Lead Opinion
Opinion by Judge MOLLOY; Dissent by Judge FERGUSON.
I.
The question presented in this case is whether Congress may constitutionally proscribe as child pornography computer images that do not involve the use of real children in their production or dissemination. We hold that the First Amendment prohibits Congress from enacting a statute that makes criminal the generation of images of fictitious children engaged in imaginary but explicit sexual conduct.
II.
In this case, the district court found that the Child Pornography Prevention Act of 1996 (“CPPA” or the “Act”) was content-neutral, was not unconstitutionally vague or overbroad, and did not constitute an improper prior restraint of speech. The district court also found that the Child Pornography Prevention Act’s affirmative defense did not impermissibly shift the burden of proof to a defendant by virtue of an unconstitutional presumption.
While we agree that the plaintiffs have standing to bring this case and that the Act is not an improper prior restraint of speech, the balance of the district court’s analysis does not comport with what we believe is required by the Constitution. We find that the phrases “appears to be” a minor, and “convey[s] the impression” that the depiction portrays a minor, are vague and overbroad and thus do not meet the requirements of the First Amendment. Consequently we hold that whilе these two provisions of the Act do not pass constitutional muster, the balance of the Child Pornography Prevention Act is constitutional when the two phrases are stricken. Whether the statutory affirmative defense is constitutional is a question that we leave for resolution in a different case.
A.
The appellants consist of a group that refers to itself as “The Free Speech Coalition.” The Free Speech Coalition is a trade association of businesses involved in the production and distribution of “adult-oriented materials.” Bold Type, Inc. is a publisher of a book “dedicated to the education and expression of the ideals and philosophy associated with nudism;” Jim Gingerich is a New York artist whose paintings include large-scale nudes; and Ron Raffaelli is a professional photographer whose works include nude and erotic photographs.
The Free Speech Coalition sought declaratory and injunctive relief by a pre-enforcement challenge to certain provisions of the Child Pornography Prevention Act of 1996. The complaint was filed in the Northern District of California. Both parties moved for summary judgment. The district court determined the CPPA was constitutional and granted the government’s motion for summary judgment. See The Free Speech Coalition v. Reno, No. C 97-0281 VSC,
In this appeal, Free Speech argues the district court was mistaken in its determination that the legislation is content neutral. They also argue that the district court was wrong to hold that the Act is not unconstitutionally vague. The argument is that where the statute fails to define “appears to be” and “conveys the impression,” it is so vague a person of ordinary intelligence cannot understand what is prohibited. Free Speech also questions the district court’s holding that the affirmative defense provided in the Act is constitutional. Finally, Free Speech appeals the lower court’s determination that the Act does not impose a prior restraint on protected speech and that it does not create a permanent chill on protected expression.
B.
Child pornography is a social concern that has evaded repeated attempts to stamp it out. State legislatures and Congress have vigorously tried to investigate and enact laws to provide a basis to prosecute those persons involved in the creation, distribution, and possession of sexually explicit materials made by or through the exploitation of children. Our concern is with the most reсent federal law enacted as part of the effort to rid society of the exploitation of children for sexual gratification, the Child Pornography Prevention Act of 1996.
1.
The original federal legislation specifically prohibiting the sexual exploitation of children has been amended several times since it was enacted as the Protection of Children Against Sexual Exploitation Act of 1977. See Pub.L. No. 95-225, 92 Stat. 7 (1977) (codified as amended at 18 U.S.C. §§ 2251-2253). The conduct prohibited by this law criminalized using a minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct with the knowledge that it was or would be transported in interstate or foreign commerce. See id. Visual depiction was defined as including undeveloped film. See United States v. Smith,
The Protection of Children Against Sexual Exploitation Act was enacted based upon congressional findings that child pornography and prostitution were highly organized, highly profitable, and exploited countless numbers of real children in its production. See New York v. Ferber,
2.
