Ashcroft v. Free Speech Coalition, 535 U.S. 234, 38 (2002)

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

Rehnquist, C. J., dissenting

X-Citement Video, Inc., 513 U. S. 64, 73-77 (1994), and we should do so here as well.2

This narrow reading of "sexually explicit conduct" not only accords with the text of the CPPA and the intentions of Congress; it is exactly how the phrase was understood prior to the broadening gloss the Court gives it today. Indeed, had "sexually explicit conduct" been thought to reach the sort of material the Court says it does, then films such as Traffic and American Beauty would not have been made the way they were. Ante, at 247-248 (discussing these films' portrayals of youthful looking adult actors engaged in sexually suggestive conduct). Traffic won its Academy Award in 2001. American Beauty won its Academy Award in 2000. But the CPPA has been on the books, and has been enforced, since 1996. The chill felt by the Court, ante, at 244 ("[F]ew legitimate movie producers . . . would risk distributing images in or near the uncertain reach of this law"), has apparently never been felt by those who actually make movies.

To the extent the CPPA prohibits possession or distribution of materials that "convey the impression" of a child engaged in sexually explicit conduct, that prohibition can and should be limited to reach "the sordid business of pandering" which lies outside the bounds of First Amendment protection. Ginzburg v. United States, 383 U. S. 463, 467 (1966); e. g., id., at 472 (conduct that "deliberately emphasized the sexually provocative aspects of the work, in order to catch the salaciously disposed," may lose First Amendment protection); United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 831-832 (2000) (Scalia, J., dissenting) (collecting cases). This is how the Government asks us to construe the statute, Brief for Petitioners 18, and n. 3; Tr. of Oral Arg. 27, and it is the most plausible reading of the text, which prohibits only materials "advertised, promoted, presented, described, or distributed in such a manner that conveys the

2 Justice Scalia does not join this paragraph discussing the statute's legislative record.

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