996 F.3d 821
7th Cir.2021Background:
- In 2016–2017 Timothy Fredrickson (27) communicated online with S.B. (16); he asked her to record and send sexually explicit videos, and he saved at least 15 such videos on his phone.
- Fredrickson was indicted under 18 U.S.C. § 2251(a) for inducing a minor to produce visual depictions of sexually explicit conduct.
- He moved to dismiss, arguing the First Amendment protects the videos because the depicted conduct could lawfully have been viewed in Illinois and Iowa.
- The district court denied the motion; a jury convicted Fredrickson and the court sentenced him to 200 months’ imprisonment.
- On appeal Fredrickson raised a facial overbreadth challenge to § 2251(a) under the First Amendment.
- The Seventh Circuit affirmed, holding that child pornography is categorically unprotected; precedents distinguishing virtual from real child pornography do not help Fredrickson.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 18 U.S.C. § 2251(a) is facially overbroad under the First Amendment | §2251(a) criminalizes protected speech because the videos depict conduct Fredrickson could lawfully have viewed in the states involved | Child pornography is categorically unprotected (Ferber); state law or alleged lawful viewing does not create First Amendment protection | Affirmed: §2251(a) is constitutional; Ferber bars First Amendment protection for real child pornography |
Key Cases Cited
- New York v. Ferber, 458 U.S. 747 (child pornography is a category of unprotected speech)
- Ashcroft v. Free Speech Coalition, 535 U.S. 234 (virtual child pornography protected where no causal link to real abuse)
- United States v. Stevens, 559 U.S. 460 (refused to create new unprotected category for depictions of animal cruelty; distinguished Ferber)
- United States v. Williams, 553 U.S. 285 (overbreadth doctrine standard for criminal statutes affecting speech)
- Osborne v. Ohio, 495 U.S. 103 (upheld criminalization of possession of child pornography)
- Chaplinsky v. New Hampshire, 315 U.S. 568 (certain narrow categories of speech historically unprotected)