child
pornography was an economic motive for its production, the
State had an interest in closing the distribution network.
“The most expeditious if not the only practical method of law
enforcement may be to dry up the market for this material

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by imposing severe criminal penalties on persons selling, ad-
vertising, or otherwise promoting the product.” Id., at 760.
Under either rationale, the speech had what the Court in
effect held was a proximate link to the crime from which
it came.
Later, in Osborne v. Ohio, 495 U. S. 103 (1990), the Court
ruled that these same interests justified a ban on the posses-
sion of pornography produced by using children. “Given the
importance of the State’s interest in protecting the victims
of child pornography,” the State was justified in “attempting
to stamp out this vice at all levels in the distribution chain.”
Id., at 110. Osborne also noted the State’s interest in pre-
venting child pornography from being used as an aid in the
solicitation of minors. Id., at 111. The Court, however, an-
chored its holding in the concern for the participants, those
whom it called the “victims of child pornography.” Id., at
110. It did not suggest that, absent this concern, other gov-
ernmental interests would suffice. See infra, at 251–253.
In contrast to the speech in Ferber, speech that itself is
the record of sexual abuse, the CPPA prohibits speech that
records no crime and creates no victims by its production.
Virtual child pornography is not “intrinsically related” to the
sexual abuse of children, as were the materials in Ferber.
458 U. S., at 759. While the Government asserts that the
images can lead to actual instances of child abuse, see infra,
at 251–254, the causal link is contingent and indirect. The
harm does not necessarily follow from the speech, but de-
pends upon some unquantified potential for subsequent crim-
inal acts.
The Government says these indirect harms are sufficient
because, as Ferber acknowledged, child pornography rarely
can be valuable speech. See 458 U. S., at 762 (“The value
of permitting live performances and photographic repro-
ductions of children engaged in lewd sexual conduct is
exceedingly modest, if not de minimis”). This argument,
however, suffers from two flaws. First, Ferber’s judg-

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ment about child pornography was based upon how it was
made, not on what it communicated. The case reaffirmed
that where the speech is neither obscene nor the product
of sexual abuse, it does not fall outside the protection of the
First Amendment. See id., at 764–765 (“[T]he distribution
of descriptions or other depictions of sexual conduct, not
otherwise obscene, which do not involve live performance
or photographic or other visual reproduction of live perform-
ances, retains First Amendment protection”).
The second flaw in the Government’s position is that
Ferber did not hold that child pornography is by definition
without value. On the contrary, the Court recognized some
works in this category might have significant value, see id.,
at 761, but relied on virtual images—the very images pro-
hibited by the CPPA—as an alternative and permissible
means of expression: “[I]f it were necessary for literary or
artistic value, a person over the statutory age who perhaps
looked younger could be utilized. Simulation outside of the
prohibition of the statute could provide another alternative.”
Id., at 763. Ferber, then, not only referred to the distinction
between actual and virtual child pornography, it relied on
it as a reason supporting its holding. Ferber provides no
support for a statute that eliminates the distinction and
makes the alternative mode criminal as well.
III
The CPPA, for reasons we have explored, is inconsistent
with Miller and finds no support in Ferber. The Govern-
ment seeks to justify its prohibitions in other ways. It ar-
gues that the CPPA is necessary because pedophiles may
use virtual child pornography to seduce children. 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 Government,
of course, may punish adults who provide unsuitable mate-

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rials to children, see Ginsberg v. New York, 390 U. S. 629
(1968), and it may enforce criminal penalties for unlawful
solicitation. The precedents establish, however, that speech
within the rights of adults to hear may not be silenced com-
pletely in an attempt to shield children from it. See Sable
Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989).
In Butler v. Michigan, 352 U. S. 380, 381 (1957), the Court
invalidated a statute prohibiting distribution of an indecent
publication because of its tendency to “ ‘incite minors to vio-
lent or depraved or immoral acts.’ ” A unanimous Court
agreed upon the important First Amendment principle that
the State could not “reduce the adult population . . . to
reading only what is fit for children.” Id., at 383. We have
reaffirmed this holding. See United States v. Playboy En-
tertainment Group, Inc., 529 U. S. 803, 814 (2000) (“[T]he
objective of shielding children does not suffice to support a
blanket ban if the protection can be accomplished by a less
restrictive alternative”); Reno v. American Civil Liberties
Union, 521 U. S., at 875 (The “governmental interest in pro-
tecting children from harmful materials . . . does not justify
an unnecessarily broad suppression of speech addressed to
adults”); Sable Communications v. FCC, supra, at 130–131
(striking down a ban on “dial-a-porn” messages that had “the
invalid effect of limiting the content of adult telephone con-
versations to that which is suitable for children to hear”).
Here, the Government wants to keep speech from children
not to protect them from its content but to protect them
from those who would commit other crimes. The principle,
however, remains the same: The Government cannot ban
speech fit for adults simply because it may fall into the hands
of children. The evil in question depends upon the actor’s
unlawful conduct, conduct defined as criminal quite apart
from any link to the speech in question. This establishes
that the speech ban is not narrowly drawn. The objective
is to prohibit illegal conduct, but this restriction goes well

