No. 00-795 

In the Supreme Court of the United States 

JOHN D. ASHCROFT, ATTORNEY GENERAL 

OF THE UNITED STATES, ET AL., PETITIONERS 

v. 

THE FREE SPEECH COALITION, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE PETITIONERS 

BARBARA D. UNDERWOOD 
Acting Solicitor General 

Counsel of Record 

STUART E. SCHIFFER 

Acting Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

IRVING L. GORNSTEIN 

Assistant to the Solicitor 

General 

BARBARA L. HERWIG 
JACOB M. LEWIS 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

The Child Pornography Prevention Act of 1996 (CPPA), 
prohibits, inter alia, the shipment, distribution, receipt, re- 
production, sale, or possession of any visual depiction that 
“appears to be[] of a minor engaging in sexually explicit con- 
duct.” 18 U.S.C. 2252A, 2256(8)(B) (Supp. V 1999). It also 
contains a similar prohibition concerning any visual depiction 
that is “advertised, promoted, presented, described, or dis- 
tributed 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. 2252A, 
2256(8)(D) (Supp. V 1999). The question presented is 
whether those prohibitions violate the First Amendment to 
the Constitution. 

(I) 

II 

PARTIES TO THE PROCEEDINGS 

Petitioners are John D. Ashcroft, Attorney General of the 
United States, and the United States Department of Justice. 
Respondents are The Free Speech Coalition, Bold Type, 
Inc., Jim Gingerich, and Ron Raffaelli. 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Constitutional and statutory provisions involved ................... 
2 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 
13 

Argument: 

The “appears to be” and “conveys the impression” 

provisions of the Child Pornography Prevention 

Act are consistent with the First Amendment ................ 

17 

A. Depictions that are virtually indistinguish- 
able from depictions of real children engaged 

in sexually explicit conduct are unprotected by 

the First Amendment .................................................. 

19 

B. The court of appeals’ reasons for concluding 

that the government does not have authority to 

regulate the depictions at issue are unpersua- 
sive ................................................................................... 27 

C. The provisions at issue are not unconstitutionally 

vague ............................................................................... 40 

D. The provisions at issue are not substantially 

overbroad ....................................................................... 42 

Conclusion ....................................................................................... 45 

TABLE OF AUTHORITIES 

Cases: 

Brandenburg v. Ohio, 395 U.S. 444 (1969) ........................ 

31 

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ............ 

17, 43, 44 

Burke v. State, 27 S.W.3d 651 (Tex. Ct. App. 2000), 

petition for discretionary review refused, Nos. 00- 

1869 & 00-1870 (Tex. Crim. App. Dec. 6, 2000) ................. 35 

(III) 

IV 

Cases—Continued: Page 

Burson v. Freeman, 504 U.S. 191 (1992) ........................... 

33 

Chaplinsky v. New Hampshire, 315 U.S. 568 

(1942) ........................................................................................ 19 

Erie v. Pap’s A.M., 529 U.S. 277 (2000) ............................. 

25, 33 

Giboney v. Empire Storage & Ice Co., 336 U.S. 490 

(1949) ........................................................................................ 30 

Ginzburg v. United States, 383 U.S. 463 (1966) ............... 

18 

Grayned v. City of Rockford, 408 U.S. 104 

(1972) ........................................................................................ 40 

Jenkins v. Georgia, 418 U.S. 153 (1974) ............................ 

25 

Kansas v. Hendricks, 521 U.S. 346 (1997) ........................ 

32 

Kolender v. Lawson, 461 U.S. 352 (1983) .......................... 

40 

Miller v. California, 413 U.S. 15 (1973) ...................... 

2, 19, 42 

People v. Chastain, 733 P.2d 1206 (Colo. 1987) ................ 

30 

New York v. Ferber, 458 U.S. 747 (1982) ....................... 

passim 

Osborne v. Ohio, 495 U.S. 103 (1990) ....................... 

3, 24, 31, 35 

Renton v. Playtime Theaters, Inc., 475 U.S. 41 

(1986) ........................................................................................ 33 

Roth v. United States, 354 U.S. 476 (1957) ........................ 

19 

Texas v. Cobb, No. 99-1702 (Apr. 2, 2001) ......................... 

29 

Turner Broad. Sys., Inc. v. FCC, 520 U.S. 

180 (1997) ................................................................................. 

33 

United States v. Acheson, 195 F.3d 645 (11th Cir. 

1999) ............................................................... 

18, 22, 23, 26, 41, 45 

United States v. Coleman, No. ARMY 9801240, 

2001 WL 55523 (Army Ct. Crim. App. Jan. 24, 2001) ..... 

38 

United States v. Fox, No. 00-40034, 2001 WL 

370045 (5th Cir. Apr. 13, 2001) ............................. 

18, 22, 24, 26, 

27, 37, 41, 44-45 

United States v. Hilton, 167 F.3d 61 (1st Cir.), 
cert. denied, 528 U.S. 844 (1999) .......................... 

18, 22, 23, 24, 

25, 26, 31, 41, 45 

V 

Cases—Continued: Page 

United States v. Kimbrough, 69 F.3d 723 (5th 

Cir. 1995), cert. denied, 517 U.S. 1157 (1996) ................... 

37 

United States v. Mento, 231 F.3d 912 (4th Cir. 

2000), petition for cert. pending, No. 00-8114 ......... 

18, 22, 23, 

24, 25, 27, 29, 41 
United States v. Playboy Entm’t Group, Inc., 529 

U.S. 803 (2000) ........................................................................... 

19 

United States v. Snyder, 189 F.3d 640 (7th Cir. 

1999), cert. denied, 527 U.S. 1097 (2000) ........................... 

35 

United States v. Vig, 167 F.3d 443 (8th Cir.), cert. 

denied, 528 U.S. 859 (1999) .................................................. 

38 

United States v. X-Citement Video, Inc., 513 U.S. 

64 (1994) ................................................................................... 

41 

Constitution and statutes: 

U.S. Const.: 

Amend. I .............................................................................. 

passim 

Amend. V (Due Process Clause) ......................................... 

40 

Child Pornography Prevention Act of 1996, Pub. L. 

No. 104-208, Div. A, Tit. I, § 121, 110 Stat. 

3009-26 to 3009-31 .................................................................. 

4 

18 U.S.C. 2251 (1994 & Supp. V 1999) ........................... 

3 

18 U.S.C. 2251 note (Supp. V 1999) ..................... 

4-5, 6, 18, 

21, 22, 23, 40 
18 U.S.C. 2252 (1994 & Supp. V 1999) ........................... 

3 

18 U.S.C. 2252A (Supp. V 1999) ............................. 

17, 18, 24 

18 U.S.C. 2252A(a) (Supp. V 1999) ................................ 

6 

18 U.S.C. 2252A(a)(1)–(5) (Supp. V 1999) ..................... 

41 

18 U.S.C. 2252A(b)(1) (Supp. V 1999) ........................... 

8 

18 U.S.C. 2252A(b)(2) (Supp. V 1999) ........................... 

8 

18 U.S.C. 2252A(c) (Supp. V 1999) .......... 

7, 9, 12, 26, 28, 44 

18 U.S.C. 2252(A)(c)(3) (Supp. V 1999) ......................... 

25 

18 U.S.C. 2256(8)(A) (Supp. V 1999) .............................. 
6 

18 U.S.C. 2256(8)(B) (Supp. V 1999) .............................. 
7, 17 

18 U.S.C. 2256(8)(C) (Supp. V 1999) .............................. 
6 

18 U.S.C. 2256(8)(D) (Supp. V 1999) .............................. 7, 18 

VI 

Statutes—Continued: Page 

Child Protection Act of 1984, Pub. L. No. 98-282, 

98 Stat. 204: 

§ 4(3), 98 Stat. 204 ............................................................. 

