In
Free Speech Coalition the Supreme Court ruled that two of the definitions of child pornography adopted by the Child Pornography Prevention Act of 1996(Act),
18 U.S.C. § 2251, et seq., were overbroad and hence violated the First Amendment on their face.
See 535 U.S. at 258, 122 S.Ct. 1389. The first, § 2256(8)(B), defined child pornography as a “visual depiction [that] is, or appears to be, of a minor engaging in sexually explicit conduct.”
18 U.S.C. § 2256(8)(B) (1996) (invalidated 2002, amended 2003). The second,
§ 2256(8)(D), defined child pornography as a “visual depiction [that] is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.”
18 U.S.C. § 2256(8)(D) (1996) (invalidated 2002, amended 2003). The “appears to be” and “in such a manner that” language, the Supreme Court held, reached constitutionally protected speech because these phrases did not restrict the definition of child pornography to obscene material or to material that was itself the product of sexual abuse.
See Free Speech Coal., 535 U.S. at 240, 251, 122 S.Ct. 1389 (citing
Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), which defines obscenity, and
New York v. Ferber, 458 U.S. 747, 761, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), which holds that states may constitutionally prohibit the creation or promotion of child pornography not meeting the
Miller standard).