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beyond that interest by restricting the speech available to
law-abiding adults.
The Government submits further that virtual child por-
nography whets the appetites of pedophiles and encourages
them to engage in illegal conduct. This rationale cannot
sustain the provision in question. The mere tendency of
speech to encourage unlawful acts is not a sufficient reason
for banning it. The government “cannot constitutionally
premise legislation on the desirability of controlling a per-
son’s private thoughts.” Stanley v. Georgia, 394 U. S. 557,
566 (1969). First Amendment freedoms are most in danger
when the government seeks to control thought or to justify
its laws for that impermissible end. The right to think is
the beginning of freedom, and speech must be protected from
the government because speech is the beginning of thought.
To preserve these freedoms, and to protect speech for
its own sake, the Court’s First Amendment cases draw vital
distinctions between words and deeds, between ideas and
conduct. See Kingsley Int’l Pictures Corp., 360 U. S., at
689; see also Bartnicki v. Vopper, 532 U. S. 514, 529 (2001)
(“The normal method of deterring unlawful conduct is to
impose an appropriate punishment on the person who en-
gages in it”). The government may not prohibit speech
because it increases the chance an unlawful act will be com-
mitted “at some indefinite future time.” Hess v. Indiana,
414 U. S. 105, 108 (1973) (per curiam). The government
may suppress speech for advocating the use of force or a
violation of law only if “such advocacy is directed to in-
citing or producing imminent lawless action and is likely
to incite or produce such action.” Brandenburg v. Ohio,
395 U. S. 444, 447 (1969) (per curiam). There is here no
attempt, incitement, solicitation, or conspiracy. The Gov-
ernment has shown no more than a remote connection be-
tween speech that might encourage thoughts or impulses and
any resulting child abuse. Without a significantly stronger,
more direct connection, the Government may not prohibit

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speech on the ground that it may encourage pedophiles to
engage in illegal conduct.
The Government next argues that its objective of elimi-
nating the market for pornography produced using real
children necessitates a prohibition on virtual images as well.
Virtual images, the Government contends, are indistin-
guishable from real ones; they are part of the same market
and are often exchanged. In this way, it is said, virtual im-
ages promote the trafficking in works produced through the
exploitation of real children. The hypothesis is somewhat
implausible. If virtual images were identical to illegal child
pornography, the illegal images would be driven from the
market by the indistinguishable substitutes. Few por-
nographers would risk prosecution by abusing real children
if fictional, computerized images would suffice.
In the case of the material covered by Ferber, the creation
of the speech is itself the crime of child abuse; the prohibi-
tion deters the crime by removing the profit motive. See
Osborne, 495 U. S., at 109–110. Even where there is an
underlying crime, however, the Court has not allowed the
suppression of speech in all cases. E. g., Bartnicki, supra,
at 529 (market deterrence would not justify law prohibiting
a radio commentator from distributing speech that had been
unlawfully intercepted). We need not consider where to
strike the balance in this case, because here, there is no
underlying crime at all. Even if the Government’s market
deterrence theory were persuasive in some contexts, it
would not justify this statute.
Finally, the Government says that the possibility of pro-
ducing images by using computer imaging makes it very
difficult for it to prosecute those who produce pornography
by using real children. Experts, we are told, may have dif-
ficulty in saying whether the pictures were made by using
real children or by using computer imaging. The necessary
solution, the argument runs, is to prohibit both kinds of im-

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ages. The argument, in essence, is that protected speech
may be banned as a means to ban unprotected speech. This
analysis turns the First Amendment upside down.
The Government may not suppress lawful speech as the
means to suppress unlawful speech. Protected speech does
not become unprotected merely because it resembles the
latter. The Constitution requires the reverse. “[T]he pos-
sible harm to society in permitting some unprotected speech
to go unpunished is outweighed by the possibility that pro-
tected speech of others may be muted . . . .” Broadrick
v. Oklahoma, 413 U. S., at 612. The overbreadth doctrine
prohibits the Government from banning unprotected speech
if a substantial amount of protected speech is prohibited or
chilled in the process.
To avoid the force of this objection, the Government would
have us read the CPPA not as a measure suppressing speech
but as a law shifting the burden to the accused to prove
the speech is lawful. In this connection, the Government
relies on an affirmative defense under the statute, which
allows a defendant to avoid conviction for nonpossession
offenses by showing that the materials were produced using
only adults and were not otherwise distributed in a manner
conveying the impression that they depicted real children.
See 18 U. S. C. § 2252A(c).
The Government raises serious constitutional difficulties
by seeking to impose on the defendant the burden of proving
his speech is not unlawful. An affirmative defense applies
only after prosecution has begun, and the speaker must
himself prove, on pain of a felony conviction, that his con-
duct falls within the affirmative defense. In cases under
the CPPA, the evidentiary burden is not trivial. Where the
defendant is not the producer of the work, he may have no
way of establishing the identity, or even the existence, of
the actors. If the evidentiary issue is a serious problem for
the Government, as it asserts, it will be at least as difficult

