Ashcroft v. Free Speech Coalition, 535 U.S. 234, 28 (2002)

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Cite as: 535 U. S. 234 (2002)

Opinion of O'Connor, J.

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 prohibition in its entirety. The "appears to be . . . of a minor" language in § 2256(8)(B) covers two categories of speech: pornographic images of adults that look like children ("youthful adult pornography") and pornographic images of children created wholly on a computer, without using any actual children ("virtual child pornography"). The Court concludes, correctly, that the CPPA's ban on youthful adult pornography is overbroad. In my view, however, respondents fail to present sufficient evidence to demonstrate that the ban on virtual child pornography is overbroad. Because invalidation 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 minors only insofar as it is applied to the class of youthful adult pornography.

I

Respondents assert that the CPPA's prohibitions of youthful adult pornography, virtual child pornography, and material 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 disagrees with these specific contentions, but also requests that

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