2 

§ 5(a)(1), 98 Stat. 205 ........................................................ 

2 

§ 5(a)(5), 98 Stat. 205 ........................................................ 

2 

Child Protection and Obscenity Enforcement Act of 

1988, Pub. L. No. 100-690, § 7513, 102 Stat. 4487 

(18 U.S.C. 2257) ...................................................................... 

3, 41 

Child Protection Restoration and Penalties Enhance- 
ment Act of 1990, Pub. L. No. 101-647, § 323(a)(2), 

104 Stat. 4818 .......................................................................... 

3 

Protection of Children Against Sexual Exploitation 

Act of 1977, Pub. L. No. 95-225, 92 Stat. 7 ........................ 

2 

§ 2(a), 92 Stat. 8 ................................................................. 
2 

18 U.S.C. 2256(1) ........................................................... 
7 

18 U.S.C. 2256(2) ........................................................... 
7, 26 

18 U.S.C. 2256(2)(A) ..................................................... 
43 

18 U.S.C. 2256(2)(E) ..................................................... 
43 

Protection of Children from Sexual Predators Act 
of 1998, Pub. L. No. 105-314, § 203(a)(2), 112 
Stat. 2978 (18 U.S.C. 2252A(d)(Supp. V 1999)) ................. 
8 

18 U.S.C. 1028(a)(6) (1994 & Supp. V 1999) ......................... 
42 

Ariz. Rev. Stat. Ann. § 13-3555 (West 2000) ........................ 
8 

Del. Code Ann. tit. 11 § 1103(e) (Supp. 2000) ....................... 
8 

Minn. Stat. Ann. § 617.246(f)(2)(iii) (West 2001) ................. 
8 

Mo. Ann. Stat. § 573.035 (West 2001) .................................... 
8 

N.Y. Penal Law § 263.15 (McKinney 1980) .......................... 
19, 27 

Criminal Code, R.S.C., ch. C-46, § 163.1(1)(a)(i) 
(1998) (Can.) ............................................................................ 
9 

Protection of Children Act, 1978, § 7(8), amended 
by Criminal Justice and Public Order Act, 1994, 
§ 84(3)(c)(8) (Eng.) ................................................................. 8-9 

VII 

Miscellaneous: Page 

Ronald Adelman, The Constitutionality of Congres- 
sional Efforts to Ban Computer-Generated Child 
Pornography: A First Amendment Assessment of 
S. 1237, 14 J. Marshall J. Computer & Info. L. 483 
(1996) ................................................................................ 
32, 36, 37 

Attorney General’s Commission on Pornography, 

Final Report (July 1986) ................................................ 

3, 34, 38 

Daniel Campagna & Donald Poffenberger, The 

Sexual Trafficking in Children: An Investigation of 
the Child Sex Trade (1988) .................................................. 

35 
Child Pornography and Pedophilia, S. Rep. No. 537, 
99th Cong., 2d Sess. (1986) ................................ 

3, 35, 36, 38, 39 

Child Pornography Prevention Act of 1995: Hearing 
Before the Senate Comm. on the Judiciary, 104th 
Cong., 2d Sess. (1996) ........................................................ 
passim 

Seth Goldstein, The Sexual Exploitation of Children: 

A Practical Guide To Assessment, Investigation, 
and Intervention (2d ed. 1999) ............................................ 

35, 36 
H.R. Rep. No. 536, 98th Cong., 1st Sess. (1983) .................. 
38 

Kenneth Lanning, Collectors, in Child Pornography 
and Sex Rings (Ann Burgess et al. eds., 1984) ................ 
38, 39 

Shirley O’Brien, Child Pornography (1983) ........................ 
35 

S. Rep. No. 358, 104th Cong., 2d Sess. (1996) ........... 
4, 6, 22, 23, 

24, 37, 39, 44 

Tim Tate, Child Pornography: An Investigation 
(1990) ........................................................................................ 35 

Webster’s Third New International Dictionary 
(1976) ........................................................................................ 42 

In the Supreme Court of the United States 

No. 00-795 

JOHN D. ASHCROFT, ATTORNEY GENERAL 

OF THE UNITED STATES, ET AL., PETITIONERS 

v. 

THE FREE SPEECH COALITION, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE PETITIONERS 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1a-43a) is 
reported at 198 F.3d 1083. The opinion of the district court 
(Pet. App. 50a-65a) is unreported. The order denying re- 
hearing (Pet. App. 44a-49a) is reported at 220 F.3d 1113. 

JURISDICTION 

The judgment of the court of appeals was entered on 
December 17, 1999. A petition for rehearing was denied on 
July 19, 2000 (Pet. App. 44a-45a). On October 10, 2000, 
Justice O’Connor extended the time within which to file a 
petition for a writ of certiorari to and including November 
16, 2000. The petition was filed on that date and was granted 
on January 22, 2001. The jurisdiction of this Court is invoked 
under 28 U.S.C. 1254(1). 

(1) 

2 

CONSTITUTIONAL AND STATUTORY PROVISIONS 
INVOLVED 

The First Amendment to the United States Constitution 
provides that “Congress shall make no law * * * abridging 
the freedom of speech.” The pertinent provisions of the 
Child Pornography Prevention Act of 1996 are reproduced in 
an appendix to the petition for a writ of certiorari. See Pet. 
App. 67a-76a. 

STATEMENT 

1. a. For almost a quarter of a century, Congress has 
sought to combat the harm to children caused by the pro- 
duction and distribution of child pornography. Congress 
first addressed the subject of child pornography in the Pro- 
tection of Children Against Sexual Exploitation Act of 1977, 
Pub. L. No. 95-225, 92 Stat. 7. That Act made it a crime for 
any person to induce a child under 16 years of age to engage 
in “sexually explicit conduct” in order to produce a visual de- 
piction of such conduct. § 2(a), 92 Stat. 8. The 1977 Act also 
made it a crime for any person to distribute for commercial 
gain any obscene depiction of a minor engaged in sexually 
explicit conduct. Ibid. 

In response to this Court’s decision in New York v. 
Ferber, 458 U.S. 747 (1982), which sustained the constitu- 
tionality of a state statute that prohibited the dissemination 
of child pornography that did not satisfy the standards 
for obscenity under Miller v. California, 413 U.S. 15 (1973), 
Congress enacted the Child Protection Act of 1984, Pub. L. 
No. 98-292, §§ 4(3), 5(a)(1) and (5), 98 Stat. 204-205. In that 
Act, Congress eliminated the requirement that the depic- 
tions must be obscene, removed the requirement that the de- 
pictions be distributed for a commercial purpose, and raised 
the age of minority from 16 to 18. 

