Ashcroft's Pounded By Justices, Judges

W A S H I N G T O N, April 19 -- Attorney General John Ashcroft must really be wishing he could get more of this administration's judicial nominees confirmed, after the pounding he's taken from various justices and judges this week.

First came the Supreme Court's ruling (the case was notably shorthanded Ashcroft v. Free Speech) knocking down a statute that sought to criminalize computer-generated as well as actual child pornography. The Child Pornography Prevention Act (CPPA) would have prohibited an image that "appears to be" or "conveys the impression" of a child engaging in sexual acts.

But in the 6-3 ruling written by Justice Anthony Kennedy, the court ruled that the law is too broad to pass constitutional muster.

"The Constitution gives significant protection from overbroad laws that chill speech within the First Amendment's vast and privileged sphere. Under this principle, the CPPA is unconstitutional on its face if it prohibits a substantial amount of protected expression."

Kennedy noted that the CPPA carries severe penalties (up to 15 years for a first offense) and could prohibit speech "despite its serious literary, artistic, political, or scientific value." The law prohibits sexual images of individuals who appear to be younger than 18 — but, he noted, that's higher than the legal age for marriage in many states.

Kennedy also pointed out that William Shakespeare "created the most famous pair of teenage lovers, one of whom is just 13 years of age. See Romeo and Juliet, act I, sc. 2, l. 9."

The justice also mentioned recent films (carefully noting which had been nominated for, and which had won, Oscars) like Traffic and American Beauty which also depict sex between minors.

"Whether or not the films we mention violate the CPPA, they explore themes within the wide sweep of the statute's prohibitions. If these films, or hundreds of others of lesser note that explore those subjects, contain a single graphic depiction of sexual activity within the statutory definition, the possessor of the film would be subject to severe punishment without inquiry into the work's redeeming value."

To the government's argument that pedophiles might use virtual child porn to seduce children, Kennedy replied: "There are many things innocent in themselves, ... such as cartoons, video games, and candy, that might be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused."

And it probably poured salt into the attorney general's wound that his old buddy Justice Clarence Thomas concurred in the majority opinion. What was surprising, and quite unusual, was that Ashcroft decided within hours to make a statement responding to the court's opinion. And not just release a piece of paper, but actually to appear before cameras.