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for the innocent possessor. The statute, moreover, applies
to work created before 1996, and the producers themselves
may not have preserved the records necessary to meet the
burden of proof. Failure to establish the defense can lead
to a felony conviction.
We need not decide, however, whether the Government
could impose this burden on a speaker. Even if an affirma-
tive defense can save a statute from First Amendment chal-
lenge, here the defense is incomplete and insufficient, even
on its own terms. It allows persons to be convicted in some
instances where they can prove children were not exploited
in the production. A defendant charged with possessing,
as opposed to distributing, proscribed works may not de-
fend on the ground that the film depicts only adult actors.
See ibid. So while the affirmative defense may protect a
movie producer from prosecution for the act of distribution,
that same producer, and all other persons in the subsequent
distribution chain, could be liable for possessing the prohib-
ited work. Furthermore, the affirmative defense provides
no protection to persons who produce speech by using com-
puter imaging, or through other means that do not involve
the use of adult actors who appear to be minors. See ibid.
In these cases, the defendant can demonstrate no children
were harmed in producing the images, yet the affirmative
defense would not bar the prosecution. For this reason, the
affirmative defense cannot save the statute, for it leaves
unprotected a substantial amount of speech not tied to the
Government’s interest in distinguishing images produced
using real children from virtual ones.
In sum, § 2256(8)(B) covers materials beyond the catego-
ries recognized in Ferber and Miller, and the reasons the
Government offers in support of limiting the freedom of
speech have no justification in our precedents or in the law
of the First Amendment. The provision abridges the free-
dom to engage in a substantial amount of lawful speech.
For this reason, it is overbroad and unconstitutional.

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IV
Respondents challenge § 2256(8)(D) as well. This provi-
sion bans depictions of sexually explicit conduct that are
“advertised, promoted, presented, described, or distributed
in such a manner that conveys the impression that the mate-
rial is or contains a visual depiction of a minor engaging in
sexually explicit conduct.” The parties treat the section as
nearly identical to the provision prohibiting materials that
appear to be child pornography. In the Government’s view,
the difference between the two is that “the ‘conveys the im-
pression’ provision requires the jury to assess the material
at issue in light of the manner in which it is promoted.”
Brief for Petitioners 18, n. 3. The Government’s assump-
tion, however, is that the determination would still depend
principally upon the content of the prohibited work.
We disagree with this view. The CPPA prohibits sexually
explicit materials that “conve[y] the impression” they depict
minors. While that phrase may sound like the “appears to
be” prohibition in § 2256(8)(B), it requires little judgment
about the content of the image. Under § 2256(8)(D), the
work must be sexually explicit, but otherwise the content
is irrelevant. Even if a film contains no sexually explicit
scenes involving minors, it could be treated as child por-
nography if the title and trailers convey the impression that
the scenes would be found in the movie. The determina-
tion turns on how the speech is presented, not on what is
depicted. While the legislative findings address at length
the problems posed by materials that look like child pornog-
raphy, they are silent on the evils posed by images simply
pandered that way.
The Government does not offer a serious defense of this
provision, and the other arguments it makes in support of
the CPPA do not bear on § 2256(8)(D). The materials, for
instance, are not likely to be confused for child pornog-
raphy in a criminal trial. The Court has recognized that
pandering may be relevant, as an evidentiary matter, to

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the question whether particular materials are obscene. See
Ginzburg v. United States, 383 U. S. 463, 474 (1966) (“[I]n
close cases evidence of pandering may be probative with re-
spect to the nature of the material in question and thus
satisfy the [obscenity] test”). Where a defendant engages
in the “commercial exploitation of erotica solely for the
sake of their prurient appeal,” id., at 466, the context he
or she creates may itself be relevant to the evaluation of
the materials.
Section 2256(8)(D), however, prohibits a substantial
amount of speech that falls outside Ginzburg’s rationale.
Materials falling within the proscription are tainted and
unlawful in the hands of all who receive it, though they bear
no responsibility for how it was marketed, sold, or described.
The statute, furthermore, does not require that the context
be part of an effort at “commercial exploitation.” Ibid. As
a consequence, the CPPA does more than prohibit pandering.
It prohibits possession of material described, or pandered,
as child pornography by someone earlier in the distribu-
tion chain. The provision prohibits a sexually explicit film
containing no youthful actors, just because it is placed in a
box suggesting a prohibited movie. Possession is a crime
even when the possessor knows the movie was mislabeled.
The First Amendment requires a more precise restriction.
For this reason, § 2256(8)(D) is substantially overbroad and
in violation of the First Amendment.
V
For the reasons we have set forth, the prohibitions of
§§ 2256(8)(B) and 2256(8)(D) are overbroad and unconstitu-
tional. Having reached this conclusion, we need not ad-
dress respondents’ further contention that the provisions
are unconstitutional because of vague statutory language.
The judgment of the Court of Appeals is affirmed.
It is so ordered.