In 1986, the Attorney General’s Commission on Porno- 
graphy issued a report on child pornography and made 

3 

recommendations for improving federal law enforcement 
efforts. Attorney General’s Commission on Pornography, 
Final Report 405-418, 595-735 (July 1986). That same 
year, the Permanent Subcommittee on Investigations of the 
Senate Committee on Governmental Affairs reported on its 
investigation into the activities of child pornographers and 
pedophiles. See Child Pornography and Pedophilia, S. Rep. 
No. 537, 99th Cong., 2d Sess. (1986). 

Drawing upon the information and recommendations con- 
tained in those reports, Congress enacted the Child Pro- 
tection and Obscenity Enforcement Act of 1988. That law 
adopted the Pornography Commission’s recommendation 
that producers of sexually explicit visual depictions be 
required to create and maintain records of the identities and 
ages of their performers. Pub. L. No. 100-690, § 7513, 102 
Stat. 4487 (adding 18 U.S.C. 2257). See Attorney General’s 
Commission on Pornography, Final Report at 618-623. In 
1990, following the decision in Osborne v. Ohio, 495 U.S. 103 
(1990), which upheld a state prohibition against possession of 
child pornography, Congress amended federal law to pro- 
hibit the possession of visual depictions of children engaged 
in sexually explicit conduct. Child Protection Restoration 
and Penalties Enhancement Act of 1990, Pub. L. No. 101-647, 
§ 323(a)(2), 104 Stat. 4818. 

b. The prohibitions discussed above apply only to visual 
depictions of actual children engaged in sexually explicit 
conduct. See 18 U.S.C. 2251, 2252 (1994 & Supp. V 1999). 
With advances in computer technology, Congress became 
concerned that persons could create visual depictions of 
children engaged in sexual activity that might not involve 
the participation of any actual child, but that would nonethe- 
less pose serious dangers for children. After holding hear- 
ings on that subject, see Child Pornography Prevention Act 
of 1995: Hearing Before the Senate Comm. on the Judiciary, 
104th Cong., 2d Sess. (1996) (Senate Hearing), Congress 

4 

enacted the Child Pornography Prevention Act of 1996 
(CPPA). Pub. L. No. 104-208, Div. A, Tit. I, § 121, 110 Stat. 
3009-26 to 3009-31. As part of that Act, Congress enacted 13 
findings that explain why it enacted the CPPA. The Senate 
Report accompanying the CPPA elaborates on those find- 
ings. S. Rep. No. 358, 104th Cong., 2d Sess. (1996). 

Congress found that “new photographic and computer 
[imaging] technologies make it possible to produce * * * 
visual depictions of what appear to be children engaging in 
sexually explicit conduct that are virtually indistinguishable 
to the unsuspecting viewer from unretouched photographic 
images of actual children engaging in sexually explicit 
conduct.” 18 U.S.C. 2251 note (Supp. V 1999) (Finding 5). 
Congress also found that, even when actual children are 
used, computers can “alter sexually explicit [depictions] in 
such a way as to make it virtually impossible * * * to 
identify individuals, or to determine if the offending material 
was produced using children.” 18 U.S.C. 2251 note (Supp. V 
1999) (Finding 6(A)). The Senate Report describes one 
way that computer images of child pornography are created: 
innocent pictures of children are taken from books, maga- 
zines, catalogs, or videos; the images are then loaded onto a 
computer; and the original pictures are then transformed 
through a process known as “morphing” into pictures de- 
picting children engaged in sexually explicit conduct. S. 
Rep. No. 358, supra, at 15-16. 

Congress considered the development of computer- 
generated child pornography extraordinarily troubling for 
several reasons. First, Congress determined that “child 
pornography is often used as part of a method of seducing 
other children into sexual activity.” 18 U.S.C. 2251 note 
(Supp. V 1999) (Finding 3). In particular, “a child who is 
reluctant to engage in sexual activity with an adult * * * 
can sometimes be convinced by viewing depictions of other 
children ‘having fun’ participating in such activity.” 18 

5 

U.S.C. 2251 note (Supp. V 1999) (Finding 3). Congress found 
that computer-generated images of children engaged in 
sexually explicit conduct can be just as effective in seducing 
children into sexual activity as photographic images of real 
children. 18 U.S.C. 2251 note (Supp. V 1999) (Finding 8). 

Second, Congress found that “child pornography is often 
used by pedophiles and child sexual abusers to stimulate and 
whet their own sexual appetites” and that “such use of child 
pornography can desensitize the viewer to the pathology of 
sexual abuse or exploitation of children, so that it can be- 
come acceptable to and even preferred by the viewer.” 18 
U.S.C. 2251 note (Supp. V 1999) (Finding 4). Congress found 
that child pornography can have that effect, regardless 
of whether the pornography takes the form of computer- 
generated images or photographs of real children. 18 U.S.C. 
2251 note (Supp. V 1999) (Finding 8). 

Third, because computers can alter sexually explicit depic- 
tions so as to make it “virtually impossible * * * to identify 
individuals, or to determine if the offending material was 
produced using children,” 18 U.S.C. 2251 note (Supp. V 1999) 
(Finding 6(A)), Congress was concerned that the prohibi- 
tions against the distribution and possession of child porno- 
graphy involving real children could become unenforceable. 
As explained in the Senate Report: 

As the technology of computer-imaging progresses, it 
will become increasingly difficult, if not impossible, to 
distinguish computer-generated from photographic 
depictions of child sexual activity. It will therefore be- 
come almost impossible for the Government to meet its 
burden of proving that a pornographic image is of a real 
child. Statutes prohibiting the possession of child por- 
nography produced using actual children would be 
rendered unenforceable and pedophiles who possess 

6 

pornographic depictions of actual children will go free 
from punishment. 

S. Rep. No. 358, supra, at 20. 

Fourth, Congress heard evidence that computer- 
generated images of children engaged in sexually explicit 
conduct are often exchanged for pictures of real children 
engaged in such conduct. Senate Hearing 20, 23, 30, 35, 90. 
Congress learned that, because of that phenomenon, the 
production and distribution of computer-generated child 
pornography helps to sustain the market for the production 
of visual depictions that involve real children. Id. at 91. 

Congress concluded that the government has a 
“compelling” interest in “the elimination of child porno- 
graphy and the protection of children from sexual exploita- 
tion.” 18 U.S.C. 2251 note (Supp. V 1999) (Finding 13). That 
interest, Congress further concluded, extends not only to 
depictions of actual children engaged in sexually explicit 
conduct, but also to depictions that “are virtually indistin- 
guishable to the unsuspecting viewer from photographic 
images of actual children engaging in such conduct.” 18 
U.S.C. 2251 note (Supp. V 1999) (Finding 13). 

c. The CPPA imposes criminal penalties on the knowing 
shipment, receipt, distribution, reproduction, sale, or posses- 
sion of “child pornography.” 18 U.S.C. 2252A(a) (Supp. V 
1999). In provisions that are not at issue here, the CPPA 
defines “child pornography” as “any visual depiction * * * 
of sexually explicit conduct,” where “the production of such 
visual depiction involves the use of a minor engaging in 
sexually explicit conduct,” 18 U.S.C. 2256(8)(A) (Supp. V 
1999), or “has been created, adapted, or modified to appear 
that an identifiable minor is engaging in sexually explicit 
conduct,” 18 U.S.C. 2256(8)(C) (Supp. V 1999). In the provis- 
ions at issue here, the CPPA also defines child pornography 
as any visual depiction of sexually explicit conduct that “is, 

7 

or appears to be, of a minor engaging in sexually explicit 
conduct,” 18 U.S.C. 2256(8)(B) (Supp. V 1999) (emphasis 
added), or “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)(D) 
(Supp. V 1999) (emphasis added). The “appears to be” and 
the “conveys the impression” provisions respond to Con- 
gress’s findings concerning the dangers to children posed by 
computer-generated images of children engaged in sexually 
explicit conduct. 

