United States Court of Appeals,
First Circuit.
UNITED STATES of America, Appellant,
v.
David HILTON, Defendant, Appellee.
No. 98-1513.
Jan. 27, 1999.
Rehearing and Suggestion for Rehearing En Banc Denied March 1, 1999.
Indictment charging defendant with possessing
child pornography in violation of the Child Pornography Prevention Act (CPPA)
was dismissed by the United States District Court for the District of Maine, Gene Carter, J., 999 F.Supp. 131, on ground the Act is unconstitutional, and the United
States appealed. The Court of Appeals, Bownes, Circuit Judge, held that: (1) considerations beyond preventing
the direct abuse of actual children can qualify as compelling government
objectives where child pornography is concerned; (2) the CPPA is not so
overbroad as to contravene the First Amendment, even in its prohibition of
sexually explicit material involving person that "appears to be" of a
minor; (3) such prohibition was intended to target
only a narrow class of images: visual depictions which are virtually
indistinguishable to unsuspecting viewers from unretouched photographs of
actual children engaging in identical sexual conduct; (4) the CPPA is not
unconstitutionally vague, in violation of due process; (5) standard of whether
person engaged in sexually explicit conduct "appears to be a minor,"
in violation of the CPPA is an objective one; and (6) scienter mus t be proved
to obtain conviction.
Reversed.
West Headnotes
[1] Federal Courts 
776
Court of
Appeals assesses the constitutionality of statute de novo.
[2] Obscenity 8
Under the
Child Pornography Prevention Act (CPPA), a defendant charged with unlawful
distribution or sale would be entitled to a complete defense by showing that the person depicted actually was an
adult, provided that the material was not promoted or presented to give the
impression that it depicts an actual minor, but this affirmative defense is not
made available to those charged with unlawful possession of child
pornography. 18
U.S.C.A. § 2252A(c).
[3] Constitutional Law 1512
(Formerly 92k90(3))
In
general, laws that aim only to prescribe the conditions under which certain
speech may be carried out may be upheld as neutral time, place or manner
restrictions. U.S.C.A.
Const.Amend. 1.
[4] Constitutional Law 1518
(Formerly 92k90(3))
[4]
Constitutional Law 1562
[4]
Constitutional Law 2161
(Formerly 92k90.1(5))
[4]
Constitutional Law 2191
(Formerly 92k90.4(1))
A statute
or regulation that discriminates based on the content of the speech itself
typically must comport with the following standards to survive a constitutional
challenge: it must be (1) animated by one or more compelling state interests;
and (2) narrowly tailored toward fulfilling those concerns; nevertheless, certain
types of expression, chief among them fighting words, libel, and obscenity, are
unprotected altogether. U.S.C.A.
Const.Amend. 1.
[5] Constitutional Law 2246
(Formerly 92k90.4(1))
Child pornography falls into the category
of unprotected speech. U.S.C.A.
Const.Amend. 1.
[6] Constitutional Law 1520
(Formerly 92k90(1))
[6]
Constitutional Law 1524
(Formerly 92k90(1))
[6]
Constitutional Law 3905
(Formerly 92k251.4)
An
otherwise valid law may be so overbroad that it encroaches on protected
expression or so vague that prosecuting a person under the statute would
effectively deprive that person of due process of law. U.S.C.A.
Const.Amends.
1, 5, 14.
[7] Constitutional Law 1517
(Formerly 92k90(3))
Any
restriction on speech, the application of which turns on the content of the
speech, is a content-based restriction regardless of the motivation that lies
behind it, and if a law is directed at the impact of the speech on its viewers,
it cannot be evaluated as a time, place or manner restriction. U.S.C.A.
Const.Amend. 1.
[8] Constitutional Law 2246
(Formerly 92k90.4(1))
The Child
Pornography Prevention Act (CPPA) is not a content-neutral law subject to free
speech analysis as a time, place, or manner restriction. U.S.C.A.
Const.Amend. 1;
18
U.S.C.A. § 2252A.
[9] Constitutional Law 2246
(Formerly 92k90.4(1))
Child pornography, an unprotected category
of expression identified by its content, may be freely regulated. U.S.C.A.
Const.Amend. 1.
[10] Constitutional Law 2246
(Formerly 92k90.4(1))
To pass
constitutional muster under the First Amendment, a particular antichild
pornography statute must be adequately defined.
U.S.C.A.
Const.Amend. 1.
[11] Constitutional Law 2180
(Formerly 92k90.4(1))
Sexually explicit
material may be seen to fall along a constitutional continuum entitling it to
varying degrees of free speech protection: at one end of the spectrum, pictures
of actual children in sexually compromising positions, deemed to have little or
no social value, are entitled to no constitutional protection; at the opposite
end of the spectrum, nonobscene images involving actual adults are entitled to
full protection; and sexually explicit material created without the benefit of
a live child model but which appears to depict an
actual minor, or produced by having an adult pose as a minor and later
presented or sold as if it depicted as an actual minor, arguably falls
somewhere in between. U.S.C.A.
Const.Amend. 1.
[12] Constitutional Law 2246
(Formerly 92k90.4(1))
Considerations
beyond preventing the direct abuse of actual children can qualify as compelling
government objectives where child pornography is concerned. U.S.C.A.
Const.Amend. 1.
[13] Constitutional Law 2249
(Formerly 92k90.4(1))
When child
pornography is the target, government is justified in not only driving it from
the marketplace through aggressive antitrafficking laws, but forbidding the
private possession or personal viewing of these products altogether. U.S.C.A.
Const.Amend. 1.
[14]
Constitutional Law 2246
(Formerly 92k90.4(1))
In
effecting a prohibition of child pornography, a criminal statute must cabin
government authority by adequately defining the type of image that is to be
forbidden. U.S.C.A.
Const.Amend. 1.
[15] Constitutional Law 2245
(Formerly 92k90.4(1))
Greater
leeway ought to be afforded legislatures to regulate sexual depictions
of
children than of adults. U.S.C.A.
Const.Amend. 1.
[16] Constitutional Law 1164
(Formerly 92k82(4))
A statute
will not be invalidated as overbroad, in violation of the First Amendment,
unless its overbreadth is real, but substantial as well, judged in relation to the statute's plainly legitimate
sweep. U.S.C.A.
Const.Amend. 1.
[17] Constitutional Law 1165
(Formerly 92k82(4))
Overbreadth
doctrine should be utilized to invalidate a statute only as a last resort. U.S.C.A.
Const.Amend. 1.
[18] Constitutional Law 1163
(Formerly 92k82(4))
Facial
invalidation of a statute as overbroad is unwarranted if the likely number of
lawful applications of the challenged statute far outstrips the few arguably
problematic prosecutions under the law; it makes little sense to strike down an
entire statute in response to a facial attack when potential difficulties can
be remedied in future cases through fact-specific as-applied challenges. U.S.C.A.
Const.Amend. 1.