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Thomas, J., concurring in judgment
Justice Thomas, concurring in the judgment.
In my view, the Government’s most persuasive asserted
interest in support of the Child Pornography Prevention Act
of 1996 (CPPA), 18 U. S. C. § 2251 et seq., is the prosecution
rationale—that persons who possess and disseminate porno-
graphic images of real children may escape conviction by
claiming that the images are computer generated, thereby
raising a reasonable doubt as to their guilt. See Brief for
Petitioners 37. At this time, however, the Government as-
serts only that defendants raise such defenses, not that they
have done so successfully. In fact, the Government points
to no case in which a defendant has been acquitted based on
a “computer-generated images” defense. See id., at 37–38,
and n. 8. While this speculative interest cannot support
the broad reach of the CPPA, technology may evolve to the
point where it becomes impossible to enforce actual child
pornography laws because the Government cannot prove
that certain pornographic images are of real children. In
the event this occurs, the Government should not be fore-
closed from enacting a regulation of virtual child pornogra-
phy that contains an appropriate affirmative defense or some
other narrowly drawn restriction.
The Court suggests that the Government’s interest in en-
forcing prohibitions against real child pornography cannot
justify prohibitions on virtual child pornography, because
“[t]his analysis turns the First Amendment upside down.
The Government may not suppress lawful speech as the
means to suppress unlawful speech.” Ante, at 255. But
if technological advances thwart prosecution of “unlawful
speech,” the Government may well have a compelling in-
terest in barring or otherwise regulating some narrow cate-
gory of “lawful speech” in order to enforce effectively laws
against pornography made through the abuse of real chil-
dren. The Court does leave open the possibility that a more
complete affirmative defense could save a statute’s con-
stitutionality, see ante, at 256, implicitly accepting that some

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regulation of virtual child pornography might be constitu-
tional. I would not prejudge, however, whether a more
complete affirmative defense is the only way to narrowly
tailor a criminal statute that prohibits the possession and
dissemination of virtual child pornography. Thus, I concur
in the judgment of the Court.
Justice O’Connor, with whom The Chief Justice and
Justice Scalia join as to Part II, concurring in the judg-
ment in part and dissenting in part.
The Child Pornography Prevention Act of 1996 (CPPA), 18
U. S. C. § 2251 et seq., proscribes the “knowin[g]” reproduc-
tion, distribution, sale, reception, or possession of images
that fall under the statute’s definition of child pornography,
§ 2252A(a). Possession is punishable by up to 5 years in
prison for a first offense, § 2252A(b), and all other transgres-
sions are punishable by up to 15 years in prison for a first
offense, § 2252A(a). The CPPA defines child pornography to
include “any visual depiction . . . of sexually explicit conduct”
where “such visual depiction is, or appears to be, of a minor
engaging in sexually explicit conduct,” § 2256(8)(B) (emphasis
added), or “such visual depiction is advertised, promoted,
presented, described, or distributed in such a manner that
conveys the impression that the material is or contains a
visual depiction of a minor engaging in sexually explicit con-
duct,” § 2256(8)(D) (emphasis added). The statute defines
“sexually explicit conduct” as “actual or simulated—. . . sex-
ual intercourse . . . ; . . . bestiality; . . . masturbation; . . .
sadistic or masochistic abuse; or . . . lascivious exhibition of
the genitals or pubic area of any person.” § 2256(2).
The CPPA provides for two affirmative defenses. First,
a defendant is not liable for possession if the defendant pos-
sesses less than three proscribed images and promptly de-
stroys such images or reports the matter to law enforcement.
§ 2252A(d). Second, a defendant is not liable for the remain-
ing acts proscribed in § 2252A(a) if the images involved were

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produced using only adult subjects and are not presented in
such a manner as to “convey the impression” they contain
depictions of minors engaging in sexually explicit conduct.
§ 2252A(c).
This litigation involves a facial challenge to the CPPA’s
prohibitions of pornographic images that “appea[r] to be . . .
of a minor” and of material that “conveys the impression”
that it contains pornographic images of minors. While I
agree with the Court’s judgment that the First Amendment
requires that the latter prohibition be struck down, I
disagree with its decision to strike down the former prohi-
bition in its entirety. The “appears to be . . . of a minor”
language in § 2256(8)(B) covers two categories of speech: por-
nographic images of adults that look like children (“youthful
adult pornography”) and pornographic images of children
created wholly on a computer, without using any actual chil-
dren (“virtual child pornography”). The Court concludes,
correctly, that the CPPA’s ban on youthful adult pornogra-
phy is overbroad. In my view, however, respondents fail to
present sufficient evidence to demonstrate that the ban on
virtual child pornography is overbroad. Because invalida-
tion due to overbreadth is such “strong medicine,” Broadrick
v. Oklahoma, 413 U. S. 601, 613 (1973), I would strike down
the prohibition of pornography that “appears to be” of mi-
nors only insofar as it is applied to the class of youthful
adult pornography.
I
Respondents assert that the CPPA’s prohibitions of youth-
ful adult pornography, virtual child pornography, and mate-
rial that “conveys the impression” that it contains actual
child pornography are overbroad, that the prohibitions are
content-based regulations not narrowly tailored to serve a
compelling Government interest, and that the prohibitions
are unconstitutionally vague. The Government not only dis-
agrees with these specific contentions, but also requests that

