Ct wants to shut down national market Low FOS value High social harm Social Value low – Ct still must define porn” “child Statutes MUST be: Specific Defining what type of speech Who is a minor To give notice O’Connor’s Concurrence: If there is a case that has serious SV Ct will address later – Brennan concurrence: If someone can show SV it is protected Osborne v. Ohio Facts: private possession of child porn (does Stanley v. GA extend to child porn) Gov’t can criminalize private possession of child porn Rule: Stanley does not extend It is about protecting the kids - Ashcroft II Ashcroft v. The Free Speech Coalition Facts: Child Pornography Prevention Act of 1996 ban on virtual child porn (CSI – or youthful looking adults) Unconstitutional substantially overbroad Reconciling with Ferber Outside the scope of Ferber - There is no injury to kids Reconciling with Miller Need a statute tied to Miller test to keep it from running against overbreadth; outside the of obscenity If statute tied to Miller probably constitutional SS Analysis: CSI Congress concerned use of virtual porn will inhibit trying actual – criminals using real kids But Ct doesn’t allow suppression of protected speech to get at unprotected speech NT - NO 2 options: pass stronger laws against pedophiles or parental safeguards O’Connor joined in part, dissented in part – Concurs - Statute unconstitutional when restricts speech youthful looking adults Dissent Constitutional if NT when applied to CGIs because hard to – prosecute US v. Williams statute that made it a crime to advertise, promote, distribute, etc. child porn; basically deals with virtual child porn that people believe to be actual porn; Fraud & solicitation
Ct wants to shut down national market Low FOS value High social harm Social Value – low Ct still must define “child porn” Statutes MUST be: Specific Defining what type of speech Who is a minor To give notice O’Connor’s Concurrence: If there is a case that has serious SV – Ct will address later Brennan concurrence: If someone can show SV it is protected Osborne v. Ohio Facts: private possession of child porn (does Stanley v. GA extend to child porn) Rule: Gov’t can criminalize private possession of child porn Stanley does not extend It is about protecting the kids Ashcroft v. The Free Speech Coalition - Ashcroft II Facts: Child Pornography Prevention Act of 1996 – ban on virtual child porn (CSI or youthful looking adults) Unconstitutional substantially overbroad Reconciling with Ferber Outside the scope of Ferber - There is no injury to kids Reconciling with Miller Need a statute tied to Miller test to keep it from running against overbreadth; outside the of obscenity If statute tied to Miller probably constitutional SS Analysis: CSI – Congress concerned use of virtual porn will inhibit trying actual criminals using real kids But Ct doesn’t allow suppression of protected speech to get at unprotected speech NT - NO 2 options: pass stronger laws against pedophiles or parental safeguards O’Connor – joined in part, dissented in part Concurs - Statute unconstitutional when restricts speech youthful looking adults Dissent – Constitutional if NT when applied to CGIs because hard to prosecute US v. Williams statute that made it a crime to advertise, promote, distribute, etc. child porn; basically deals with virtual child porn that people believe to be actual porn; Fraud & solicitation
Con-Law-II-Nowlin-KK.docx