[19]
Constitutional Law 2246
(Formerly 92k90.4(1))
[19]
Obscenity 2.5
The Child
Pornography Prevention Act (CPPA) is not so overbroad as to contravene the
First Amendment, even in its prohibition of sexually explicit material
involving person that "appears to be" a minor, in light of narrow
construction indicated by the legislative history. U.S.C.A.
Const.Amend. 1;
18
U.S.C.A. § 2252A.
[20] Constitutional Law 1003
(Formerly 92k48(3))
Where a
statute is susceptible of two constructions, by one of which grave and doubtful
constitutional questions arise and by the other of which such questions are
avoided, Court of Appeal's duty is to adopt the latter.
[21]
Obscenity 5.1
[21]
Obscenity 5.2
Language
of the Child Pornography Prevention Act (CPPA) which prohibits sexually
explicit material involving person that "appears to be" a minor was
intended to target only a narrow class of images: visual depictions which are
virtually indistinguishable to unsuspecting viewers from unretouched
photographs of actual children engaging in identical sexual conduct; thus
drawings, cartoons, sculptures, and paintings depicting youthful persons in
sexually explicit poses lie beyond the reach of the Act. 18
U.S.C.A. § 2256(8).
[22] Obscenity 5.2
Regulation
of child pornography is not limited by the First Amendment to images
manufactured with the use of live children.
U.S.C.A.
Const.Amend. 1.
[23]
Constitutional Law 2251
(Formerly 92k90.4(1))
The First
Amendment interest in permitting dissemination of artistic or scientific
material using an adult model to simulate the sexual behavior of a child would
be sufficiently strong to warrant its protection. U.S.C.A.
Const.Amend. 1.
[24] Constitutional Law 2246
(Formerly 92k90.4(1))
The
existence of a tiny fraction of material that could conceivably qualify for
heightened protection but might nevertheless fall within the purview of the
Child Pornography Prevention Act (CPPA), i.e., where youthful adults pose as
children for sexually provocative images with redeeming social value, does not
render the statute as a whole substantially overbroad, as violating the first
Amendment. U.S.C.A.
Const.Amend. 1;
18
U.S.C.A. § 2252A.
[25]
Constitutional Law 4506
(Formerly 92k251.4)
[25]
Constitutional Law 4034
(Formerly 92k251.4)
A statute
will not be held void for vagueness, in violation of due process, unless 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, but when a law directly
impinges on freedom of expression, court must scrutinize the law with a more
skeptical eye. U.S.C.A.
Const.Amends. 1, 5, 14.
[26] Constitutional Law 4509(20)
(Formerly 92k258(5))
[26]
Obscenity 2.5
The Child Pornography Prevention Act
(CPPA) is not unconstitutionally vague, in violation of due process, on theory
that the "appears to be a minor" standard therein is purely
subjective in nature; to the contrary, the standard is an objective one. U.S.C.A.
Const.Amend. 5;
18
U.S.C.A. § 2256(8).
[27] Obscenity 5.2
Standard
of whether person engaged in sexually explicit conduct "appears to be a
minor," in violation of the Child Pornography Prevention Act (CPPA) is an
objective one: a jury must decide, based on the totality of the circumstances,
whether a reasonable unsuspecting viewer would consider the depiction to be of
an actual individual less than 18 engaged in sexual activity. 18
U.S.C.A. § 2256(8).
[28] Obscenity 16
Evidence
that would be admissible on the question of whether a person depicted as
engaged in sexually explicit conduct "appears to be a minor," in
violation of the Child Pornography
Prevention Act (CPPA) includes: the physical characteristics of the person;
expert testimony as to the physical development of the depicted person; how the
disk, file, or video was labeled or marked by the creator or the distributor of
the image, or the defendant himself; and the manner in which the image was
described, displayed, or advertised. 18
U.S.C.A. § § 2252A(a), 2256(8).
[29] Obscenity 1.2
The
element of scienter must be satisfied by the prosecution before a valid
conviction may be obtained under the Child Pornography Prevention Act (CPPA);
the government must show not only that the individual purposefully acquired or
distributed the material, but that he did so believing that the material was
sexually explicit in nature and that it depicted a person who appeared to him
to be, or that he anticipated would be, under 18 years old. 18
U.S.C.A. § 2252A.
[30] Obscenity 5.2
A defendant who honestly believes that the
individual depicted in the image appears to be 18 years old or older, and is
believed by a jury, or who can show that he knew the images were created by
having youthful-looking adults pose for them, must be acquitted of charge under
the Child Pornography Prevention Act (CPPA), so long as the image was not
presented or marketed as if it contained a real minor. 18
U.S.C.A. § 2252A(a).
[31] Obscenity 1.2
To obtain
conviction under the Child Pornography Prevention Act (CPPA), the government
need not prove that a defendant was aware of the jurisdiction-conferring fact
that the material in question was actually transported in interstate commerce. 18
U.S.C.A. § 2252A.
[32] Obscenity 2.5
It is well
within Congress' power to regulate virtual pornography of minors of all ages,
infancy through age of majority as set by the legislature.
*64
F. Mark Terison, Assistant United States
Attorney, with whom Jay
P. McCloskey, United States Attorney, and Gail
Fisk Malone, Assistant United States Attorney,
were on brief for appellant.
Peter
E. Rodway for appellee.
Lisa
R. Green, Michael
A. Bamberger, and Sonnenschein Nath &
Rosenthal, for American Booksellers Foundation For Free Expression, Freedom To
Read Foundation, International Periodical Distributors Association, Periodical
and Book Association of America, Inc., Publishers Marketing Association, Video
Software Dealers Association, General Media Communications, Inc.; R.
Bruce Rich and Jonathan Bloom for Association of
American Publishers, Inc., on brief for amici curiae.
Before BOUDIN, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges.
*65 BOWNES, Senior Circuit Judge.
In 1996, Congress enacted the Child
Pornography Prevention Act (the
"CPPA"), 18
U.S.C. § 2252A, to attack the rise of computerized or "virtual"
child pornography. These images may
take many forms--a photograph of a real child may be scanned and replicated, an
innocent picture of a child may be manipulated by computer to create a
sexually-oriented photo, or a fake child (ranging
from a simple cartoon character to a high-resolution image resembling a real
child) can be generated wholly by computer graphics.
The law prohibits, inter alia, knowing
possession of visual images depicting minors or those who "appear to
be" minors engaging in sexually explicit conduct. This case presents constitutional issues of
first impression in this circuit:
whether the CPPA's definition of child pornography is so overbroad as to
contravene the First Amendment or so vague as to violate due process.
In resolving defendant David Hilton's motion
to dismiss the indictment in his favor, the United States District Court for
the District of Maine answered both questions in the affirmative. The court was troubled by a perceived difficulty
in determining whether a depicted person appeared to be under 18 years old and
by its belief that the statute impermissibly criminalizes possession of adult
pornography.
We reverse.
We hold that the law, properly construed, survives Hilton's facial
constitutional challenge. It neither
impinges substantially on protected expression nor is so vague as to offend due
process.
