The Law School Authority

Ashcroft v. FCC Case Brief

Summary of Ashcroft v. FCC (2002)

Virtual child porn by computer drawings & morphing adults into kids.  Held: This is ok.

a.       Under Ferber rationale—no support for banning this porn b/c no actual children used

(1)     But Ferber still permits prosecution for things that involve children.

(2)     Thus, if no child actors then no harm

b.      Govt also argues that the state also has an interest b/c it may excite pedophiles or give them the idea that this is permissible or enables pedophiles to convince kids that this is ok behavior

(1)     Kennedy: No: there are other ways to lure kids.

(a)     In order to allow this test, must pass the Brandenburg test (imminency of lawless behavior)

(2)     Also, no statistics to show that watching this leads to this behavior

(3)     Ct is skeptical of other claims of harm

c.       BALANCING TEST—falls on 1st Amendment liberty

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