[2] The case was brought against the U.S. government by the Free Speech Coalition, a "California trade association for the adult-entertainment industry", along with Bold Type, Inc., a "publisher of a book advocating the nudist lifestyle"; Jim Gingerich, who paints nudes; and Ron Raffaelli, a photographer who specialized in erotic images.

And in New York v. Ferber, 458 U.S. 747 (1982),[4] the Court held that the government could ban the distribution of child pornography to protect children from the harm inherent in making it.

The district court disagreed, adding that the overbreadth claim was specious as it was "highly unlikely" that any "adaptations of sexual works like Romeo and Juliet ... will be treated as 'criminal contraband'".

The Ninth Circuit reversed, reasoning that the government could not prohibit speech merely because of its tendency to persuade its viewers to engage in illegal activity.

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.

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."

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."

Ferber did not hold that child pornography is "by definition without value", but that it is illegal because of the harm that making and distributing it necessarily inflicts upon children.

Furthermore, such an affirmative defense is "incomplete on its own terms" because it "allows persons to be convicted in some instances where they can prove children were not exploited in the production."

Although pandering may be a relevant question in an obscenity prosecution, the "conveys the impression" prohibition forbade speech advertising depictions that were entirely lawful.

"Congress has a compelling interest in ensuring the ability to enforce prohibitions of actual child pornography, and we should defer to its findings that rapidly advancing technology soon will make it all but impossible to do so."

Rehnquist's dissenting opinion agreed that serious First Amendment concerns would arise if the government actually prosecuted, say, the producers of Traffic or American Beauty under CPPA.