I
[1] We assess the constitutionality of the CPPA de novo. See United
States v. DeLuca,
137 F.3d 24, 40 n. 19 (1st Cir.1998). In doing so, we must carefully consider
fundamental constitutional norms in light of recent technological advances to
determine whether Congress's objectives and the statutory
scheme it has established are in accord with our constitutional design.
We begin by providing an overview of the CPPA
and by considering the underlying legislative purposes of the Act. Congress
enacted the CPPA to modernize federal law by enhancing its ability to combat
child pornography in the cyberspace era. [FN1] See S.Rep.
No. 104-358, at pt. I (1996) (declaring that statute addresses
"problem of 'high-tech kiddie porn' "). Lawmakers wished to improve law enforcement
tools to keep pace with technological improvements that have made it possible
for child pornographers to use computers to "morph" or alter innocent
images of actual children to create a composite image showing them in sexually
explicit poses. Through readily
available desktop computer programs, one can even create a realistic picture of
an imaginary child engaged in sexual activity and pass off that creation as an
image of a real child.
FN1. The United
States is one of several countries that have begun to grapple with the effects
of the technological revolution on the child pornography trade. Canada, for example, recently updated its
child pornography laws by banning visual representations that show a person
"who is or is depicted as being under the age of eighteen years and is
engaged in or is depicted as engaging in explicit sexual activity." Criminal Code,
R.S.C., ch. C-46, § 163.1(1)(a)(i) (1998) (Can.). Likewise, Great Britain's child pornography
laws reach "pseudo-photographs" created by computer and provide that
"[i]f the impression conveyed by a pseudo-photograph is that the person
shown is a child, the pseudo-photograph shall be treated for all purposes ...
as showing a child." Protection of
Children Act, 1978, § 7(8), amended by
Criminal Justice and Public Order Act, 1994, §
84(3)(c) (Eng.).
The challenges of regulating virtual child pornography have
spawned a wealth of scholarly commentary.
See, e.g., Lesli C. Esposito, Regulating
the Internet: The New Battle Against
Child Pornography,
30 Case W. Res. J. Int'l L. 541 (1998); Marty Rimm, Marketing
Pornography on the Information SuperHighway,
83 Geo. L.J. 1849 (1995).
The statute's operative provisions, taken
together, criminalize the reproduction, possession, sale, and distribution of
child pornography. See 18
U.S.C. § 2252A(a). They also
prohibit the pandering of material as child pornography by making it a crime to
advertise, promote, or present material "in such a manner that it conveys
the impression *66 that the material is, or contains" child
pornography. 18
U.S.C. § 2256(8)(D).
The statute defines child pornography as:
any 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....
18
U.S.C. § 2256(8). A "visual
depiction" includes--but is not necessarily limited to--"undeveloped
film and videotape, and data stored on computer disk or by electronic means
which is capable of conversion into a visual image." 18
U.S.C. § 2256(5). A
"minor," in turn, means "any person under the age of eighteen
years." 18
U.S.C. § 2256(1). Sexually explicit
conduct is described as "actual or simulated--(A) sexual intercourse,
including genital-genital, oral-genital, anal-genital, or oral-anal, whether
between persons of the same sex or opposite sex; (B) bestiality; (C) masturbation; (D) sadistic or masochistic
abuse; or (E) lascivious exhibition of
the genitals or pubic area of any person."
18
U.S.C. § 2256(2).
[2] There is some overlap in the definition of child
pornography--material created by
manipulating an image of an "identifiable minor" [FN2] would
typically, but not necessarily, appear to be of a minor; similarly, an image showing an actual minor
would probably also "appear to be a minor." On the other hand, images of a purely
fictional child might only satisfy the "appears to be a minor"
test. Under the statutory framework
established by Congress, a defendant charged with unlawful distribution or sale
would be entitled to a complete defense by showing that the person depicted
actually was an adult (provided that the material was not promoted or presented
to give the impression that it depicts an actual minor). See 18
U.S.C. § 2252A(c). The affirmative defense is not made available, however,
to those charged with unlawful possession of child pornography. [FN3]
FN2. An identifiable
minor is a person (1) who was a minor at the time the depiction was created or
altered; (2) whose image is used to
create, adapt, or modify the visual depiction at issue; and (3) who is "recognizable as an
actual person by the person's face, likeness, or other distinguishing
characteristic, such as a unique birthmark or other recognizable
feature." See 18
U.S.C. § 2256(9)(A).
FN3. Section
2252A(c) specifies that those charged with
certain offenses might be entitled to this defense by referencing every
operative provision except the one that
prohibits possession of child pornography.
Congress broadened the scope of federal
anti-child pornography statutes to address a set of related concerns aimed at
the ultimate goal of destroying the underground supply of child pornography in
all of its manifestations. First, the
legislature desired to reduce the sheer volume of computerized child
pornography that could be used by child molesters and pedophiles to
"stimulate or whet their own sexual appetites." S.
Rep. 104-358, at pt. IV(B).
Second, Congress sought to ban
computer-generated images that are "virtually indistinguishable" from
those of real children, but are made without live children. Id. These images can be created with
very little expense, and often are bought, sold, or traded in the same manner
as images created through the use of real children. They can be downloaded from Internet sites,
viewed on computer screens, or stored on hard drives or floppy disks for later
use. Until now, such materials were largely beyond the reach of federal law,
which had focused on representations of actual minors.
Third, the new law was designed to protect the
privacy of actual children whose innocuous *67 images are altered to
create sexually explicit pictures.
Lawmakers hoped to deter the creation of such invasive material and
encourage the destruction of that which currently exists. See id. at § 2(7).
Fourth, Congress wished to deprive child abusers
of a "criminal tool" frequently
used to facilitate the sexual abuse of children. After hearing from an array of experts,
Congress specifically found that virtual pornography created without the
involvement of real minors (often via computer technology alone) is
increasingly used by pedophiles and child molesters to seduce or entice
children into participating in sexual activity by breaking down their natural
inhibitions. Congress determined that
"a child who is reluctant to engage in sexual activity with an adult, or
to pose for sexually explicit photographs, can sometimes be convinced by
viewing depictions of other children 'having fun' participating in such
activity." Id. at § 2(3).
This material is routinely used to instruct children how to perform
certain sexual acts. Images made by
manipulating an innocent picture of a real child to show sexual conduct can
also be used to blackmail that child into submitting to abuse and remaining in
fearful silence about it. Congress
deemed the threat of these forms of physical and emotional abuse to be as grave
as when images of real children are used, for a child shown a
computer-generated image cannot be expected to know whether the child portrayed
in an image is that of a real child or merely a fanciful creation.
II
We recount the relatively short history of
this case. On December 17, 1997, a
federal grand jury indicted Hilton for criminal possession of computer disks
containing three or more images of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B). Well before
trial, Hilton moved to dismiss the indictment, mounting solely a facial attack
on the CPPA. He argued that the statute, by its terms, was unconstitutionally
vague and overbroad, and therefore unenforceable.
On March 26, 1998, the United States District
Court for the District of Maine agreed.