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the Court exclude youthful adult and virtual child pornogra-
phy from the protection of the First Amendment.
I agree with the Court’s decision not to grant this request.
Because the Government may already prohibit obscenity
without violating the First Amendment, see Miller v. Cali-
fornia, 413 U. S. 15, 23 (1973), what the Government asks
this Court to rule is that it may also prohibit youthful adult
and virtual child pornography that is merely indecent with-
out violating that Amendment. Although such pornography
looks like the material at issue in New York v. Ferber, 458
U. S. 747 (1982), no children are harmed in the process of
creating such pornography. Id., at 759. Therefore, Ferber
does not support the Government’s ban on youthful adult
and virtual child pornography. See ante, at 249–251. The
Government argues that, even if the production of such por-
nography does not directly harm children, this material aids
and abets child abuse. See ante, at 251–254. The Court
correctly concludes that the causal connection between por-
nographic images that “appear” to include minors and actual
child abuse is not strong enough to justify withdrawing First
Amendment protection for such speech. See ante, at 250.
I also agree with the Court’s decision to strike down the
CPPA’s ban on material presented in a manner that “conveys
the impression” that it contains pornographic depictions of
actual children (“actual child pornography”). 18 U. S. C.
§ 2256(8)(D). The Government fails to explain how this ban
serves any compelling state interest. Any speech covered
by § 2256(8)(D) that is obscene, actual child pornography, or
otherwise indecent is prohibited by other federal statutes.
See §§ 1460–1466 (obscenity), 2256(8)(A), (B) (actual child
pornography), 2256(8)(B) (youthful adult and virtual child
pornography). The Court concludes that § 2256(8)(D) is
overbroad, but its reasoning also persuades me that the
provision is not narrowly tailored. See ante, at 257–258.
The provision therefore fails strict scrutiny. United States

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v. Playboy Entertainment Group, Inc., 529 U. S. 803, 813
(2000).
Finally, I agree with the Court that the CPPA’s ban on
youthful adult pornography is overbroad. The Court pro-
vides several examples of movies that, although possessing
serious literary, artistic, or political value and employing
only adult actors to perform simulated sexual conduct, fall
under the CPPA’s proscription on images that “appea[r] to
be . . . of a minor engaging in sexually explicit conduct,” 18
U. S. C. § 2256(8)(B). See ante, at 247–248 (citing Romeo and
Juliet, Traffic, and American Beauty). Individuals or busi-
nesses found to possess just three such films have no defense
to criminal liability under the CPPA. § 2252A(d).
II
I disagree with the Court, however, that the CPPA’s prohi-
bition of virtual child pornography is overbroad. Before I
reach that issue, there are two preliminary questions:
whether the ban on virtual child pornography fails strict
scrutiny and whether that ban is unconstitutionally vague.
I would answer both in the negative.
The Court has long recognized that the Government has a
compelling interest in protecting our Nation’s children. See
Ferber, supra, at 756–757 (citing cases). This interest is
promoted by efforts directed against sexual offenders and
actual child pornography. These efforts, in turn, are sup-
ported by the CPPA’s ban on virtual child pornography.
Such images whet the appetites of child molesters, § 121, 110
Stat. 3009–26, Congressional Findings (4), (10)(B), notes fol-
lowing 18 U. S. C. § 2251, who may use the images to seduce
young children, id., Finding (3). Of even more serious con-
cern is the prospect that defendants indicted for the produc-
tion, distribution, or possession of actual child pornography
may evade liability by claiming that the images attributed to
them are in fact computer generated. Id., Finding (6)(A).
Respondents may be correct that no defendant has success-

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fully employed this tactic. See, e. g., United States v. Fox,
248 F. 3d 394 (CA5 2001); United States v. Vig, 167 F. 3d 443
(CA8 1999); United States v. Kimbrough, 69 F. 3d 723 (CA5
1995); United States v. Coleman, 54 M. J. 869 (Army Ct.
Crim. App. 2001). But, given the rapid pace of advances in
computer-graphics technology, the Government’s concern is
reasonable. Computer-generated images lodged with the
Court by amici curiae National Law Center for Children
and Families et al. bear a remarkable likeness to actual
human beings. Anyone who has seen, for example, the film
Final Fantasy: The Spirits Within (H. Sakaguchi and M. Sak-
akibara directors, 2001) can understand the Government’s
concern. Moreover, this Court’s cases do not require Con-
gress to wait for harm to occur before it can legislate against
it. See Turner Broadcasting System, Inc. v. FCC, 520 U. S.
180, 212 (1997).
Respondents argue that, even if the Government has a
compelling interest to justify banning virtual child pornogra-
phy, the “appears to be . . . of a minor” language is not nar-
rowly tailored to serve that interest. See Sable Communi-
cations of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989). They
assert that the CPPA would capture even cartoon sketches
or statues of children that were sexually suggestive. Such
images surely could not be used, for instance, to seduce chil-
dren. I agree. A better interpretation of “appears to
be . . . of ” is “virtually indistinguishable from”—an interpre-
tation that would not cover the examples respondents pro-
vide. Not only does the text of the statute comfortably bear
this narrowing interpretation, the interpretation comports
with the language that Congress repeatedly used in its find-
ings of fact. See, e. g., Congressional Finding (8), notes fol-
lowing 18 U. S. C. § 2251 (discussing how “visual depictions
produced wholly or in part by electronic, mechanical, or
other means, including by computer, which are virtually
indistinguishable to the unsuspecting viewer from photo-
graphic images of actual children” may whet the appetites of

