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2 Appalachian J.L. 61 (2003)
Ashcroft v. Free Speech Coalition

handle is hein.journals/appalwj2 and id is 69 raw text is: ASHCROFT V. FREE SPEECH COALITION

Jeffrey M. Kesslert
In 1964, Justice Stewart responded to the question what is pornog-
raphy? with the now famous phrase I shall not today attempt        to
define [it,] [b]ut I know it when I see it .   l Unfortunately, at the
dawn of the twenty-first century, computer graphics technology has
progressed to the point that the question does this image depict a child, or
even an actual person? can no longer be answered with a simple I know
it when I see it. Congress met this challenge by passing the Child Por-
nography Prevention Act of 1996 (CPPA),2 outlawing images that looked
like child pornography, regardless of whether the images actually showed
children, depicted youthful-looking adults, or were, in fact, completely
computer generated. Although the decision in Ashcroft v. Free Speech Coa-
lition3 to overturn portions of the CPPA as unconstitutional may be a dis-
couraging setback in the battle to protect children, it stood upon the most
important, albeit painful, principles of the First Amendment, which pro-
tects even the most unpopular speech. Congress designed previous child
pornography statutes to protect the children used in its production. Here,
where the law not only criminalizes injury to children, but also the crea-
tion of fictional images, thoughts themselves are now the crime. However
laudable the government's intentions, the government cannot constitu-
tionally premise legislation on the desirability of controlling a person's pri-
vate thoughts.4 Even though such a holding might be unpopular, this case
serves as a poignant reminder that 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.'
I. OVERVIEW OF FEDERAL CHILD PORNOGRAPHY LAW
A.   The First Amendment and Obscene Materials
The First Amendment to the United States Constitution states,
Congress shall make no law.   abridging the freedom of speech. It has,
however, been a very long time since Justice Black famously stated that the
t J.D. Candidate, Appalachian School of Law, 2004; B.A., Biology, Roanoke College,
Salem, Virginia.
1. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
2. 18 U.S.C. § 2251 et seq. (1996).
3. 122 S. Ct. 1389 (2002).
4. Id. at 1403 (quoting Stanley v. Ga., 394 U.S. 557, 566 (1969)).
5. Id.

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