The court determined that the CPPA was a content-neutral regulation
"designed to ameliorate significant harmful secondary effects of the protected
speech rather than suppress the speech itself." United
States v. Hilton,
999 F.Supp. 131, 134 (D.Me.1998). Nevertheless, the court concluded that the
statutory definition of "child pornography" was both vague and
overbroad. It found the "appears
to be a minor" language overly subjective, creating "substantial
uncertainty for viewers presented with materials depicting post-pubescent
individuals" because it may be difficult to distinguish between teenagers
and young adults. Id.
at 136.
The court further found the definition unconstitutionally overbroad,
impacting a "significant amount of adult pornography featuring adults who
appear youthful." Id.
at 137. Despite holding this portion of the
CPPA's definition of child pornography unconstitutional, the district court
made no effort to ascertain the impact of its ruling on the statute as a whole
by examining and applying the statute's severability clause. [FN4] Instead, it simply
dismissed the indictment. The government now appeals.
FN4. Congress contemplated the possibility that this law would
be challenged in court. Accordingly, it
specifically provided that, if some aspect of the definition were to be found
unconstitutional, the invalidation of one element of the definition would not
necessarily render inoperable the entire statutory framework. See CPPA, Pub.L.
No. 104- 208, § 8, 110 Stat. 3009, 3009-31 (1996) ("if any provision of this Act,
including any provision or section of the definition of the term child
pornography, ... is held to be unconstitutional, the remainder of this Act,
including any other provision or section of the definition of the term child
pornography, ... shall not be affected thereby").
III
The government attacks the district court's
analysis in several critical respects.
It first questions the lower court's conclusion that the statute is
overbroad. In its view, the CPPA does
not reach innocuous pictures of children or criminalize protected adult
pornography. The government also takes
issue with the district court's determination that the Act is too vague. The government urges us to hold that the
statute allows persons of *68 ordinary intelligence to determine what
types of material are banned and to conform their conduct accordingly. To require further specificity, it insists, would be not only impractical, but
unrealistic. Additionally, the
government asks us to deem the "appears to be a minor" standard to be
grounded in prosecutorial necessity because it is exceedingly difficult, if not
impossible, for an expert to discern whether an image is one of a real child.
The broadening of the definition of child pornography is critical, the
government argues, because in more and more cases involving virtual child pornography,
the prosecution is unable to prove that real children under a specified age are
depicted.
[3][4][5][6] We turn our attention to familiar constitutional
terrain. The First Amendment declares
that "Congress shall make no law ... abridging freedom of
speech." U.S.
Const. amend. I. We offer a few words about the
doctrines that have developed over time to give meaning to the protective force
of the First Amendment. In general,
laws that aim only to prescribe the conditions under which certain speech may
be carried out may be upheld as neutral time, place or manner
restrictions. See United
States v. Grace,
461 U.S. 171, 177, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) ("[T]he government may enforce reasonable time,
place, and manner regulations as long as the restrictions 'are content neutral,
are narrowly tailored to serve a significant government interest, and leave
open ample alternative channels of communication.' ") (citation
omitted). But a statute or regulation
that discriminates based on the content of the speech itself typically must
comport with the following standards to
survive a constitutional challenge: it
must be (1) animated by one or more compelling state interests; and (2) narrowly tailored toward fulfilling
those concerns. Nevertheless, certain
types of expression--chief among them fighting words, libel, and obscenity--are
unprotected altogether. See R.A.V.
v. City of St. Paul,
505 U.S. 377, 383- 85, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). Child pornography
falls into the category of unprotected speech.
See New
York v. Ferber,
458 U.S. 747, 764, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Finally, an
otherwise valid law may be so overbroad that it encroaches on protected
expression or so vague that prosecuting a person under the statute would
effectively deprive that person of due process of law. See Kolender
v. Lawson,
461 U.S. 352, 357-58, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).
[7][8] For the sake of clarifying this area of law, we find it
necessary to point out that the district court misapplied the time, place or
manner doctrine by mistaking the CPPA for a content-neutral law. A distinct line of cases upholds
reasonably-crafted regulations where the state acts not to suppress certain speech
but to direct, in a content-neutral way, how or when that speech may be
expressed in the public sphere. See,
e.g., United
States v. Kokinda,
497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (upholding federal regulation prohibiting solicitation on postal
property). Still, "[a]ny
restriction on speech, the application of which turns
on the content of the speech, is a content-based restriction regardless of the
motivation that lies behind it." Boos
v. Barry,
485 U.S. 312, 335- 36, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (Brennan, J., concurring). Of course, if a law is directed at the
impact of the speech on its viewers, it cannot be evaluated as a time, place or
manner restriction. See Reno
v. American Civil Liberties Union,
521 U.S. 844, 117 S.Ct. 2329, 2342-43, 138 L.Ed.2d 874 (1997) (rejecting argument that Communications Decency Act, which
banned on-line transmission of "obscene or indecent" messages, was
time, place or manner regulation); Forsyth
County v. Nationalist Movement,
505 U.S. 123, 134, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) ("Listeners' reaction to speech is not a
content-neutral basis for regulation.").
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. [FN5] *69 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. See S.
Rep. 104-358, at pt. III, IV(A) (reflecting congressional concern
that a "child molester or pedophile [may use] the material to whet his
sexual appetites," that child pornography "poisons the minds and
spirits of our youth," and that, if
shown to children, the material may "make children more susceptible of
acceding to sexual demands of would-be abusers"); see also id. at pt. IV(B) (observing
that "a major part of the threat to children posed by child pornography is
its effect on the viewers of such material"). For these related reasons, the child
pornography law is plainly activated by a "content-based classification of
speech." Ferber,
458 U.S. at 763, 102 S.Ct. 3348.
FN5. In contrast, the
cases relied upon by the district court involved time, place and manner
regulations. See Ward
v. Rock Against Racism,
491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (sound amplification guidelines);
City
of Renton v. Playtime Theatres, Inc.,
475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986)
(zoning ordinance restricting adult theaters to more than 1,000 feet from
residential zones, dwellings, churches, parks, and schools); Tollis,
Inc. v. San Bernardino County,
827 F.2d 1329 (9th Cir.1987) (similar zoning
ordinance).
Moreover, the statute makes no effort to
permit alternative methods of disseminating or possessing the material in
question. In this respect, the district
court also erred in finding that adequate alternative avenues of expression
exist. The CPPA is a quintessential
content-specific statute, and therefore cannot be properly understood as a
time, place or manner regulation.
[9] But to say that the
CPPA is content-based does not end the matter, for it is well-settled that
child pornography, an unprotected category of expression identified by its
content, may be freely regulated. We
are asked to determine: first, whether the
statute's definition of child pornography, expanded in an effort to outlaw
computerized child pornography, satisfies the First Amendment; and second, assuming its sweep is
appropriate, whether the law is adequately precise as to provide fair warning.