The Protection of Children Against Sexual Exploitation Act had its problems. According to the Final Report of the Attorney General’s Commission on Pornography, only one person was convicted under the Act’s production prohibition. See Attorney General’s Comm’n On Pornography, Final Report 604 (1986) (hereinafter “AG Report”). As a consequence of the law’s deficiencies and the Supreme Court’s ruling in Ferber, Congress enacted the Child Protection Act of 1984. See Pub.L. No. 98-292, 98 Stat. 204 (1984) (codified as
When the Child Protection Act of 1984 was enacted Congress recognized that a great deal of pornographic trafficking involving children was not for profit. Thus, the 1984 law also did away with the requirement that the production or distribution of the material be for the purposе of sale. See id. §§ 4, 5. The 1984 law also picked up on a key phrase from Ferber, where the Supreme Court discussed limits on the classification of child pornography, stating that the “nature of the harm to be combated requires that the state offense be limited to works that visually depict sexual conduct....” Ferber,
3.
In 1986, Congress amended the law once again. The Child Sexual Abuse and Pornography Act of 1986, Public Law No. 99-628, § 2, 100 Stat. 3510 (1986) (codified as amended at 18 U.S.C. § 2251), banned the production and use of advertisements for child pornography. Another statutory change made wrongdoers subject to liability for personal injuries to children resulting from the production of child pornography. See Child Abuse Victims’ Rights Act of 1986, Pub.L. No. 99-500, 100 Stat. 1783 (1986) (codified as amended at 18 U.S.C. § 2255). By passing these Acts, Congress continued its quest to end “kiddie porn.”
4.
The continuing effort to marshal a means of stopping child pornography resulted in the passage of the Child Protection and Obscenity Enforcement Act of 1988. See Pub.L. No. 100-690, 102 Stat. 4181 (1988) (codified as amended at 18 U.S.C. §§ 2251A-2252). This law made it unlawful to use a computеr to transport, distribute, or receive child pornography. See id. § 7511. It also added a new section to the criminal law that prohibited the buying, selling, or otherwise obtaining of temporary custody or control of children for the purpose of producing child pornography. See id. § 7512. The new law required record keeping and imposed disclosure requirements on the producers of certain sexually explicit matter. See id. § 7513.
5.
In 1990 the Supreme Court decided Osborne v. Ohio,
Throughout the legislative history, Congress has defined the problem of child pornography in terms of real children. Up until 1996 the actual particiрation and abuse of children in the production or dissemination or pornography involving minors was the sine qua non of the regulating scheme. The legislation tracked the decisions of the Supreme Court as well as the swift development of technology and its nearly infinite possibilities. The statutory odyssey was from adult pornography secured or not by the First Amendment, to child pornography permitted or not, to pseudo child pornography protected or not, until in 1996 the law was amended to prohibit virtual child pornography. The 1996 law, the law at issue here, changed course. The regulation direction shifted from defining child pornography in terms of the harm inflicted upon real children to a determination that child pornography was evil in and of itself, whether it involved real children or not. This shift forms the basis of the constitutional challenge Free Speech makes here.
6.
The Child Pornography Prevention Act of 1996 expanded the law to combat the use of computer technology to produce pornography containing images that look like children. The new law sought to stifle the use of technology for evil purposes. This of course was a marked change in the criminal regulatory scheme. Congress had always acted to prevent harm to real сhildren. In the new law, Congress shifted the paradigm from the illegality of child pornography that involved the use of real children in its creation to forbid a “visual depiction” that “is, or appears to be, of a minor engaging in sexually explicit conduct.” See 18 U.S.C.A. § 2256(8)(B) (West Supp.1999).
The premise behind the Child Pornography Prevention Act is the asserted impact of such images on the children who may view them. The law is also based on the notion that child pornography, real as well as virtual, increases the activities of child molesters and pedophiles.
7.
18 U.S.C. § 2256(8)
Because we hold the language at issue is unconstitutional, we do not consider the challenge to the affirmative defense in 18 U.S.C. § 2252A(c).
III.
Standing is a question of law reviewed de novo. See Johns v. County of San Diego,
The record shows the individuals and businesses within The Free Speech Coalition withheld or stopped distributing products out of fear that they would be prosecuted for such behavior. The district court was correct in finding the facts presented here are sufficient to confer standing. The government does not question the district court’s standing decision.