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child molesters). See also id., Findings (5), (12). Finally,
to the extent that the phrase “appears to be . . . of ” is am-
biguous, the narrowing interpretation avoids constitutional
problems such as overbreadth and lack of narrow tailoring.
See Crowell v. Benson, 285 U. S. 22, 62 (1932).
Reading the statute only to bar images that are virtually
indistinguishable from actual children would not only assure
that the ban on virtual child pornography is narrowly tai-
lored, but would also assuage any fears that the “appears
to be . . . of a minor” language is vague. The narrow read-
ing greatly limits any risks from “ ‘discriminatory enforce-
ment.’ ” Reno v. American Civil Liberties Union, 521 U. S.
844, 872 (1997). Respondents maintain that the “virtually
indistinguishable from” language is also vague because it
begs the question: from whose perspective? This problem is
exaggerated. This Court has never required “mathematical
certainty” or “ ‘meticulous specificity’ ” from the language of
a statute. Grayned v. City of Rockford, 408 U. S. 104, 110
(1972).
The Court concludes that the CPPA’s ban on virtual child
pornography is overbroad. The basis for this holding is un-
clear. Although a content-based regulation may serve a
compelling state interest, and be as narrowly tailored as pos-
sible while substantially serving that interest, the regulation
may unintentionally ensnare speech that has serious literary,
artistic, political, or scientific value or that does not threaten
the harms sought to be combated by the Government. If
so, litigants may challenge the regulation on its face as over-
broad, but in doing so they bear the heavy burden of dem-
onstrating that the regulation forbids a substantial amount
of valuable or harmless speech. See Reno, supra, at 896
(O’Connor, J., concurring in judgment in part and dissenting
in part) (citing Broadrick, 413 U. S., at 615). Respondents
have not made such a demonstration. Respondents provide
no examples of films or other materials that are wholly com-
puter generated and contain images that “appea[r] to be . . .

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of minors” engaging in indecent conduct, but that have seri-
ous value or do not facilitate child abuse. Their overbreadth
challenge therefore fails.
III
Although in my view the CPPA’s ban on youthful adult
pornography appears to violate the First Amendment, the
ban on virtual child pornography does not. It is true that
both bans are authorized by the same text: The statute’s
definition of child pornography to include depictions that
“appea[r] to be” of children in sexually explicit poses. 18
U. S. C. § 2256(8)(B). Invalidating a statute due to over-
breadth, however, is an extreme remedy, one that should be
employed “sparingly and only as a last resort.” Broadrick,
supra, at 613. We have observed that “[i]t is not the usual
judicial practice, . . . nor do we consider it generally desir-
able, to proceed to an overbreadth issue unnecessarily.”
Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S.
469, 484–485 (1989).
Heeding this caution, I would strike the “appears to be”
provision only insofar as it is applied to the subset of cases
involving youthful adult pornography. This approach is
similar to that taken in United States v. Grace, 461 U. S.
171 (1983), which considered the constitutionality of a federal
statute that makes it unlawful to “parade, stand, or move in
processions or assemblages in the Supreme Court Building
or grounds, or to display therein any flag, banner, or device
designed or adapted to bring into public notice any party,
organization, or movement.” 40 U. S. C. § 13k (1994 ed.).
The term “Supreme Court . . . grounds” technically includes
the sidewalks surrounding the Court, but because sidewalks
have traditionally been considered a public forum, the Court
held the statute unconstitutional only when applied to
sidewalks.
Although 18 U. S. C. § 2256(8)(B) does not distinguish be-
tween youthful adult and virtual child pornography, the
CPPA elsewhere draws a line between these two classes of

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speech. The statute provides an affirmative defense for
those who produce, distribute, or receive pornographic im-
ages of individuals who are actually adults, § 2252A(c), but
not for those with pornographic images that are wholly com-
puter generated. This is not surprising given that the legis-
lative findings enacted by Congress contain no mention of
youthful adult pornography. Those findings focus explicitly
only on actual child pornography and virtual child pornogra-
phy. See, e. g., Finding (9), notes following § 2251 (“[T]he
danger to children who are seduced and molested with the
aid of child sex pictures is just as great when the child por-
nographer or child molester uses visual depictions of child
sexual activity produced wholly or in part by electronic, me-
chanical, or other means, including by computer, as when the
material consists of unretouched photographic images of ac-
tual children engaging in sexually explicit conduct”). Draw-
ing a line around, and striking just, the CPPA’s ban on youth-
ful adult pornography not only is consistent with Congress’
understanding of the categories of speech encompassed by
§ 2256(8)(B), but also preserves the CPPA’s prohibition of the
material that Congress found most dangerous to children.
In sum, I would strike down the CPPA’s ban on material
that “conveys the impression” that it contains actual child
pornography, but uphold the ban on pornographic depictions
that “appea[r] to be” of minors so long as it is not applied to
youthful adult pornography.
Chief Justice Rehnquist, with whom Justice Scalia
joins in part, dissenting.
I agree with Part II of Justice O’Connor’s opinion con-
curring in the judgment in part and dissenting in part.
Congress has a compelling interest in ensuring the ability to
enforce prohibitions of actual child pornography, and we
should defer to its findings that rapidly advancing technology
soon will make it all but impossible to do so. Turner Broad-
casting System, Inc. v. FCC, 520 U. S. 180, 195 (1997) (we