To resolve these issues, we start by reviewing
the Supreme Court's pronouncements on the government's power to regulate child
pornography. In Ferber, the
Supreme Court first upheld the constitutionality of a state law proscribing the
distribution of material depicting sexual performances by children under the
age of 16. See 458
U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113. In doing so, it carved out an entire
category of speech "which, like obscenity, is unprotected by the First
Amendment." Id.
at 764, 102 S.Ct. 3348. The Court likened child pornography to
obscenity in that both kinds of expression may be banned, but explained that
because of the state's "compelling interest in prosecuting those who
promote the sexual exploitation of children," see id.
at 761, 102 S.Ct. 3348, a law regulating child
pornography need not adhere mechanistically to the three-part test for
obscenity originally enunciated in Miller
v. California,
413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). One reason for allowing a departure from the
obscenity rule and, as a result, somewhat
greater authority to regulate child pornography is that "a work which ...
contains serious literary, artistic, political, or scientific value may
nevertheless embody the hardest core of child pornography." Id.
[10] The Ferber Court did not establish a single
one-size-fits-all constitutional definition of child pornography (as the Court
arguably has done for obscenity), but provided general guiding principles. Ultimately, to pass constitutional muster, a
particular anti-child pornography statute must be "adequately
defined." 458
U.S. at 764, 102 S.Ct. 3348. In Ferber, the Court pointed out that
New York's prohibition was confined to works that "visually depict
sexual conduct by children below a specified age." Id. (Emphasis in original). It was also persuaded that the law's
definition of sexual activity was "suitably limited and
described." Id.
The Court further developed the contours of
its child pornography jurisprudence in Osborne
v. Ohio,
495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990). There, the Court evaluated a state law
prohibiting the possession and viewing of material depicting a nude minor
"where such nudity constitutes a lewd exhibition or involves a graphic
focus on the genitals." A
defendant charged with unlawful possession attacked the statute as overbroad *70
and vague. Rebuffing his twin
challenges, the Court found that the statute was not aimed at controlling a
person's private thoughts, but had been enacted to "protect victims of
child pornography" and to "destroy[ ] a market for the exploitative use of children." 495
U.S. at 109, 110 S.Ct. 1691. The Osborne Court explicitly approved
the following legislative goals:
stamping out child pornography because it often serves as a record of
abuse of real children; and denying
pedophiles and would-be child abusers access to child pornography, which could
be used to seduce or coerce children into sexual activity. See id.
at 110-11, 110 S.Ct. 1691. The former remains intricately tied to the
need to protect real children represented in the pictures, but the latter marks
a subtle, yet crucial, extension of a state's legitimate interest to the
protection of children not actually depicted in prohibited images.
As these cases demonstrate, the line between
unprotected child pornography and otherwise protected expression (including
possession of adult pornography, see Stanley
v. Georgia,
394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969)),
is not entirely tangle-free.
Nonetheless, four lessons can be drawn from the decisions.
[11] First, sexually explicit material may be seen to fall
along a constitutional continuum entitling it to varying degrees of
protection. At one end of the spectrum,
pictures of actual children in sexually compromising positions, deemed to have
little or no social value, are entitled to no constitutional protection. At the opposite end of the spectrum,
non-obscene images involving actual adults are entitled to full
protection. Sexually explicit material created without the benefit
of a live child model but which appears to depict an actual minor, or produced
by having an adult pose as a minor and later presented or sold as if it
depicted an actual minor, arguably falls somewhere in between.
[12][13] Second, considerations beyond preventing the direct abuse
of actual children can qualify as compelling government objectives where child
pornography is concerned. When child pornography
is the target, government is justified in not only driving it from the
marketplace through aggressive anti-trafficking laws, but forbidding the
private possession or personal viewing of these products altogether. See Osborne,
495 U.S. at 110, 110 S.Ct. 1691 (approving of
state's efforts to "stamp out this vice at all levels in the distribution
chain"). In this sense, concerns
about how adults may use child pornography vis-a-vis children and how children
might behave after viewing it legitimately inform legislators' collective
decision to ban this material.
[14] Third, in effecting such a prohibition, a criminal statute
must cabin government authority by "adequately defin[ing]" the type
of image that is to be forbidden. The
cases require not only that the term "minor" be defined, but also
that the type of condemned sexual depiction be carefully described.
[15] Fourth, wherever the constitutional demarcation is to be
properly drawn, "greater leeway" ought to be afforded legislatures to
regulate sexual depictions of children. Ferber,
458 U.S. at 756, 102 S.Ct. 3348. The Court's
instruction to federal courts to permit Congress slightly more room to operate
in this area is bolstered by its view that "[t]he value of permitting ...
photographic reproductions of children engaged in lewd sexual conduct is
exceedingly modest, if not de minimis." Id.
at 762, 102 S.Ct. 3348. As a result, some discretion has been given
legislatures to set out the parameters of anti-pornography restrictions. For instance, the Court has repeatedly
acknowledged that states have latitude to set the age at which an image is of a
child rather than an adult. See,
e.g., United
States v. X-Citement Video, Inc.,
513 U.S. 64, 67, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) (upholding federal law that employs 18 as age of
majority); Ferber,
458 U.S. at 749, 102 S.Ct. 3348 (law set age of majority at 16). Congress and
statehouses have some leeway in defining the kind of sexual depiction to be
proscribed as well. See X-Citement
Video,
513 U.S. at 78-79, 115 S.Ct. 464 (holding that it
is constitutionally permissible to use either formulation--"lewd" or
"lascivious" display of children's genitals).
*71 With this analytic framework in
mind, we turn to the task of assessing the constitutionality of the CPPA. The
initial step is to ascertain the general scope of the statutory definition of
child pornography, a task of pure statutory interpretation. Comparison of the law with prevailing
constitutional precepts then follows.
IV
[16][17] We first evaluate
the district court's conclusion that the CPPA is unconstitutionally
overbroad. Overbroad statutes by their
nature present a host of difficulties for our system of ordered liberty, not
the least of which is a chilling effect on the communication of lawful
ideas. But a statute will not be invalidated
as overbroad unless its overbreadth is "real, but substantial as well,
judged in relation to the statute's plainly legitimate sweep." Osborne,
495 U.S. at 112, 110 S.Ct. 1691 (citation
omitted). As the Court has admonished,
the overbreadth doctrine is "strong medicine" that should be utilized
"only as a last resort." Ferber,
458 U.S. at 769, 102 S.Ct. 3348 (quoting Broadrick
v. Oklahoma,
413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)).
[18] Judicial disinclination to employ the overbreadth doctrine
is rooted in several important considerations.
The first is an appreciation for the "wide-reaching effects of
striking down a statute on its face."
Id. Another related reason is that it may be inefficient to do
so: facial invalidation is unwarranted
if the likely number of lawful applications of the challenged statute far
outstrips the few arguably problematic prosecutions under the law. It makes
little sense to strike down an entire statute in response to a facial attack
when potential difficulties can be remedied in future cases through
fact-specific as-applied challenges. A
third reason to hesitate before invoking the overbreadth doctrine is that doing
so may be unwise. Deciding constitutional questions in the abstract is a
recipe for making bad law. See id.
at 781, 102
S.Ct. 3348 (Stevens, J., concurring)
("Hypothetical rulings are inherently treacherous and prone to lead us
into unforeseen efforts; they are
qualitatively less reliable than the products of case-by-case adjudication.").