IV.
A.
A challenge to the constitutionality of a federal statute is reviewed de novo. See Crawford v. Lungren,
1.
The district court held that the contested provisions of the Child Pornography Prevention Act are content-neutral regulations. See The Free Speech Coalition,
We do not agree. In United States v. Hilton,
The CPPA prohibits any sexually explicit depiction that “appears to be” of a minor or that is distributed or advertised in such a manner as to “convey the impression” that the depiction portrays a minor. Thus, the CPPA distinguishes favored from disfavored speech on the basis of the content of that speeсh. See Crawford,
Part of the rationale for the Act is the congressional determination that “a major part of the threat to children posed by child pornography is its effects on the viewers of such material[.]” S.Rep. No. 104-358, at 17 (1996). The Congress surmised that “the effect is the same whether the child pornography consists of photographic depictions of actual children or visual depictions produced wholly or in part by computer.” Id. One Senator referred to the notion that “[cjomputer imaging technology has given child pornographers a new way to create ‘synthetic’ child pornography which is virtually indistinguishable from ‘traditional’ child pornography.” Id. at 26. This belief was then carried to its logical content-based conclusion that “ ‘synthetic’ child pornography which looks real to the naked eye will have the same effect upon viewers as ‘traditional’ child pornography.” Id.
The government contends the district court was right in finding that the law is content-neutral. The government argues that because Congress enacted the CPPA to address the secondary effects of speech appearing to depict children’s sexual activity, this secondary-effects justification for the CPPA hinges upon the effect of pornography seemingly involving children uрon its viewers.
When a statute restricts speech by its content, it is presumptively unconstitutional. See Crawford,
The CPPA fails both tests for substantive neutrality: it expressly aims to curb a particular category of expression (child pornography) by singling out that type of expression based on its content and banning it. Blanket suppression of an entire type of speech is by its very nature a content-discriminating act. Furthermore, Congress has not kept secret that one of its motivating reasons for enacting the CPPA was to counter the primary effect child pornography has on those who view it.
2.
Under the circumstances, if the CPPA is to survive the constitutional inquiry the government must establish a compelling interest that is served by the statute, and it must show that the CPPA is narrowly tailored to fulfill that interest. See Crawford,
The district court found that even if no children are involved in the production of such materials the devastating secondary effect that sexually explicit materials involving the images of children have on society, and on the well being of children, merits the regulation of such images. See The Free Speech Coalition,
There are three compelling interests put forward when instituting efforts to curb child pornography using images of actual children. The first interest is that child pornography requires the participation of actual children in sexually explicit situations to create the images. The second interest stems from the belief that dissemination of such pornographic images may encourage more sexual abuse of children because it whets the appetite of pedo
The Supreme Court has required state statutes criminalizing child pornography to limit the offense to “works that visually depict explicit sexual conduct by children below a specified age.” Ferber,
The language of the statute questioned here can criminalize the use of fictional images that involve no human being, whether that fictional person is over the statutory age and looks younger, or indeed, a fictional person under the prohibited age. Images that are, or can be, entirely the product of the mind are criminalized. The CPPA’s definition of child pornography extends to drawings or images that “appear” to be minors or visual depictions that “convey” the impression that a minor is engaging in sexually explicit conduct, whether an actual minor is involved or not. The constitutionality of this definition is not supported by existing case law.
The rationale articulated in Ferber and the constitutional permissibility of regulating the category of child pornography as a separate class is not justified by consideration of the effects such images have on others, even if those effects exist. Instead the focus of analysis is on the harm to the children actually used in the production of the materials.
Ferber considered the possibility of simulations of sexually explicit acts involving non-recognizable minors and implicitly found them to be constitutionally protected. See id. at 763,
As the Seventh Circuit noted, however, the unhappy effects of pornography depend on mental intermediation. See id. This is particularly so when the images are not of real human beings, but are representations of a loathsome mind reduced to virtual reality by the technology of graphic computer art. Further,
Sexual responses often are unthinking responses, and the association of sexual arousal with the subordination of women therefore may have a substantial effect. But almost all cultural stimuli provoke unconscious responses.... If the fact that speech plays a role in a process of conditioning were enough to permit governmental regulation, that would be the end of freedom of speech.
