The First Amendment provides that "Congress shall make no law... abridging the freedom of speech". The Court opined that imposing a criminal sanction on protected speech is a "stark example of speech suppression", but at the same time, that sexual abuse of children "is a most serious crime and an act repugnant to the moral instincts of a decent people." "Congress may pass valid laws to protect children from abuse, and it has." The great difficulty with the two provisions of the CPPA at issue in this case was that they included categories of speech other than obscenity and child pornography, and thus were overbroad.
The Court concluded that the "CPPA prohibits speech despite its serious literary, artistic, political, or scientific value." In particular, it prohibits the visual depiction of teenagers engaged in sexual activity, a "fact of modern society and has been a theme in art and literature throughout the ages." Such depictions include performances of Romeo and Juliet, by William Shakespeare; the 1996 film William Shakespeare's Romeo + Juliet, directed by Baz Luhrmann; and the Academy Award winning movies Traffic and American Beauty. "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. This is inconsistent with an essential First Amendment rule: The artistic merit of a work does not depend on the presence of a single explicit scene."
But speech prohibited by the CPPA "records no crime and creates no victims by its production."
The First Amendment draws a distinction between words and deeds, and does not tolerate banning of mere words simply because those words could lead to bad deeds. Although the CPPA's objective was to prohibit illegal conduct, it went well beyond that goal by restricting speech available to law-abiding adults.