[19] The key question, then, is whether the CPPA poses
substantial problems of overbreadth sufficient to justify overturning the
judgment of the lawmaking branches. We
conclude that it does not. We begin
with the language of the statute. To
the extent the CPPA criminalizes the possession, reproduction or distribution
of a visual representation of an actual minor engaged in sexual conduct,
it falls easily within the parameters established by Ferber and Osborne. The government's interests in deterring the
direct abuse of children and destroying the illicit child pornography trade
amply justify these steps, and the CPPA's methods of eradicating such images
are appropriate.
Whether or not the prohibition of material that
"appears to be" of a minor comports with the First Amendment is more
troublesome. At first blush, potential
problems threaten to doom the law.
First and foremost, "appears" to whom? The statute itself is silent as to whether
the test is meant to be objective or subjective or some combination of the
two. On its face, the statute might
also reach depictions with political, artistic, scientific, or educational
value. If so, it is unclear whether
that would be constitutionally
permissible. And if, as Hilton and
amici insist, the phrase "appears to be a minor" criminalizes
possession of adult pornography created with models over the age of majority
who look youthful, this too might pose additional constitutional difficulties.
[20] A correct interpretation of the "appears to be a
minor" standard and a full understanding of the interplay among the legal
protections afforded an individual, we believe, puts the bulk of these concerns
to rest. As to the breadth of the
material covered by the statute, Congress's statements provide us with a
precise and limited understanding of the "appears to be" language. We
are obligated to follow it. "Where
a statute is susceptible of two constructions, by one of which grave and
doubtful constitutional questions arise and by the other of which such
questions are avoided, our duty is to adopt the latter." *72Almendarez-Torres
v. United States,
523 U.S. 224, 118 S.Ct. 1219, 1234, 140
L.Ed.2d 350 (1998) (Scalia, J., dissenting)
(quoting United
States ex rel. Attorney General v. Delaware and Hudson Co.,
213 U.S. 366, 408, 29 S.Ct. 527, 53 L.Ed. 836 (1909)); see also Ferber,
458 U.S. at 769 n. 24, 102 S.Ct. 3348 ("When
a federal court is dealing with a federal statute challenged as overbroad, it
should ... construe the statute to avoid constitutional problems, if the
statute is subject to such a limiting construction."); Veiga
v. McGee,
26 F.3d 1206, 1212 (1st Cir.1994) ("In the
absence of clear legislative intent, we will not adopt an interpretation of a statute that would render it constitutionally
suspect."). [FN6]
FN6. This maxim of
statutory interpretation is grounded in a desire to avoid premature
adjudication of constitutional issues and reflects a presumption that Congress,
in enacting the law, "would intend to err on the side of fundamental
constitutional liberties when its legislation implicates those
liberties." Regan
v. Time, Inc.,
468 U.S. 641, 697, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984).
[21] We take our cue from the legislative record, which makes
plain that the new language was intended to target only a narrow class of
images--visual depictions "which are virtually indistinguishable to
unsuspecting viewers from unretouched photographs of actual children engaging
in identical sexual conduct." S.
Rep. 104-358, at pt. I, IV(B).
The Senate, in enacting S. 1237, explicitly stated that the
"appears to be" language "applies to the same type of
photographic images already prohibited, but which does not require the use of
an actual minor in its production."
Id. at pt. IV(C). The Senate clearly indicated that, by
employing the phrase "appears to be," it was "extend [ing] [the
prohibition against child pornography] from photographic depictions of actual
minors engaging in sexually explicit conduct to the identical type of
depiction, one which is virtually indistinguishable from the banned photographic depiction," and no
further. Id. (Emphasis added).
A few observations logically flow from this
narrow construct. The primary one is
that Congress meant only to extend federal authority in an important but
limited fashion to a specific subset of visual images--those which are easily
mistaken for that of real children.
It follows that drawings, cartoons,
sculptures, and paintings depicting youthful persons in sexually explicit poses
plainly lie beyond the reach of the Act. [FN7] By definition, they would not be "virtually
indistinguishable" from an image of an actual minor. The CPPA therefore does not pose a threat to
the vast majority of every day artistic expression, even to speech involving
sexual themes.
FN7. The government
concedes this point in a different way:
that such drawings or paintings would not be a visual depiction of a
"person." We make no judgment about the correctness of the
government's interpretation of the term "person."
Hilton (and assorted amici) nevertheless
insist that the First Amendment allows regulation of sexually explicit material
only where actual children are abused in its creation. They also contend that the statute is
impermissibly expansive because it is very difficult to determine whether a
person looks 17 or 18; they believe that the statute is bound to
criminalize possession of protected adult pornography.
[22] Their first argument amounts to an effort to draw a bright
line in an area of law in which courts have resisted creating clear-cut
categories. Relying on Ferber 's discussion of the importance of
protecting children from sexual exploitation, they argue that the Supreme Court
has strictly limited regulation of child pornography to images manufactured
with the use of live children. But we
find no firm basis for this overly restrictive reading of precedent. We do not read the cases to say that
Congress has power to remedy only the abuse of children during the process used
to produce traditional forms of child pornography. While the Court certainly has been concerned
with the "surpassing importance" of protecting the actual abuse of
children who appear in pornographic material, it has not limited the
government's authority to achieving that objective, and that objective alone. Ferber,
458 U.S. at 757, 102 S.Ct. 3348. Rather, it has mandated that government be
permitted a certain degree of flexibility *73 in how it chooses to
grapple with new problems presented by the evolving nature of the child
pornography industry. See Osborne,
495 U.S. at 110, 110 S.Ct. 1691. The cases do
suggest, however, that an appropriate set of governmental goals (and the
government's methods of fulfilling those goals) should be reasonably related to
the primary aim of "safeguarding the physical and psychological well-being" of children, and, by
extension, crippling the clandestine child pornography trade. Id.
at 109, 110 S.Ct. 1691 (citation omitted).
The laws in force when the Court decided Ferber
and Osborne uniformly defined child pornography by focusing on material
involving the use of actual children.
The Court in those cases used, for purposes of its constitutional
discussion, the statutory definition of child pornography then before it. The legal issues presented in this case,
including Congress's justifications offered for extending child pornography
statutes to stem the flow of virtual child pornography, have not been analyzed
by this, or any other, court of appeals. [FN8]
FN8. The Free
Speech Coalition v. Reno,
1997 WL 487758 (N.D.Cal. Aug. 12, 1997), in which
a federal district court upheld the CPPA against a defendant's overbreadth and
vagueness challenges, has been appealed to the Ninth Circuit, but the court has
not yet rendered a decision.
We think that it is a logical and permissible
extension of the rationales in Ferber and Osborne to allow the
regulation of sexual materials that appear to be of children but did not, in
fact, involve the use of live children in their production. Like sexually explicit material produced
with actual children, there is little, if any, social value in this type of expression. In constitutional terms, sexually explicit
material produced without the benefit of a live child model but giving the
appearance as if it had been is more akin to traditionally unprotected child
pornography than adult pornography. The
same is true of material created by having a youthful-looking adult pose as a
minor that is sold or presented as though it contained a pornographic image of
an actual minor. Such depictions can be
readily used so as to further the child pornography trade or to facilitate the
abuse of children.