Id. at 330.
By the same token, any victimization of children that may arise from pedophiles’ sexual responses to pornography apparently depicting children engaging in explicit sexual activity is not a sufficiently compelling justification for CPPA’s speech restrictions. This is so because to hold otherwise enables the criminalization of foul figments of creative technology that do not involve any human victim in their creation or in their presentation. Cf. Jacobson v. United States,
The critical ingredient of our analysis is the relationship between the dissemination of fabricated images of child pornography and additional acts of sexual abuse. Factual studies that establish the link between computer-generated child pornography and the subsequent sexual abuse of children apparently do not yet exist. See Ronald W. Adelman, The Constitutionality of Congressional Efforts to Ban Computer-Generated Child Pornography: A First Amendment Assessment of S. 1237, 14 J. Marshall J. Computer & Info. L. 483, 488, 490 (1996). The legislative justification for the proposition was based upon the Final Report of the Attorney General’s Commission on Pornography, a report that predates the existing technology. See id. at 490. The Final Report emphasized the victimization of real children by adult dis
By criminalizing all visual depictions that “appear to be” or “convey the impression” of child pornography, even where no child is ever used or harmed in its production, Congress has outlawed the type of depictions explicitly protected by the Supreme Court’s interpretation of the First Amendment. Because the 1996 Act attempts to criminalize disavowed impulses of the mind, manifested in illicit creative acts, we determine that censorship through the enactment of criminal laws intended to control an evil idea cannot satisfy the constitutional requirements of the First Amendment.
Our determination is not to suggest that anyone condones the implicit or explicit harmful secondary effects of child pornography. Rather it is a determination to measure the statute by First Amendment standards articulated by the Supreme Court. To accept the secondary effects argument as the gauge against which the statute must be measured requires a re
In short, we find the articulated compelling state interest cannot justify the criminal proscriрtion when no actual children are involved in the illicit images either by production or depiction. Because we find that Congress has not provided a compelling interest, we do not address the “narrow tailoring” requirement.
3.
The district court found the CPPA is not unconstitutionally vague as it gives sufficient guidance to a person of reasonable intelligence as to what it prohibits. See The Free Speech Coalition,
A statute is void for vagueness if it fails to “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary or discriminatory enforcement.” Kolender v. Lawson,
The CPPA’s criminalizing of material that “appears to be a minor” and “convey[s] the impression” that the material is a minor engaged in explicit sexual activity, is void for vagueness. It does not “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited,” and it fails to provide explicit standards for those who must apply it, “with the attendant dangers of arbitrary and discriminatory application.” Grayned v. City of Rockford,
The two phrases in question are highly subjective. There is no explicit standard as to what the phrases mean. The phrases provide no measure to guide an ordinarily intelligent person about prohibited conduct and any such person could not be reasonably certain about whose perspective defines the appearance of a minor, or whose impression that a minor is involved leads to criminal prosecution.
In the same light, the absence of definitions for these key phrases in the CPPA allows law enforcement officials to exercise their discretion, subjectively, about what “appears to be” or what “conveys the imprеssion” of prohibited material. Thus, the vagueness of the statute’s key phrases regarding computer images permits enforcement in an arbitrary and discriminatory fashion. Cf. City of Chicago v. Morales, — U.S. —, —,
4.
The district court held that the CPPA is not overbroad because it prohibits only those works necessary to prevent the secondary pernicious effects of child
Although overbreadth must “be ‘substantial’ before the statute involved will be invalidated on its face[,]” Ferber,
Congress may serve its legitimate purpose in protecting children from abuse by prohibiting pornography actually involving minors. The Senate considered the constitutional impediment discussed here but disagreed with the assertion that it could not prohibit visual depictions that “appear to be” of minors engaging in sexually explicit conduct when the depictions were produced without using actual children. See S.Rep. No. 104-358, at 21 (1996). The Senate reasoned that advances in technology distinguished the Ferber Court’s holding because in 1982 when Ferber was decided “the technology to produce visual depictions of child sexual activity indistinguishable from unretouched photographs of actual children engaging in ‘live performances’ did not exist.” Id.