As under prior law, the CPPA defines “sexually explicit 
conduct” as “actual or simulated - (A) sexual intercourse 

* * * ; (B) bestiality; (C) masturbation; (D) sadistic or maso- 
chistic abuse; or (E) lascivious exhibition of the genitals or 
pubic area of any person.” 18 U.S.C. 2256(2). Likewise, 
“minor” remains defined as “any person under the age of 
eighteen years.” 18 U.S.C. 2256(1). 

The CPPA contains affirmative defenses that limit its 
reach. The Act provides that it shall be an affirmative de- 
fense to a charge of unlawful shipment, receipt, distribution, 
reproduction, or sale of child pornography that “the alleged 
child pornography was produced using an actual person or 
persons engaging in sexually explicit conduct, * * * each 
such person was an adult at the time the material was 
produced; and * * * 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.” 18 U.S.C. 2252A(c) (Supp. V 1999). A separate 
subsection, added in 1998, provides that it shall be an af- 
firmative defense to a charge of unlawful possession of child 
pornography that the defendant possessed “less than three 
matters containing visual depiction proscribed by that 
paragraph,” and “promptly and in good faith * * * took 

8 

reasonable steps to destroy each such visual depiction,” or 
“reported the matter to a law enforcement agency and 
afforded that agency access to each such visual depiction.” 
Protection of Children from Sexual Predators Act of 1998, 
Pub. L. No. 105-314, § 203(a)(2), 112 Stat. 2978 (codified at 18 
U.S.C. 2252A(d) (Supp. V 1999)). 

A conviction on a charge relating to the shipment, receipt, 
distribution, reproduction, or sale of child pornography 
carries a maximum penalty of 15 years’ imprisonment, unless 
the defendant has a prior conviction relating to child porno- 
graphy, in which case the sentence shall be no less than five 
years’ and no more than 30 years’ imprisonment. 18 U.S.C. 
2252A(b)(1) (Supp. V 1999). A conviction on a charge of pos- 
session of child pornography carries a maximum penalty of 
five years’ imprisonment, unless the defendant has a prior 
conviction relating to child pornography, in which case the 
sentence shall be no less than two years’ and no more than 10 
years’ imprisonment. 18 U.S.C. 2252A(b)(2) (Supp. V 1999).1 

1 Several States have enacted statutes criminalizing depictions that 
appear to be of children engaged in sexual activity. See, e.g., Minn. Stat. 
Ann. § 617.246(f)(2)(iii) (West 2001) (defining pornographic work to mean 
any visual depiction that “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 sexual 
conduct”); Mo. Ann. Stat. § 573.035 (West 2001) (prohibiting the promotion 
of child pornography that “portrays what appears to be a minor as a par- 
ticipant or observer of sexual conduct”); Del. Code Ann. tit. 11 § 1103(e) 
(Supp. 2000) (defining child to mean “any individual who is intended by the 
defendant to appear to be 14 years of age or less”); Ariz. Rev. Stat. Ann. 
§ 13-3555 (West 2000) (forbidding persons depicted as a participant in 
sexual conduct “to masquerade as a minor,” or to produce or distribute 
visual depictions “whose text, title or visual representation depicts a parti- 
cipant in any exploitive exhibition or sexual conduct as a minor even 
though any such participant is an adult”). In addition, England and 
Canada have amended their child pornography laws to reach depictions 
that appear to be of children. See Protection of Children Act, 1978, § 7(8), 

9 

2. After the CPPA was signed into law, the Free Speech 
Coalition and others (respondents) filed suit in the Northern 
District of California against the Attorney General of the 
United States and the United States Department of Justice. 
Pet. App. 3a. The Free Speech Coalition is “a trade associa- 
tion of businesses involved in the production and distribution 
of ‘adult-oriented materials;’ ” the other respondents are a 
publisher of a book on nudism, an artist who paints nudes, 
and a photographer who specializes in erotic photography. 
Ibid. Respondents alleged that the “appears to be” and the 
“conveys the impression” provisions of the CPPA are vague 
and overbroad in violation of the First Amendment. Id. at 
50a, 54a.2 
On cross-motions for summary judgment, the district 
court first determined that respondents have standing to 
raise their claims. Pet. App. 54a-56a. The court noted that, 
because respondents allege that they use only adults in their 
works and that they do not market their works as child 
pornography, their works fall within the Act’s affirmative 
defense in Section 2252A(c). Id. at 54a. The court nonethe- 
less ruled that respondents have standing based on their 
allegations that the challenged prohibitions have caused 
them to refrain from distributing certain works. Id. at 
55a-56a. 

amended by Criminal Justice and Public Order Act, 1994, § 84(3)(c)(8) 
(Eng.) (reaching “pseudo-photograph” created by computer “[i]f the im- 
pression conveyed by a pseudo-photograph is that the person shown is a 
child”); Criminal Code, R.S.C., ch. C-46, § 163.1(1)(a)(i)(1998) (Can.) (ban- 
ning 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 
engaged in explicit sexual activity”). 

2 Respondents also alleged that the CPPA constitutes a prior restraint 
on speech. Pet. App. 50a. The district court rejected that claim, id. at 65a, 
the court of appeals affirmed that ruling, id. at 27a, and that claim is not at 
issue here. 

10 

On the merits, the court concluded that the CPPA is 
“content-neutral,” because it is designed to counteract the 
effect that child pornography has on innocent children and 
not to regulate ideas. Pet. App. 57a-58a. The court there- 
fore reviewed the prohibitions at issue under the standard 
applicable to content-neutral regulations that incidentally 
burden speech. The court held that the prohibitions satisfy 
that standard. The court concluded that the challenged pro- 
visions “clearly advance[] important and compelling govern- 
ment interests: the protection of children from the harms 
brought on by child pornography and the industry that such 
pornography has created.” Id. at 58a. The court further 
concluded that the prohibitions “burden[] no more speech 
than necessary in order to protect children from the harms 
of child pornography.” Id. at 59a. 

The district court also held that the “appears to be” and 
the “convey[s] the impression” prohibitions are not unconsti- 
tutionally overbroad. Pet. App. 63a-64a. The court con- 
cluded that, under a fair reading of the Act and its affirma- 
tive defenses, it is “highly unlikely” that the Act would 
prevent the production of “valuable works.” Id. at 62a-63a. 
The court also held that the CPPA is not unconstitutionally 
vague. Id. at 63a-64a. 

3. The court of appeals reversed. Pet. App. 1a-43a. The 
court agreed with the district court that respondents have 
standing based on respondents’ allegations that they ceased 
distributing certain material because they feared prosecu- 
tion. Id. at 12a. On the merits, the court of appeals held that 
the “appears to be” and “convey[s] the impression” prohibi- 
tions “do not meet the requirements of the First Amend- 
ment.” Id. at 2a. 

a. The court of appeals first held that the CPPA restricts 
speech based on its content, Pet. App. 13a, and that the 
government was therefore required to show that the “ap- 
pears to be” and “convey[s] the impression” provisions are 

11 

narrowly tailored to further a compelling interest. Id. at 15a. 
Finding that those provisions are not supported by a com- 
pelling interest, the court ruled that the government failed 
to sustain that burden. Id. at 15a-23a. 

