The Free Speech Coalition, a US trade association representing the pornography industry, had challenged the law which expanded a long-standing ban on child porn to prohibit any image that “appears to be” or “conveys the impression” of someone under the age of 18 engaged in sexually explicit conduct. The law targeted computer technologies that can be used to alter an innocent picture of a child into a depiction of a child engaged in sex.
The Free Speech Coalition said it supports a ban on child porn, but argued that the 1996 Act could ban non-obscene sex scenes in respected films. In a 6-3 split decision, the Supreme Court agreed, expressing concern that the government might prosecute someone for simple distribution or possession of a film with literary or artistic value, such as Academy Award winning movies “Traffic” and “American Beauty.”
Jan LaRue, senior director of Legal Studies for Family Research Council, commented:
"The Court's speculation about movies like these and paintings being prosecuted is abject nonsense. Such films do not contain the kind of conduct prohibited by the statute, and even if they did, they aren't pandered as child pornography. Congress made clear that the law should not be construed to apply to such material. All of the other circuit courts understood that. All the Court needed to do is determine the reach of the statute and exclude the kinds of images to which it could not apply. That's the Court's job and by failing to do it, they've failed children and left them vulnerable to sexual predators."
LaRue concluded: “That the Supreme Court of the United States can entertain the notion that virtual images of children being sexually violated has 'value' that needs protection is an abomination.”
Mark Kernes, senior editor of Adult Video News Magazine, said:
"The most important point is that the Court has now drawn a very bright line between young looking adults and actual minors […]. Child pornography is actually child sexual abuse, and that is not what people in the adult entertainment industry do or support. Our industry fought the fight, but everyone in the entertainment industry and the public are the real winners."
Shortly after the decision, US Attorney General John Ashcroft, who defended the appeal, said that he is now committed to working with Congress to prepare new laws against child porn.
The Supreme Court is still considering another case involving a 1998 law - the Child Online Protection Act – which makes it a crime to knowingly place objectionable material where a child could find it on the internet. The Court’s decision is expected at any time.