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268 ASHCROFT v. FREE SPEECH COALITION
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“ ‘accord substantial deference to the predictive judgments
of Congress’ ” in First Amendment cases).
I also agree with Justice O’Connor that serious First
Amendment concerns would arise were the Government
ever to prosecute someone for simple distribution or posses-
sion of a film with literary or artistic value, such as Traffic
or American Beauty. Ante, at 262–263 (opinion concurring
in judgment in part and dissenting in part). I write sepa-
rately, however, because the Child Pornography Prevention
Act of 1996 (CPPA), 18 U. S. C. § 2251 et seq., need not be
construed to reach such materials.
We normally do not strike down a statute on First Amend-
ment grounds “when a limiting construction has been or
could be placed on the challenged statute.” Broadrick v.
Oklahoma, 413 U. S. 601, 613 (1973). See, e. g., New York v.
Ferber, 458 U. S. 747, 769 (1982) (appreciating “the wide-
reaching effects of striking down a statute on its face”); Par-
ker v. Levy, 417 U. S. 733, 760 (1974) (“This Court has . . .
repeatedly expressed its reluctance to strike down a statute
on its face where there were a substantial number of sit-
uations to which it might be validly applied”). This case
should be treated no differently.
Other than computer-generated images that are virtually
indistinguishable from real children engaged in sexually ex-
plicit conduct, the CPPA can be limited so as not to reach
any material that was not already unprotected before the
CPPA. The CPPA’s definition of “sexually explicit conduct”
is quite explicit in this regard. It makes clear that the stat-
ute only reaches “visual depictions” of:
“[A]ctual or simulated . . . sexual intercourse, including
genital-genital, oral-genital, anal-genital, or oral-anal,
whether between persons of the same or opposite
sex; . . . bestiality; . . . masturbation; . . . sadistic or
masochistic abuse; or . . . lascivious exhibition of the gen-
itals or pubic area of any person.” 18 U. S. C. § 2256(2).

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The Court and Justice O’Connor suggest that this very
graphic definition reaches the depiction of youthful looking
adult actors engaged in suggestive sexual activity, presum-
ably because the definition extends to “simulated” inter-
course. Ante, at 247–248 (majority opinion); ante, at 263
(opinion concurring in judgment in part and dissenting in
part). Read as a whole, however, I think the definition
reaches only the sort of “hard core of child pornography”
that we found without protection in Ferber, supra, at 773–
774. So construed, the CPPA bans visual depictions of
youthful looking adult actors engaged in actual sexual activ-
ity; mere suggestions of sexual activity, such as youthful
looking adult actors squirming under a blanket, are more
akin to written descriptions than visual depictions, and thus
fall outside the purview of the statute.1
The reference to “simulated” has been part of the defini-
tion of “sexually explicit conduct” since the statute was first
passed. See Protection of Children Against Sexual Exploi-
tation Act of 1977, Pub. L. 95–225, 92 Stat. 7. But the inclu-
sion of “simulated” conduct, alongside “actual” conduct, does
not change the “hard core” nature of the image banned. The
reference to “simulated” conduct simply brings within the
statute’s reach depictions of hardcore pornography that are
“made to look genuine,” Webster’s Ninth New Collegiate
Dictionary 1099 (1983)—including the main target of the
CPPA, computer-generated images virtually indistinguish-
able from real children engaged in sexually explicit conduct.
Neither actual conduct nor simulated conduct, however, is
properly construed to reach depictions such as those in a film
portrayal of Romeo and Juliet, ante, at 247–248 (majority
opinion); ante, at 263 (O’Connor, J., concurring in judgment
1 Of course, even the narrow class of youthful looking adult images pro-
hibited under the CPPA is subject to an affirmative defense so long as
materials containing such images are not advertised or promoted as child
pornography. 18 U. S. C. § 2252A(c).

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in part and dissenting in part), which are far removed from
the hardcore pornographic depictions that Congress in-
tended to reach.
Indeed, we should be loath to construe a statute as ban-
ning film portrayals of Shakespearian tragedies, without
some indication—from text or legislative history—that such
a result was intended. In fact, Congress explicitly in-
structed that such a reading of the CPPA would be wholly
unwarranted. As the Court of Appeals for the First Circuit
has observed:
“[T]he legislative record, which makes plain that the
[CPPA] was intended to target only a narrow class of
images—visual depictions ‘which are virtually indistin-
guishable to unsuspecting viewers from unretouched
photographs of actual children engaging in identical
sexual conduct.’ ” United States v. Hilton, 167 F. 3d
61, 72 (1999) (quoting S. Rep. No. 104–358, pt. I, p. 7
(1996)).
Judge Ferguson similarly observed in his dissent in the
Court of Appeals in this case:
“From reading the legislative history, it becomes clear
that the CPPA merely extends the existing prohibi-
tions on ‘real’ child pornography to a narrow class of
computer-generated pictures easily mistaken for real
photographs of real children.” Free Speech Coalition
v. Reno, 198 F. 3d 1083, 1102 (CA9 1999).
See also S. Rep. No. 104–358, pt. IV(C), at 21 (“[The CPPA]
does not, and is not intended to, apply to a depiction
produced using adults engaging i[n] sexually explicit con-
duct, even where a depicted individual may appear to be a
minor” (emphasis in original)); id., pt. I, at 7 (“[The CPPA]
addresses the problem of ‘high-tech kiddie porn’ ”). We
have looked to legislative history to limit the scope of
child pornography statutes in the past, United States v.