The court of appeals read New York v. Ferber, 458 U.S. 
747 (1982), to hold that “Congress has no compelling interest 
in regulating sexually explicit materials that do not contain 
visual images of actual children.” Pet. App. 17a. The 
court also drew from Ferber the principle that government 
may not regulate child pornography based on the effect such 
images have on those who view them. Id. at 16a-17a. Apply- 
ing that understanding of Ferber, the court ruled that 
“any victimization of children that may arise from pedo- 
philes’ sexual responses to pornography apparently depict- 
ing children engaging in explicit sexual activity is not a 
sufficiently compelling justification for CPPA’s speech re- 
strictions.” Id. at 19a. The court also concluded that there 
is not a “demonstrated basis to link computer-generated 
images with harm to real children.” Id. at 20a. Absent such 
a link, the court reasoned, “the law does not withstand con- 
stitutional scrutiny.” Ibid. 

The court of appeals next held that the CPPA is unconsti- 
tutionally vague. Pet. App. 23a-24a. It explained that the 
phrases “appears to be” and “convey[s] the impression” are 
“highly subjective” and that a person of ordinary intelligence 
“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.” Id. at 24a. 

The court also held that the CPPA is unconstitutionally 
overbroad. Pet. App. 25a-27a. The court reiterated its 
earlier conclusion that Congress may only regulate depic- 
tions of child pornography that involve real children, and 
then concluded that “the CPPA is insufficiently related” to 
that interest “to justify its infringement of protected 
speech.” Ibid. 

12 

b. Judge Ferguson dissented. Pet. App. 29a-43a. Judge 
Ferguson first faulted the majority for failing to recognize 
the government’s legitimate interests in prohibiting the 
dissemination of images that can be used to seduce children 
into sexual activity, destroying the child pornography mar- 
ket, and ensuring that the prohibitions against the use of real 
children in sexually explicit depictions are not effectively 
undermined. Id. at 32a-35a. Judge Ferguson also criticized 
the majority for “ignor[ing] the fact that child pornography, 
real or virtual, has little or no social value.” Id. at 35a. 
Because “Congress’ interests in destroying the child porno- 
graphy market and in preventing the seduction of minors 
outweigh virtual child pornography’s exceedingly modest 
social value,” id. at 37a-38a, Judge Ferguson concluded, 
“virtual child pornography should join the ranks of real child 
pornography as a class of speech outside the protection of 
the First Amendment.” Id. at 38a. 

Judge Ferguson also disagreed with the majority’s hold- 
ing that the CPPA is unconstitutionally overbroad. Pet. 
App. 38a-41a. In his view, because the Act targets only 
those images that are “indistinguishable” from unretouched 
photographic images of actual children, it does not reach 
“everyday artistic expressions like paintings, drawings, and 
sculptures that depict youthful looking subjects in a sexual 
manner.” Id. at 39a. Judge Ferguson also noted that one of 
the Act’s affirmative defenses, in Section 2252A(c), would 
shield photographic images of youthful-looking adults in 
sexual poses, so long as they are not marketed as child 
pornography. Id. at 40a. Any possible impermissible 
applications of the CPPA, Judge Ferguson explained, should 
be resolved on a case-by-case basis. Id. at 40a-41a. 

Finally, Judge Ferguson concluded that the CPPA is not 
unconstitutionally vague. Pet. App. 41a-43a. As he read the 
Act, the inquiry into whether an image appears to be a minor 
is an objective one: The question is “whether an unsus- 

13 

pecting viewer would consider the depiction to be an actual 
individual under the age of eighteen engaging in sexual 
activity.” Id. at 42a (citation omitted). Judge Ferguson 
noted that the CPPA’s scienter requirement provides an 
additional safeguard against arbitrary enforcement. Id. at 
42a-43a. 

c. The government’s petitions for rehearing and rehear- 
ing en banc were denied. Pet. App. 44a-45a. Judge 
Ferguson would have granted rehearing and recommended 
granting the suggestion for rehearing en banc. Id. at 44a. 
Judge Wardlaw (joined by Judges O’Scannlain and T.G. 
Nelson) dissented from the denial of rehearing en banc. Id. 
at 45a-49a. Agreeing with the points made in Judge 
Ferguson’s dissent, Judge Wardlaw concluded that the panel 
majority had impermissibly “elevate[d] the free speech 
rights of pedophiles over the compelling governmental in- 
terest in protecting our children.” Id. at 49a. 

SUMMARY OF ARGUMENT 

The Child Pornography Prevention Act of 1996 (CPPA) is 
the product of Congress’s determination that advances in 
computer technology make possible the creation of images 
that are virtually indistinguishable from depictions of real 
children engaged in sexually explicit conduct. The statute 
embodies Congress’s judgment, based on abundant evidence, 
that such depictions are intrinsically related to the sexual 
abuse of real children. Under the analysis applied in New 
York v. Ferber, 458 U.S. 747 (1982), that form of child porno- 
graphy, like child pornography involving real children, is 
unprotected by the First Amendment. The court of appeals 
therefore erred in facially invalidating the prohibitions 
against the dissemination and possession of such depictions. 
Indeed, four courts of appeals have rejected First Amend- 
ment challenges to those prohibitions. 

14 

A. In Ferber, the Court held that visual depictions of 
actual children engaged in sexual activity constitute a 
distinct category of speech that is unprotected by the First 
Amendment. Three principal considerations led the Court to 
reach that conclusion: The government’s interest in pro- 
tecting children from sexual abuse is “compelling.” 458 U.S. 
at 756-757. The distribution of depictions of children en- 
gaged in sexually explicit conduct is “intrinsically related” to 
the sexual abuse of children. Id. at 759. And the value of 
such depictions is “exceedingly modest, if not de minimis.” 
Id. at 762. 

Those same considerations lead to the conclusion that the 
material covered by the CPPA is also unprotected. First, 
the governmental interest at stake is the “compelling” one of 
protecting children from sexual exploitation. Second, the 
depictions at issue are “intrinsically related” to the sexual 
abuse of children: Pedophiles use such depictions to seduce 
other children into sexual activity and to whet their appe- 
tites for sexual abuse; the existence of such material makes 
it far more difficult to establish that a pornographic image is 
of a real child, endangering the government’s ability to en- 
force existing child pornography laws; and such material is 
exchanged for pictures of real children engaged in sexually 
explicit conduct, and adds fuel to the underground market 
for child pornography. Finally, the value of depictions of 
children engaged in sexually explicit conduct is exceedingly 
modest, if not de minimis. Thus, like depictions of real 
children engaged in sexually explicit conduct, depictions that 
are virtually indistinguishable from such depictions are 
categorically unprotected by the First Amendment. 

For essentially the same reasons, even if the provisions at 
issue triggered strict scrutiny, they would still be consti- 
tutional. The CPPA covers an exceedingly narrow range of 
depictions of children engaging in sexually explicit conduct. 
The CPPA substantially furthers in a number of respects the 

15 

government’s compelling interest in preventing the sexual 
exploitation of children. And there are no less restrictive 
means of advancing the government’s compelling interest in 
protecting children from sexual abuse. The CPPA therefore 
survives strict First Amendment scrutiny as well. 