The government's interest in safeguarding the
welfare of children is compelling in these situations. Computer-created or enhanced material can be
bought, sold, or traded like any other form of child pornography, adding
further fuel to the underground child pornography industry. It can be used just as effectively as pictures
of actual children to entice or blackmail children into cooperating with
would-be abusers. Moreover, the
material may have been created through the abuse of an actual minor but altered
so that it may be impossible to show that a real child was ever involved in its
creation. As technology improves and access to technology increases, efforts to
eradicate the child pornography industry could be effectively frustrated if
Congress were prevented from targeting sexually explicit material that "appears
to be" of real children. The
government's interest in addressing these forms of child pornography is no less
powerful than in instances where an actual child is actually used and abused during the production
process. We will not second-guess
Congress's decision to address the social ills posed by the various types of
virtual child pornography.
Hilton's and amici's next objection also
misses the mark. They maintain that the
inherent difficulty of determining whether a depicted person "appears to
be" 17 or 18 renders the definition overly broad. They fear that persons will be convicted of
possessing sexually explicit material of adults who look or dress in a youthful
manner. We think this danger is overstated. The main flaw in the argument is its
inordinate focus on the arguably fuzzy line between age 17 and 18, a line
which, as with many laws, must be drawn somewhere. More importantly, we are satisfied that the
vast majority of prosecutions under the "appears to be a minor"
provision would involve images of pre-pubescent children or persons who
otherwise clearly appear to be under the age of 18. Congress, relying on the
opinion of experts, has determined that purveyors of child pornography usually
cater to pedophiles, who by definition have a predilection for pre-pubertal
children. See S. Rep. 104-358,
at § 2, pts. IV(A), (C). The apparent age of a pre-pubescent *74
child can easily be established through objective proof. While it is theoretically possible that
there may be prosecutions of individuals selling or possessing images of
youthful-looking adults, it is unlikely that they would comprise a substantial
proportion of the prosecutions under the statute.
The
existence of a few possibly impermissible applications of the Act does not
warrant its condemnation. As the Court
has repeatedly made plain, even if a statute at its margins infringes on
protected activity, the solution is not invalidation of the entire scheme. See Frisby
v. Schultz,
487 U.S. 474, 488, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) (declining to evaluate all "hypothetical
applications" of ordinance in resolving facial challenge). Whatever
overbreadth may exist at the edges are more appropriately cured through a more
precise case-by-case evaluation of the facts in a given case. See New
York State Club Assoc., Inc. v. City of New York,
487 U.S. 1, 14, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988).
We recognize that the Court has said that
adult models may be employed under certain circumstances to simulate minors
posing in a sexually provocative manner for serious artistic, educational, or
scientific purposes. Indeed, in Ferber,
the Court observed that "if it were necessary for literary or artistic
value, a person over the statutory age who perhaps looked younger could be
utilized." 458
U.S. at 763, 102 S.Ct. 3348; see also X-Citement
Video,
513 U.S. at 72, 115 S.Ct. 464
("[N]on-obscene, sexually explicit materials involving persons over the
age of 17 are protected by the First Amendment.").
[23] Take, for example, a film version of Nabokov's Lolita. A director might legitimately wish to employ
a youthful-looking adult to portray, in a non-obscene
manner, a sexual encounter between Lolita and Humbert. Similarly, use of an adult model to simulate
the sexual behavior of a child might be necessary for scientific research. The social value of these works obviously
could not be shrugged off as de minimis.
They would be far from the "hardest core of child
pornography." Ferber,
458 U.S. at 761, 102 S.Ct. 3348. The First Amendment interest in permitting
dissemination of such material would be sufficiently strong to warrant its
protection. At the same time, the
government's countervailing interest in protecting children "is likely to
be far less compelling" when "the depiction is a serious contribution
to art or science." Id.
at 776, 102 S.Ct. 3348 (Brennan, J.,
concurring). Should the government
decide to prosecute someone for distributing or possessing such material, we
believe there would be an affirmative First Amendment defense available to the
accused, although we need not define now its precise dimensions. Recognizing such a defense is consistent
with Congress's general view that the law generally "does not, and is not
intended to, apply to a depiction produced using adults engaging in sexually
explicit conduct, even where a depicted individual may appear to be a
minor." S.
Rep. 104-358, at pt. IV(C).
It is also consonant with the Court's teachings in Ferber, where
the Court assumed that even if in some rare instance the depiction of children
performing sexual acts might be necessary for literary or artistic reasons,
"a person over the statutory age who perhaps looked younger could be utilized."
458
U.S. at 763, 102 S.Ct. 3348.
[24] We need not fully explore the details of this exception
today. Suffice it to say that the
existence of a tiny fraction of material that could conceivably qualify for
heightened protection but might nevertheless fall within the purview of the Act
(i.e., where youthful adults pose as children for sexually provocative
images with redeeming social value) does not render the statute as a whole
substantially overbroad. The
appropriate remedy is reversal of an unconstitutional conviction should the
circumstance arise, not invalidation of the statute in toto at this
stage.
Once the phrase "appears to be a
minor" is properly understood, the constitutional barriers fall away. The fear of a chilling effect on protected
speech subsides. We conclude, therefore,
that the CPPA is not unconstitutionally overbroad.
V
We next consider whether the district court
erred in holding the CPPA unconstitutionally vague. The touchstone of our system *75 of
justice is the right to fair warning of criminal charges. An ambiguous law fails to provide the
requisite notice and undermines public confidence that the laws are equally
enforced.
[25] The standard for overturning a law on vagueness grounds is
a stringent one. A statute will not be
held void for vagueness unless 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,
461 U.S. at 357, 103 S.Ct. 1855; see also United
States v. Bohai Trading Co.,
45 F.3d 577, 580 (1st Cir.1995) (proper inquiry
is whether statute "provide[s] a constitutionally adequate warning to
those whose activities are governed") (citation omitted). When a law directly impinges on freedom of
expression, as the CPPA does here, we must scrutinize the law with an even more
skeptical eye. We are obliged do so
because the threat of severe criminal sanctions and the full force of social
stigma, coupled with uncertain notice of criminal liability offered by a
poorly-worded statute, "may well cause speakers to remain silent rather
than communicate even arguably unlawful words, ideas, and images." Reno
v. ACLU,
521 U.S. at ----, 117 S.Ct. at 2345.
[26][27] The district court found the CPPA unduly vague because it
believed the "appears to be a minor" standard to be purely subjective
in nature. To the contrary, we hold
that the standard is an objective one.
A jury must decide, based on the totality of the circumstances, whether
a reasonable unsuspecting viewer would consider the depiction to be of an
actual individual under the age of 18 engaged in sexual activity. See S.
Rep. 104-358, at pt. IV(C).