The danger with this analysis is that it suggests that the more realistic an imaginary creation is, the less protection it is entitled to under the First Amendment. This is not because of any harm caused in its creation, rather it is because of the consequences of its purported reality. Yet, the Supreme Court has restricted the regulation of pornographic material involving minors because of the harm caused by its creation, not necessarily because of the consequences of its creation. The government’s interest in prohibiting computer-generated child pornographic depictions is not the same as its interest in prohibiting child pornography produced by using actual children. In the latter instance there may be direct and indirect harm to a child. In the former instance there is no harm, and there can be none, to an actual child, if no real human is used in the production of the images. What is left then is an inconsistent effort to regulate the evil consequences of abusing children to make such images, even though no children are used in its production.
As explained, the CPPA is insufficiently related to the interest in prohibiting pornography actually involving minors to justify its infringement of protected speech. See Village of Schaumburg v. Citizens for a Better Env’t,
5.
The district court found that because the CPPA does not require advance approval for production or distribution of adult pornography that does not use minors and does not effect a complete ban on constitutionally protected material, it does not con
Prior restraint describes “administrative and judicial orders forbidding certain communications” before the communication occurs. See Alexander v. United States,
V.
We hold that the language of “appears to be a minor” set forth in 18 U.S.C. § 2256(8)(B) and the language “convey[s] the impression” set forth in 18 U.S.C. § 2256(8)(D) are unconstitutionally vague and overbroad. The statute is severable. See Pub.L. No. 104-208, 110 Stat. 3009, § 101 (1996). The law is enforceable, except for these amendments to 18 U.S.C. § 2256, § 4 of Senate Bill 1237, through the free standing savings provisions of § 9, codified at 18 U.S.C. § 2256(9).
The judgment of the district court is AFFIRMED on the questions of standing and prior restraint. The judgment of the district court is REVERSED on the questions of the constitutionality of the statutory language “appears to be a minor” and “convey[s] the impression.”
The pending motion by Stop Prisoner Rape, to file an amicus brief in this case, is denied.
The ease is remanded to the district court with instructions to enter judgment on behalf of the plaintiffs consistent with this opinion.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
Notes
. The Opinion of the district court is not published in the Federal Supplement.
. 18 U.S.C. § 2256(8) defines child pornography as:
[A]ny visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where-
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct;
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or
(D)such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct....
. "Sexually explicit conduct” means: actual or simulated-
(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(B) bestiality;
(C) masturbation;
(D) sadistic or masochistic abuse; or
(E) lascivious еxhibition of the genitals or pubic area of any person.
18 U.S.C.A. § 2256(2) (West Supp.1999).
. The CPPA, 18 U.S.C. § 2252A(c), provides an affirmative defense for violations of the Act if:
(1) the alleged child pornography was produced using an actual person or persons engaging in sexually explicit conduct;
(2) each such person was an adult at the time the material was produced; and
(3)the defendant did not advertise, promote, present, describe, or distribute the material in such a manner as to convey the impression that it is or contains a visual depiction of a minor engaging in sexually explicit conduct.
. The dissent rhetorically asks “Why should virtual child pornography be treated differently than real child pornography?” and then suggests there is no "value” in any pornography involving children, whether it involves real persons or imaginary computer images. This is the critical fault in the secondary effects analysis because it shifts the argument focus from whether the questioned speech or images are constitutionally protected to a focus on how the speech or image affects those who hear it or see it.