B. The court of appeals’ reasons for concluding that the 
prohibitions at issue are not supported by a compelling in- 
terest are unpersuasive. Contrary to the court of appeals’ 
understanding, Ferber did not hold that the government’s 
sole compelling interest is in regulating depictions involving 
real children. The state statute at issue in Ferber applied 
only to depictions of sexual conduct by actual children, and at 
the time of the decision in that case, the technology for pro- 
ducing computer-generated images that are virtually indisti- 
nguishable from photographs of real children had not yet 
developed. The Court therefore had no occasion to decide 
whether the dangers to children associated with new com- 
puter technology justify prohibitions like those enacted in 
the CPPA. Under the legal analysis the Court applied in 
deciding that child pornography involving real children is not 
protected by the First Amendment, however, the child por- 
nography at issue here is also unprotected by the First 
Amendment. 

The court of appeals also concluded that the First Amend- 
ment precludes the government from relying on interests 
that depend on the effect of the material on the audience. 
But the government’s interest in ensuring that the prohibi- 
tions against child pornography depicting real children are 
not rendered unenforceable does not depend on the effect of 
the material on the audience. The same is true of the 
government’s interest in preventing virtual child porno- 
graphy from fueling the market for child pornography 
involving real children. The court of appeals simply ignored 
those vital interests. 

16 

Moreover, Congress’s interest in preventing pedophiles 
from using child pornography to seduce children into per- 
forming sexual acts legitimately rests on Congress’s judg- 
ment that child pornography is a common tool of crime. It is 
true that the success of child pornography as a tool of crime 
depends on its effect on the children who view it. But there 
is no First Amendment right to distribute such material to 
children or, more generally, to use speech to facilitate a 
crime. 

Congress also legitimately considered the fact that pedo- 
philes use child pornography to whet their own appetites for 
sexual abuse. Regulating speech based on its potential to 
incite unlawful conduct ordinarily raises First Amendment 
concerns. But in this case, the unusual vulnerability of 
children, the secretive nature of child abuse, and the de 
minimis value of the speech, overcome such concerns. In 
any event, the three other independent justifications for the 
prohibitions at issue are more than sufficient to sustain their 
constitutionality. 

The court of appeals also concluded that Congress had 
failed to establish a sufficient factual link between child 
pornography and sexual abuse. The court, however, failed to 
accord the deference to Congress’s findings required by this 
Court’s decisions. Moreover, the court ignored abundant 
evidence that supports Congress’s findings. 

C. The CPPA is not unconstitutionally vague. Persons of 
ordinary intelligence can discern whether a depiction is 
virtually indistinguishable from a photograph of a real child 
engaged in sexually explicit conduct. Contrary to the court 
of appeals’ view, that statutory standard is objective rather 
than subjective. The question is whether a reasonable 
unsuspecting viewer would consider the depiction to be of an 
actual individual under the age of 18 engaged in sexual 
activity. That question can be readily answered in the vast 
majority of cases based on the physical characteristics of the 

17 

persons depicted and the way in which the material is 
promoted. The Act’s requirement that any violation must be 
knowing further diminishes any vagueness concern. 

D. Finally, the CPPA is not unconstitutionally overbroad. 
The statute’s “legitimate reach” plainly “dwarfs its arguably 
impermissible applications.” Ferber, 458 U.S. at 773. The 
statute is aimed at hard core child pornography and does not 
apply to innocuous images of naked children. Nor does it 
reach drawings, cartoons, sculptures, or paintings depicting 
youthful persons in sexually explicit poses. There may be a 
limited class of cases in which it might be necessary to use 
material covered by the CPPA in order to produce educa- 
tional, medical, or artistic works. But there is no reason to 
think that the “arguably impermissible applications of the 
statute amount to more than a tiny fraction of the materials 
within the statute’s reach.” Ferber, 458 U.S. at 773. In these 
circumstances, “whatever overbreadth may exist should be 
cured through case-by-case analysis of the fact situations to 
which its sanctions, assertedly, may not be applied.” Id. at 
773-774 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615- 
616 (1973)). 

ARGUMENT 

THE “APPEARS TO BE” AND “CONVEYS THE IM- 
PRESSION” PROVISIONS OF THE CHILD PORNO- 
GRAPHY PREVENTION ACT ARE CONSISTENT 
WITH THE FIRST AMENDMENT 

Two central provisions of the CPPA are at issue here. 
The first prohibits the dissemination and possession of any 
visual depiction that “appears to be[] of a minor engaging 
in sexually explicit conduct.” 18 U.S.C. 2252A, 2256(8)(B) 
(Supp. V 1999). The other prohibits the dissemination and 
possession of any visual depiction that is “advertised, pro- 
moted, presented, described, or distributed in such a manner 
that conveys the impression that the material is or contains a 

18 

visual depiction of a minor engaging in sexually explicit 
conduct.” 18 U.S.C. 2252A, 2256(8)(D) (Supp. V 1999). The 
court of appeals in this case invalidated both prohibitions 
on First Amendment grounds. That ruling conflicts with the 
decisions of four other circuits. See United States v. Hilton, 
167 F.3d 61 (1st Cir.), cert. denied, 528 U.S. 844 (1999); 
United States v. Acheson, 195 F.3d 645 (11th Cir. 1999); 
United States v. Mento, 231 F.3d 912 (4th Cir. 2000), petition 
for cert. pending, No. 00-8114; United States v. Fox, No. 00- 
40034, 2001 WL 370045 (5th Cir. Apr. 13, 2001). 

The court of appeals erred in invalidating the “appears 
to be” and “conveys the impression” prohibitions. Congress 
intended for both prohibitions to reach a narrow category of 
material—depictions that are “virtually indistinguishable 
to the unsuspecting viewer from unretouched photographic 
images of actual children engaging in sexually explicit con- 
duct.” 18 U.S.C. 2251 note (Supp. V 1999) (Finding 5); see 
also 18 U.S.C. 2251 note (Supp. V 1999) (Findings 8, 13).3 As 
we now demonstrate, that limited category of material is not 
protected by the First Amendment; the challenged prohibi- 
tions are constitutional even if they trigger strict scrutiny; 
and the prohibitions are neither unconstitutionally vague nor 
substantially overbroad. 

3 The principal difference between the two provisions is that the 
“conveys the impression” provision requires the jury to assess the 
material at issue in light of the manner in which it is promoted. Thus, 
under the “conveys the impression” provision, in close cases, a jury may 
find that the material at issue is child pornography based on the way it is 
promoted, even if the material might not constitute child pornography if 
promoted in a different manner. Cf. Ginzburg v. United States, 383 U.S. 
463, 474-476 (1966). 

19 

A. Depictions That Are Virtually Indistinguishable From 

Depictions Of Real Children Engaged In Sexually 

Explicit Conduct Are Unprotected By The First 

Amendment 

1. Legislation that restricts speech based on its content 
is ordinarily subject to strict scrutiny and may be upheld 
only if it is narrowly tailored to further a compelling interest. 
United States v. Playboy Entm’t Group, 529 U.S. 803, 813 
(2000). There are, however, “certain well-defined and nar- 
rowly limited classes of speech, the prevention and punish- 
ment of which have never been thought to raise any Consti- 
tutional problem,” and “[t]hese include the lewd and ob- 
scene.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571- 
572 (1942) (footnote omitted). “[S]uch utterances are no 
essential part of any exposition of ideas, and are of such 
slight social value as a step to truth that any benefit that 
may be derived from them is clearly outweighed by the 
social interest in order and morality.” Id. at 572. 