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Rehnquist, C. J., dissenting
X-Citement Video, Inc., 513 U. S. 64, 73–77 (1994), and we
should do so here as well.2
This narrow reading of “sexually explicit conduct” not only
accords with the text of the CPPA and the intentions of Con-
gress; it is exactly how the phrase was understood prior to
the broadening gloss the Court gives it today. Indeed, had
“sexually explicit conduct” been thought to reach the sort of
material the Court says it does, then films such as Traffic
and American Beauty would not have been made the way
they were. Ante, at 247–248 (discussing these films’ por-
trayals of youthful looking adult actors engaged in sexually
suggestive conduct). Traffic won its Academy Award in
2001. American Beauty won its Academy Award in 2000.
But the CPPA has been on the books, and has been enforced,
since 1996. The chill felt by the Court, ante, at 244 (“[F]ew
legitimate movie producers . . . would risk distributing im-
ages in or near the uncertain reach of this law”), has appar-
ently never been felt by those who actually make movies.
To the extent the CPPA prohibits possession or distribu-
tion of materials that “convey the impression” of a child en-
gaged in sexually explicit conduct, that prohibition can and
should be limited to reach “the sordid business of pandering”
which lies outside the bounds of First Amendment protec-
tion. Ginzburg v. United States, 383 U. S. 463, 467 (1966);
e. g., id., at 472 (conduct that “deliberately emphasized the
sexually provocative aspects of the work, in order to catch
the salaciously disposed,” may lose First Amendment protec-
tion); United States v. Playboy Entertainment Group, Inc.,
529 U. S. 803, 831–832 (2000) (Scalia, J., dissenting) (collect-
ing cases). This is how the Government asks us to construe
the statute, Brief for Petitioners 18, and n. 3; Tr. of Oral Arg.
27, and it is the most plausible reading of the text, which
prohibits only materials “advertised, promoted, presented,
described, or distributed in such a manner that conveys the
2 Justice Scalia does not join this paragraph discussing the statute’s
legislative record.

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impression that the material is or contains a visual depiction
of a minor engaging in sexually explicit conduct.” 18
U. S. C. § 2256(8)(D) (emphasis added).
The First Amendment may protect the video shopowner
or film distributor who promotes material as “entertaining”
or “acclaimed” regardless of whether the material contains
depictions of youthful looking adult actors engaged in nonob-
scene but sexually suggestive conduct. The First Amend-
ment does not, however, protect the panderer. Thus, mate-
rials promoted as conveying the impression that they depict
actual minors engaged in sexually explicit conduct do not
escape regulation merely because they might warrant First
Amendment protection if promoted in a different manner.
See Ginzburg, supra, at 474–476; cf. Jacobellis v. Ohio, 378
U. S. 184, 201 (1964) (Warren, C. J., dissenting) (“In my opin-
ion, the use to which various materials are put—not just
the words and pictures themselves—must be considered in
determining whether or not the materials are obscene”).
I would construe “conveys the impression” as limited to the
panderer, which makes the statute entirely consistent with
Ginzburg and other cases.
The Court says that “conveys the impression” goes well
beyond Ginzburg to “prohibi[t] [the] possession of material
described, or pandered, as child pornography by someone
earlier in the distribution chain.” Ante, at 258. The
Court’s concern is that an individual who merely possesses
protected materials (such as videocassettes of Traffic or
American Beauty) might offend the CPPA regardless of
whether the individual actually intended to possess materi-
als containing unprotected images. Ante, at 248; see also
ante, at 263 (O’Connor, J., concurring in judgment in part
and dissenting in part) (“Individuals or businesses found to
possess just three such films have no defense to criminal lia-
bility under the CPPA”).
This concern is a legitimate one, but there is, again,
no need or reason to construe the statute this way. In

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X-Citement Video, supra, we faced a provision of the Protec-
tion of Children Against Sexual Exploitation Act of 1977, the
precursor to the CPPA, which lent itself much less than the
present statute to attributing a “knowingly” requirement to
the contents of the possessed visual depictions. We held
that such a requirement nonetheless applied, so that the Gov-
ernment would have to prove that a person charged with
possessing child pornography actually knew that the materi-
als contained depictions of real minors engaged in sexually
explicit conduct. 513 U. S., at 77–78. In light of this hold-
ing, and consistent with the narrow class of images the CPPA
is intended to prohibit, the CPPA can be construed to pro-
hibit only the knowing possession of materials actually con-
taining visual depictions of real minors engaged in sexually
explicit conduct, or computer-generated images virtually in-
distinguishable from real minors engaged in sexually explicit
conduct. The mere possession of materials containing only
suggestive depictions of youthful looking adult actors need
not be so included.
In sum, while potentially impermissible applications of
the CPPA may exist, I doubt that they would be “substantial
. . . in relation to the statute’s plainly legitimate sweep.”
Broadrick, 413 U. S., at 615. The aim of ensuring the en-
forceability of our Nation’s child pornography laws is a com-
pelling one. The CPPA is targeted to this aim by extending
the definition of child pornography to reach computer-
generated images that are virtually indistinguishable from
real children engaged in sexually explicit conduct. The
statute need not be read to do any more than precisely this,
which is not offensive to the First Amendment.
For these reasons, I would construe the CPPA in a manner
consistent with the First Amendment, reverse the Court of
Appeals’ judgment, and uphold the statute in its entirety.