[28] Without limiting a priori the type of evidence that
would be admissible on this question in a
given case, the following proof could be offered to establish the apparent age
of the person shown: the physical
characteristics of the person; expert
testimony as to the physical development of the depicted person; how the disk, file, or video was labeled or
marked by the creator or the distributor of the image, or the defendant
himself, see, e.g., United
States v. Robinson,
137 F.3d 652, 652 (1st Cir.1998) (photographs
labeled by names, dates taken, and ages of boys depicted); and the manner in which the image was
described, displayed, or advertised.
While this list is hardly exhaustive, it gives a flavor of the ways in
which a depicted person's apparent age might be objectively proven.
[29] The element of scienter also must be satisfied by the
prosecution before a valid conviction may be obtained--for instance, the
government must prove beyond a reasonable doubt that an individual
"knowingly" possessed the child pornography. See 18
U.S.C. § 2252A(a)(5)(B). This statutory
requirement serves as an additional safeguard, for the government must show not
only that the individual purposefully acquired or distributed the material, but
that he did so believing that the material was sexually explicit in nature and
that it depicted a person who appeared to him to be (or that he anticipated
would be) under 18 years old. See X-Citement
Video, Inc.,
513 U.S. at 78, 115 S.Ct. 464 (holding that
scienter requirement in related anti-child pornography statute "extends to
both the sexually explicit nature of the material
and to the age of the performers").
[30][31] The CPPA offers an added measure of protection. It provides an affirmative defense if the
person depicted actually was an adult at the time the image was created. When the defense is appropriate, the fact
that the person depicted was a live model at least 18 years of age typically
will lead to dismissal of the charge.
Although Congress did not make the affirmative defense available to
someone accused of unlawful possession (as opposed to any of the other offenses
such as distribution), what an individual actually believed to be the age of
the depicted person still goes to his state of mind in possessing the
material. Thus, a defendant who
honestly believes that the individual depicted in the image appears to be 18
years old or older (and is believed by a jury), or who can show that he knew
the image was created by having a youthful-looking adult pose for it, must be
acquitted, so long as the *76 image was not presented or marketed as if
it contained a real minor. [FN9]
FN9. The government
need not prove that a defendant was aware of the jurisdiction-conferring fact
that the material in question was actually transported in interstate
commerce. See Robinson,
137 F.3d at 655.
We believe, in short, that the statute's
provisions "suitably limit" the reach of
the Act so that a person of ordinary intelligence can easily discern likely
unlawful conduct and conform his or her conduct appropriately. The statute carefully defines the term
"minor." The scope of its
prohibition, like the law evaluated in Ferber, is restricted to visual
images. The statute describes, in
painstaking detail, the types of sexually explicit depictions of children that
are forbidden. As the Court said in Osborne,
such limiting language "avoid[s] penalizing persons for viewing or possessing
innocuous photographs of naked children."
495
U.S. at 114, 110 S.Ct. 1691.
We disagree with the district court's
assumption that the use of a legal standard requiring an evaluation of the
appearance of an image renders the test arbitrary or overly susceptible to
manipulation. Reasonable objective
assessments of the impression conveyed by a person's actions or how an image
"appears" are routinely made by judges and juries. See, e.g., Liteky
v. United States,
510 U.S. 540, 553 n. 2, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (noting that recusal motions under 28
U.S.C. § 455(a) are governed by "objective appearance of
partiality" test); Ferber,
458 U.S. at 751, 102 S.Ct. 3348 (approved
definition of child pornography banned "simulated" sexual conduct,
which in ordinary usage means "to have or take on the appearance
of"); Miller,
413 U.S. at 24, 93 S.Ct. 2607 (obscenity depends
in part on whether material appeals to prurient interest of average person).
Yet Hilton returns to a familiar refrain: that it is terribly difficult to distinguish between an apparent 17
year old and an apparent 18 year old.
This problem, he argues, renders the statute unduly vague (as well as
overbroad). We think not. As discussed earlier, any number of
objective signs should be enough to warn an ordinary viewer of sexually
explicit material of the apparent age of the person depicted, including his or
her physical characteristics and how the image is labeled or marketed. And those involved in the production of
lawful sexually explicit material can easily protect themselves by verifying
the ages of the models they employ or by taking steps to visually demonstrate
that a computer-generated image is meant to portray an adult.
There is another reason why Hilton's vagueness
challenge fails: there are few equally
efficacious alternatives. At oral
argument, defense counsel suggested that a better approach would be to prohibit
images of persons who are or appear to be "physically sexually
immature." Such a test, had
Congress selected it, might very well have been more precise than the one
Congress chose to adopt, which turns on the age or apparent age of the person
depicted. It is often said that because
we are "[c]ondemned to the use of words, we can never expect mathematical
certainty from our language." Grayned
v. City of Rockford,
408 U.S. 104, 109, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). That lesson
applies here.
[32] But even if the proffered standard were more exact, there
would still be a more fundamental
problem--it would fail to reach a whole category of persons Congress intended
to protect, namely, those youngsters who appear "physically sexually
mature" but are under the age of consent.
We reject the suggestion that Congress must be confined to addressing
pornographic images of some children, but not others. Firmly satisfied that it is well within
Congress's power to regulate virtual pornography of minors of all ages (infancy
through age of majority as set by the legislature), we are aware of few other
linguistic approaches that would achieve the same goals. Defendant's proposal does not fit the
bill. The "appears to be a minor"
test, by comparison, is sufficiently precise to pass constitutional muster and
yet flexible enough to meet the challenges posed by computerized child
pornography.
We see no reason to strike down the CPPA as
unconstitutionally vague. The language *77
of the statute affords an ordinary consumer of sexually explicit material adequate
notice of the kinds of images to avoid.
The interaction among the applicable legal standards, moreover, offers
the average person additional protection.
These safeguards, working in concert, minimize the danger that this law
might be enforced in an arbitrary or discriminatory fashion by overzealous
police officers or prosecutors.
The judgment of the district court is reversed.
•UNITED
STATES OF AMERICA, Plaintiff/Appellant, v. David HILTON, Defendant/Appellee.,
1998 WL 34286868 (Appellate Brief) (C.A.1 June
30, 1998), Brief of the Appellant United
States of America
•UNITED
STATES OF AMERICA, Plaintiff/Appellant, v. David HILTON, Defendant/Appellee.,
1998 WL 34286869 (Appellate Brief) (C.A.1 July
20, 1998), Brief of Appellee, David Hilton
•UNITED
STATES OF AMERICA, Appellant, v. David HILTON, Appellee., 1998 WL 34286866 (Appellate Brief) (C.A.1 July 31, 1998), Brief of American
Booksellers Foundation for Free Expression, Association of American Publishers,
Freedom to Read Foundation, International Periodical Distributors Association,
Periodical and Book Association of America, Inc., Publishers Marketing As
•UNITED
STATES OF AMERICA, Plaintiff/Appellant, v. David HILTON, Defendant/Appellee.,
1998 WL 34286867 (Appellate Brief) (C.A.1
September 9, 1998), Reply Brief of the Appellant United States of America
167 F.3d 61, 27 Media L. Rep. 1289
END OF
DOCUMENT