In the case of Ashcroft v. Free Speech Coalition, the Supreme Court presented more arguments and reasons as to why online child pornography is prohibited. What this case failed to do is to define how far the government’s censorship can stretch. The controversial question lies in the phrasing from the COPA provisions where terms referring to virtual child pornography were struck out for being too broad (Mota, 2002).
This case has proven among the more interesting cases regarding first amendment rights on the internet. Unlike most rulings by the Supreme Court where the majority of states agree on the ruling, this case came down with most districts agreeing instead of dissenting. Many arguments have now been presented as to why even virtual child pornography is an issue. This is because of the idea that producing child pornography can lead to pedophile behaviors (Mirkin, 2009). Mirkin argues that distribution or possession of nude pictures of children or youths can cause adult viewers to develop desires to engage into sexual activities with children. Besides, child pornography can cause adults to commit sexual offenses such as rape with children due to the sexual desires activated into such adults by the nude pictures of children and youths. Mirkin states that all these expose children into danger of sexual abuse. He bases his argument of children protection from potential sexual abuse in Justice Kennedy’s observations in the Ashcroft v. Free Speech Coalition case that sexual abuse of a child is a most serious crime and that congress has passed laws to protect children from sexual abuse (Mota, 2002). Since even virtual child pornography causes the aforementioned pedophilia behaviors, then its production and distribution should also be prohibited.
Additional arguments against production of virtual child pornography include the idea that arrested felons will claim that they mistook real images for virtual images, resulting in criminals being set free (Hudson, 2004). Justice Thomas, a concurring judge in the Free Speech Coalition case asserted that if virtual child pornography was allowed, people who possessed and distributed child pornography would escape prosecution by claiming that real child pornography is virtual child pornography. This is because, in the current age of advanced computer technology, it is hard to distinguish real and virtual images. Therefore, allowing production of virtual child pornography would create a window for the pornographers as well as distributers of child pornography to continue using real children in pornography. Generally, the arguments are reasonable, but do not yet appear credible enough to the court.
Those in agreement with the ruling have one simple and yet very compelling argument. Simply stated, the first amendment is sacred to this country, so if Congress wants to limit this right it must be done with very specific drafting (Mota, 2002). Justice Rehnquist in the Ashcroft v. Free Speech Coalition case was of the opinion that the CPPA statute did not require the government to amend the First Amendment in order prosecute the producers of films such as American Beauty or Traffic. This is because the CPPA banned depiction of children engaging in sexual activities but do not ban mere suggestions of children engaging in sexual acts (Quayle & Jones, 2011). Furthermore, CPPA outlaws production and distribution of virtual children images indistinguishable from real images of children engaging in sexual acts. This is exactly the point and the one thing that congress has still failed to acknowledge.