. The dissent’s argument about the secondary effects justification for permitting the statutory regulation here is not sound because it makes too much of dicta set forth in Osborne v. Ohio,
The premise of the secondary effects argument assumes that children will be enticed by pedophiles to illicit sexual behavior, and consequent injury, if they look at pictures of other kids engaged in sexually explicit conduct. Even if the pictures don't involve real kids, the "realism” of computer images that "appear to be” or “create the impression” of real children can be used by pedophiles to entice a vulnerable child into illegal sexual acts. Thus, according to the dissent, there is a justification to protect kids from the harmful secondary effects of images that don't involve real people. The vulnerability argument makes no constitutional sense in light of Ferber's acknowledgment that adults who look like minors can be used in place of minors in sexually explicit "art” or film depictions. In other words, if the dissent's argument is sound, it would work to bar expression of constitutionally protected speech under Ferber. Nothing would keep the determined pedophile from using Ferber protected images to entice the vulnerable child into harmful sexual conduct.
A similar fault lies in the dissent's reasoning regarding "drawings, cartoons, sculptures, and paintings depicting youthful pеrsons in sexually explicit poses [that] plainly lie beyond the Act,” citing Hilton,
Many innocent things can entice children into immoral or offensive behavior, but that reality does not create a constitutional power in the Congress to regulate otherwise innocent behavior. By the dissent's reasoning a pedophile could use cartoons depicting explicit sexual conduct involving minors to entice a child into engaging in sexually explicit behavior but this would "plainly lie beyond the Act.” Cartoons or other images cannot be constitutionally distinguished from other fictional images based upon the quality of the realism.
The dissent wrongly suggests that our holding accords "virtual child pornography the full protection of the First Amendment.” Because the statute is severable, our holding demonstrates that if morphed computer images are of an identifiable child, the statute is enforceable because there is then the potential for harm to a real child.
. The Senate specifically dealt with the notion that the inclusion of entirely computer-generated images might render the law unconstitutional. Section 9 of Senate Bill 1237, codified at 18 U.S.C. § 2256(9), was added as a safeguard at the behest of Senator Biden. See S.Rep. No. 104-358, at 28 (1996). Section 9 prohibits the use of “identifiable minors in visual depictions of sexually explicit conduct." 18 U.S.C.A. § 2256(9) (West Supp. 1999). Section 9 was added because of the concern that the definition of "child pornography” and its application through § 4 of the Act, the language at issue here, "may be at risk of judicial invalidation insofar as it reaches images that do not depict actual minors.” S.Rep. No. 104-358, at 11 (1996).
Dissenting Opinion
Dissenting:
The majority holds that Congress cannot regulate virtual child pornography
I.
For more than two decades, Congress has been trying to eliminate the scourge of child pornography. See Majority Op. at 1087 - 89. Each time Congress passes a law, child pornographers find a way around the law’s prohibitions. See S.Rep. No. 104-358, at 26 (statement of Sen. Grassley). This cycle recently repeated itself and prompted Congress to enact the CPPA.
Prior to the CPPA, federal law imposed penalties on individuals who produced, distributed, or possessed visual depictions of actual minors engaging in sexually explicit conduct. See 18 U.S.C.A. § 2252 (West Supp.1999). Recent advances in computer-imaging technology, however, have made this law ineffective for two reasons. First, purveyors of child pornography can now produce visual depictions that appear to be actual children engaged in sexual conduct “without using children” at all, “thereby placing such depictions outside the scope of federal law.” 141 Cong. Rec. S13542 (daily ed. Sept. 13,1995) (remarks of Sen. Hatch). Second, even where actual children are used, computers can “alter sexually explicit photographs, films, and videos in such a way as to make it virtually impossible for prosecutors to identify individuals, or to prove that the offending material was produced using [actual] children.” Id.
In an effort to close these loopholes, Congress enacted the CPPA which, inter alia, bans visual depictions that “appear! ] to be of a minor engaging in sexually explicit conduct” or that are “advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.” 18 U.S.C.A. §§ 2256(8)(B), (D) (West Supp.1999). Along with the CPPA, Congress included thirteen detailed legislative findings that explained why virtual child pornography must be prohibited. See 18 U.S.C.A. § 2251 (West Supp.1999).
Despite these detailed legislative findings, the majority rules that Congress failed to articulate a “compelling state interest” to justify criminalizing virtual child pornography. Majority Op. at 1095. The majority argues that Congress cannot constitutionally regulate virtual child pornography because it does not depict “actual children.” Id. Once “actual children” are eliminated from the equation, the majority believes that Congress is impermissibly trying to regulate “evil idea[s].” Id. I disagree for the following reasons.
