In 2002, the court struck down parts of the Child Pornography Protection Act that banned images that appeared to be explicit depictions of children, even if they were actually pictures of adults or computer-generated images. Banning images in which there are no real children, the court held, violates the First Amendment.
After that ruling, Congress passed a new law with its own problems. One provision punished anyone who “promotes” material in a manner “intended to cause another to believe” it is child pornography. That, once again, sweeps in fake child pornography ”” which is just what the court in 2002 said must be avoided.
This time, the court upheld the law by a 7-to-2 vote. That creates a bizarre contradiction. Fake child pornography is protected, but marketing fake child pornography is not. As Justice David Souter noted in dissent, it makes no sense to criminalize proposing to sell items that are themselves constitutionally protected.