In Roth v. United States, 354 U.S. 476, 485 (1957), the 
Court expressly held that “obscenity is not within the area of 
constitutionally protected speech or press.” In Miller v. 
California, 413 U.S. 15 (1973), the Court reaffirmed that 
holding. Id. at 23-24. Miller also defined the category of ex- 
pression that is unprotected as works which, taken as a 
whole, appeal to the prurient interest, portray sexual con- 
duct in a patently offensive way, and do not have any serious 
literary, artistic, political, or scientific value. 

Id. at 24. 

In New York v. Ferber, 458 U.S. 747 (1982), the Court held 
that visual representations of sexual performances by chil- 
dren under 16 years of age, see N.Y. Penal Law § 263.15 
(McKinney 1980), are also “without the protection of the 
First Amendment.” 458 U.S. at 764. The Court concluded 
that such child pornography lacks First Amendment pro- 
tection whether or not it is obscene under Miller. Id. at 761, 
764-765. Three principal considerations led the Court to hold 

20 

that child pornography constitutes a distinct category of 
unprotected speech. 

First, the government’s “interest in ‘safeguarding the 
physical and psychological well-being of a minor’ is ‘com- 
pelling,’ ” 458 U.S. at 756-757 (citation omitted) (emphasis 
added). Indeed, “[t]he prevention of sexual exploitation and 
abuse of children constitutes a government objective of 
surpassing importance.” Id. at 757. Second, the “distri- 
bution of photographs and films depicting sexual activity by 
juveniles is intrinsically related to the sexual abuse of 
children.” Id. at 759 (emphasis added). “[T]he materials pro- 
duced are a permanent record of the children’s participation 
and the harm to the child is exacerbated by their cir- 
culation.” Ibid. Moreover, “the distribution network for 
child pornography must be closed if the production of 
material which requires the sexual exploitation of children is 
to be effectively controlled.” Ibid. Third, “[t]he value of 
permitting live performances and photographic reproduc- 
tions of children engaged in lewd sexual conduct is exceed- 
ingly modest, if not de minimis.” Id. at 762 (emphasis 
added). It would be “unlikely,” the Court observed, “that 
visual depictions of children performing sexual acts or 
lewdly exhibiting their genitals would often constitute an 
important and necessary part of a literary performance or 
scientific or educational work.” Id. at 762-763. 

Based principally on those three considerations, the Court 
concluded that live performances or photographic reproduc- 
tions of children engaged in sexually explicit conduct are 
unprotected by the First Amendment. 458 U.S. at 764. The 
Court explained that, because “the evil to be restricted so 
overwhelmingly outweighs the expressive interests, if any, 
at stake, * * * it is permissible to consider these materials 
as without the protection of the First Amendment.” Id. at 
763-764. 

21 

2. The prohibitions at issue here restrict a category of 
child pornography that was not at issue in Ferber— 
depictions that are “virtually indistinguishable to the 
unsuspecting viewer from unretouched photographic images 
of actual children engaging in sexually explicit conduct.” 18 
U.S.C. 2251 note (Supp. V 1999) (Finding 5). The three con- 
siderations that led the Court to hold that child pornography 
involving real children is unprotected, however, lead to 
the same conclusion here. Prohibiting the distribution of 
material that is virtually indistinguishable from photographs 
of actual children engaging in sexually explicit conduct 
is supported by a “compelling interest” in preventing the 
sexual abuse of children, 458 U.S. at 756; the dissemination 
of such material is “intrinsically related” to the sexual abuse 
of children, id. at 759; and the value of such material is 
“exceedingly modest, if not de minimis,” id. at 762. Thus, as 
Judge Ferguson stated in his dissenting opinion below, such 
“child pornography should join the ranks of * * * child 
pornography [involving real children] as a class of speech 
outside the protection of the First Amendment.” Pet. 
App. 38a. 

a. Congress identified the interest underlying the pro- 
hibitions at issue here as “the protection of children from 
sexual exploitation.” 18 U.S.C. 2251 note (Supp. V 1999) 
(Finding 13). That is the same interest that supported the 
prohibition at issue in Ferber. As explained in Ferber, that 
interest is one of “surpassing importance.” 458 U.S. at 757. 

b. The distribution and possession of material that is 
virtually indistinguishable from photographs of real children 
engaged in sexually explicit conduct is also “intrinsically re- 
lated to the sexual abuse of children.” Ferber, 458 U.S. at 
759. There are at least four ways in which the existence of 
such material fosters the sexual abuse of children. 

First, as Congress found, “child pornography is often used 
as part of a method of seducing other children into sexual 

22 

activity.” 18 U.S.C. 2251 note (Supp. V 1999) (Finding 3). 
“[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.” 18 
U.S.C. 2251 note (Supp. V 1999) (Finding 3). 

The Senate Report elaborated on that concern: 

Child molesters and pedophiles use child pornography to 
convince potential victims that the depicted sexual 
activity is a normal practice; that other children regu- 
larly participate in sexual activities with adults or peers. 
Peer pressure can have a tremendous effect on children, 
helping to persuade a child that participating [in] sexual 
activity such as that depicted in the material is “all 
right.” 

S. Rep. No. 358, supra, at 13-14. Pedophiles and child moles- 
ters thus use child pornography “to break down the resis- 
tance and inhibitions of their victims or targets of molesta- 
tion.” Id. at 13. 

As Congress found, the government’s interest in pre- 
venting the seduction of children through the use of child 
pornography is not limited to images of actual children en- 
gaged in sexual activity. Rather, “the effect of visual de- 
pictions of child sexual activity * * * on a child where the 
material is being used as a means of seducing or breaking 
down the child’s inhibitions to sexual abuse or exploitation, is 
the same whether the child pornography consists of photo- 
graphic depictions of actual children or visual depictions 
produced wholly or in part by electronic, mechanical, or 
other means, * * * which are virtually indistinguishable to 
the unsuspecting viewer from photographic images of actual 
children.” 18 U.S.C. 2251 note (Supp. V 1999) (Finding 8); 
accord Fox, 2001 WL 370045, at *4; Mento, 231 F.3d at 920; 
Acheson, 195 F.3d at 649; Hilton, 167 F.3d at 69. 

23 

Second, Congress found that “child pornography is often 
used by pedophiles and child sexual abusers to stimulate and 
whet their own sexual appetites, and as a model for sexual 
acting out with children.” 18 U.S.C. 2251 note (Supp. V 
1999) (Finding 4). “[S]uch use of child pornography,” Con- 
gress determined, “can desensitize the viewer to the pathol- 
ogy of sexual abuse or exploitation of children, so that it can 
become acceptable to and even preferred by the viewer.” 18 
U.S.C. 2251 note (Supp. V 1999) (Finding 4). Child porno- 
graphy thus “encourages the activities of child molesters and 
pedophiles.” S. Rep. No. 358, supra, at 12. Again, Congress 
found that “the effect of visual depictions of child sexual 
activity on a child molester or pedophile using that material 
to stimulate or whet his own sexual appetites, * * * is the 
same whether the child pornography consists of photo- 
graphic depictions of actual children or visual depictions 
produced wholly or in part by electronic, mechanical, or 
other means” that are “virtually indistinguishable” from 
images of actual children. 18 U.S.C. 2251 note (Supp. V 
1999) (Finding 8); accord Mento, 231 F.3d at 920; Acheson, 
195 F.3d at 649; Hilton, 167 F.3d at 69. 