First. The majority improperly suggests that preventing harm to depicted children is the only legitimate justification for banning child pornography. Although this was the Supreme Court’s focus in New York v. Ferber,
Second. The majority ignores the fact that the Supreme Court has already endorsed many of the justifications Congress relied on when it passed the CPPA. As discussed above, the Court in Osborne recognized that states have a legitimate interest in preventing pedophiles from “us[ing] child pornography to seduce other children into sexual activity.” Osborne,
The Supreme Court has also recognized that states have a legitimate interest in destroying the child pornography market. Osborne,
Third. Even though Congress presented some new justifications that the Supreme Court has not specifically endorsed, the majority still had an obligation to consider them, especially if they advance the goal of protecting children. In both Ferber and Osborne, the Court stated that “[i]t is evident beyond the need for elaboration that a State’s interest in ‘safeguarding the physical and psychological well-being of a minor’ is ‘compelling.’ ” Osborne, 495 U.S.
The lesson from Ferber and Osborne is that legislators should be given “greater leeway” when acting to protect the well-being of children. See Id. at 756,
Fourth. The majority ignores the fact that child pornography, real or virtual, has little or no social value. See Ferber,
Why should virtual child pornography be treated differently than real child pornography? Is it more valued speech? I do not think so. Both real and virtual child pornograрhy contain visual depictions of children engaging in sexually explicit activity. The only difference is that real child pornography uses actual children in its production, whereas virtual child pornography does not. While this distinction is noteworthy, it does not somehow transform virtual child pornography into mean
Fifth. The majority improperly analyzes the CPPA under a strict scrutiny approach. Majority Op. at 1091. In so doing, the majority misreads the Supreme Court’s previous child pornography decisions. These decisions indicate that the proper mode of analysis is to weigh the state’s interest in regulating child pornography against the material’s limited social value. See Ferber,
Virtual child pornography should be evaluated in a similar fashion. The majority should have weighed Congress’ reasons for banning virtual child pornography against the limited value of such material.
II.
The analysis does not end with a finding that virtual child pornography is without First Amendment protection. Statutes can be found unconstitutional if they are worded so broadly that they “criminalize an intolerable range of constitutionally protected conduct.” Osborne,
As a general rule, statutes should not be invalidated as overbroad unless the over-breadth is “substantial ... in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma,
Appellants suggest that the “appears to be” language is so broad that everyday artistic expressions like paintings, drawings, and sculptures that depict youthful looking subjects in a sexual manner will be criminalized 'under the CPPA. However,
From reading the legislative history, it becomes clear that the CPPA merely extends the existing prohibitions on “real” child pornography to a narrow class of computer-generated pictures easily mistaken for real photographs of real children. See Congressional Findings, at 13. Therefore, I agree with the United States Court of Appeals for the First Circuit which found that “drawings, cartoons, sculptures, and paintings depicting youthful persons in sexually explicit poses plainly lie beyond the Act.” Hilton,
There has also been concern that the CPPA prohibits constitutionally protected photographic images of adults in sexually explicit poses. This contention, however, is also without merit. The CPPA explicitly states that “[i]t shall be an affirmative defense” to a charge of distributing, reproducing or selling child pornography that the pornography (1) “was produced using an actual person or persons,” (2) eaсh of whom “was an adult at the time the material was produced,” and (3) “the defendant did not advertise, promote, present, describe, or distribute the material in such a manner as to convey the impression that it is or contains visual depictions of a minor engaging in sexually explicit conduct.” 18 U.S.C.A. § 2252A(c) (West Supp.1999). The CPPA thus shields from prosecution sexually explicit visual depictions so long as they are produced using actual adults and “the material has not been pandered as child pornography.” S.Rep. No. 104-358, at 10, 21. Persons — like the appellants in this case — who produce and distribute works depicting the sexual conduct of actual adults, and do not market the depictions as if they contain sexual images of children, are thus explicitly protected from culpability under the CPPA.
While there may be other potentially impermissible applications of the CPPA, I doubt that they would be “substantial ... in relation to the statute’s plainly legitimate sweep.” Broadrick,
III.
I also disagree with the majority that the CPPA is unconstitutionally vague. It is well settled that a statute is not void for vagueness unless it fails to “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited.” Kolender v. Lawson,
The majority nevertheless finds fault with the CPPA because it believes that the terms “appears to be” and “conveys the impression” are highly subjective and could be enforced “in an arbitrary and discriminatory fashion.” Majority Op. at 1095. Once again, I disagree. With regard to the apparent age of the depicted individuals, the government can usе the same type of objective evidence that it relied on before the CPPA went into effect. For example, in cases involving prepubescent individuals, the government can show the jury the pictures and the jury can determine for itself whether the virtual image “appears to be” of a minor. See e.g. United States v. Arvin,
As an additional safeguard against arbitrary prosecutions, thе government must satisfy the element of scienter before it can obtain a valid conviction under the CPPA. See 18 U.S.C.A. § 2252A (West Supp.1999). In any CPPA prosecution, the government must prove beyond a reasonable doubt that the individual “knowingly” produced, distributed, or possessed sexually explicit material and that the material depicts a person who appeared to the pornographer to be under the age of eighteen. See Id. See also United States v. X-Citement Video, Inc.,
IV.
In sum, the CPPA is not, as the majority claims, an attempt to regulate “evil idea[s].” Instead, the CPPA is an impor
. Computer-generated child pornography comes in many different forms. For purposes of clarity, however, I will divide it into two categories. The first is "virtual" child pornography and the second is "computer-altered” child pornography.
The key to virtual child pornography is that it does not depict an actual or "identifiable minor.” Through a technique called "morphing,” a picture of a real person is transformed into a picture of a child engaging in sexually explicit activity. See S.Rep. No. 104-358, at 15-16. Although the computer-generated image looks real, the children depicted in the image do not actually exist. See id. The picture is therefore 100% "virtual.”
Computer-altered child pornography, by contrast, contains the image of an actual or "identifiable minor.” This type of child pornography can be created by scanning a photograph of a child into the computer and then manipulating the picture so that the child’s face appears on the body of another person who is engaged in sexually explicit activity. See id. Despite the alteration to the picture, the child is still "recognizable.” See 18 U.S.C.A. § 2256(9) (West Supp.1999). Computer-altered child pornography is banned under 18 U.S.C.A. § 2256(8)(C) (West Supp. 1999). Appellants did not challenge this pro
. The congressional findings were based in large part on testimony presented to the Senate Judiciary Committee. See Child Pornography Prevention Act of1995: Hearing before the Senate Judiciary Committee, 104th Cong., 2d Sess. (1996) (hereinafter "Senate Plearing”).
. See also Senate Hearing, at 70 (statement of Bruce Taylor, Chief Counsel for the National Law Center for Children and Families) (stating that "real and apparent [child pornography] ... are equally dangerous because both have ... the same seductive effect on a child victim").
. See also Senate Hearing, at 35 (testimony of Dr. Victor Cline, Emeritus Professor in Psychology at the University of Utah); Id. at 20, 23, 30 (testimony of Jeffrey J. Dupilka, Deputy Chief Postal Inspector for Criminal Investigations).
.See Senate Hearing, at 122 (testimony of Professor Frederick Schauer, Frank Stanton Professor of the First Amendment, Kennedy School of Government, Harvard University) (stating that it is "undoubtedly true” that "somewhere in this chain of computer-generated production there are going to be real children ... involved”).
. Scholarly writers also support using a balancing test to determine whether virtual child pornography is "outside the protection of the First Amendment.” See e.g. Adam J. Wasser-man, Virtual.Child.Pom.Com: Defending the Constitutionality of the Criminalization of Computer-Generated. Child Pornography by the Child Pornography Prevention Act of 1996 — A Reply to Professor Burke and Other Critics, 35 Harv. J. on Legis. 245, 274-78 (1998).