Third, because computers can alter sexually explicit 
depictions so as to make it “virtually impossible * * * to 
identify individuals, or to determine if the offending material 
was produced using children,” 18 U.S.C. 2251 note (Supp. V 
1999), Congress was concerned that the government would 
be unable to meet its burden of proving that a pornographic 
image is of a real child. S. Rep. No. 358, supra, at 20. In 
particular, because computers can produce images that are 
virtually indistinguishable from images of real children, a 
defendant charged with distributing or possessing images of 
real children could almost always argue that the government 
failed to prove beyond a reasonable doubt that the images 
were of real children. Id. at 16. That “built-in reasonable 
doubt argument,” ibid., could eventually “render[] unen- 

24 

forceable” the prohibitions against the distribution or pos- 
session of child pornography produced using actual children. 
Id. at 20. See also Mento, 231 F.3d at 920. Thus, as the Fifth 
Circuit recently explained in upholding the constitutionality 
of Section 2252A, “Congress has advanced a powerful new 
rationale for the necessity of the ‘appears to be’ language in 
§ 2252A: the need to address the law enforcement problem 
created by tremendous advances in computer technology 
since Ferber and Osborne were decided, advances that have 
greatly exacerbated the already difficult prosecutorial bur- 
den of proving that an image is of a real child.” Fox, 2001 
WL 370045, at *5 (footnote omitted); cf. Ferber, 458 U.S. 
at 765-766 & n.19 (holding that a State may prohibit the 
distribution of child pornography produced outside the State 
in part because “[i]t is often impossible to determine where 
such material is produced”). 

Fourth, computer-generated images of children engaged 
in sexually explicit conduct are often exchanged for pictures 
of real children engaged in such conduct, and they add fuel to 
the underground market in child pornography. Senate 
Hearing 91 (testimony of Bruce A. Taylor). By prohibiting 
dissemination and possession of computer-generated images, 
the CPPA helps to stamp out the market for child porno- 
graphy involving real children. Hilton, 167 F.3d at 73; see 
also Fox, 2001 WL 370045, at *4, *5; cf. Osborne, 495 U.S. at 
110-111. 

c. While the harm caused by the material at issue here is 
great, its value “is exceedingly modest, if not de minimis.” 
Ferber, 458 U.S. at 762. It is “unlikely that visual depictions 
of children performing sexual acts or lewdly exhibiting their 
genitals would often constitute an important and necessary 
part of a literary performance or scientific or educational 
work.” Id. at 762-763. 

To the extent that it might be necessary for literary, 
scientific, or educational purposes to depict children engag- 

25 

ing in such conduct, the depictions can be created in a man- 
ner that is consistent with the CPPA. Because the Act 
applies only to depictions that are virtually indistinguishable 
from photographs of real children, it does not apply to draw- 
ings, cartoons, sculptures, or paintings that depict youthful- 
looking persons in sexual poses. Hilton, 167 F.3d at 72; 
Mento, 231 F.3d at 922. The Act also affords an affirmative 
defense to persons who disseminate visual depictions involv- 
ing adults who may appear to be children, provided that such 
distributers do 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.” 18 U.S.C. 2252A(c)(3) 
(Supp. V 1999). 

In addition, the Act does not apply to visual materials in 
which sexually explicit conduct by children is understood to 
be taking place, as long as the sexually explicit conduct is not 
itself visually depicted. Cf. Jenkins v. Georgia, 418 U.S. 153, 
161 (1974). Significantly, moreover, like the state statute at 
issue in Ferber, the CPPA does not ban the dissemination of 
any particular message concerning the sexuality of children; 
it simply bans the use of child pornography in connection 
with that or any other message. Ferber, 458 U.S. at 763; 
cf. Erie v. Pap’s A.M., 529 U.S. 277, 293 (2000) (plurality 
opinion) (ban on public nudity has the effect of limiting one 
particular means of expressing the kind of erotic message 
being disseminated at nude dancing establishments). The 
First Amendment interest in disseminating material that is 
covered by the CPPA is therefore marginal at best. See id. 
at 294 (noting that “few of us would march our sons and 
daughters off to war to preserve the citizen’s right to see 
specified anatomical areas exhibited at establishments like 
Kandyland”) (internal quotation marks omitted). 

d. In sum, the harms caused by depictions that are 
virtually indistinguishable from photographs of actual 

26 

children involved in sexually explicit conduct “overwhelm- 
ingly outweigh[] the expressive interests, if any.” Ferber, 
458 U.S. at 763-764. Thus, under the analysis set forth in 
Ferber, such child pornography is “without the protection of 
the First Amendment.” Id. at 764; see also Fox 2001 WL 
370045, at * 6 (because depictions that appear to be of actual 
children engaged in sexual conduct are properly considered 
child pornography, “they are outside the protection of the 
First Amendment and may be freely regulated even to the 
extent of an outright ban”); Acheson, 195 F.3d at 650 (quot- 
ing Hilton, 167 F.3d at 69) (“As ‘it is well-settled that child 
pornography, an unprotected category of expression identi- 
fied by its content, may be freely regulated,’ * * * 
Appellant’s facial challenge fails.”). 

3. Because the category of speech regulated by the pro- 
hibitions challenged by respondents is unprotected by the 
First Amendment, those prohibitions do not trigger strict 
scrutiny. The same considerations that demonstrate that the 
speech at issue here is unprotected, however, also show that 
the prohibitions are narrowly tailored to further a compell- 
ing interest. Thus, even if those prohibitions triggered strict 
scrutiny, they would still be constitutional. 

The CPPA covers an exceedingly narrow range of depic- 
tions of children engaging in sexually explicit conduct, see 18 
U.S.C. 2256(2). It substantially furthers in a number of re- 
spects the government’s compelling interest in preventing 
the sexual exploitation and abuse of children. In addition, 
the statute provides for an affirmative defense that shields 
distributors of such images from criminal liability if the 
depictions they distribute are made using adult performers 
and the distributor does not advertise, market, or otherwise 
hold out the depiction to be of children. 18 U.S.C. 2252A(c) 
(Supp. V 1999). And there are no less restrictive means of 
advancing the government’s compelling interest in protect- 
ing children from the harmful uses of the depictions covered 

27 

by the statute. Relying on these same basic considerations, 
the Fourth and Fifth Circuits have held that the CPPA 
satisfies strict scrutiny. Mento, 231 F.3d at 918-921; Fox, 
2001 WL 370045, at *3-*6. 

B. The Court Of Appeals’ Reasons For Concluding That 

The Government Does Not Have Authority To 

Regulate The Depictions At Issue Are Unpersuasive 

The court of appeals did not question our submission that 
the visual depictions at stake in this case have little, if any, 
value. It held, however, that the government’s interests are 
not sufficiently compelling to justify restrictions on those 
depictions. See Pet. App. 15a-23a. That holding rests on 
three fundamental legal errors. 

1. First, the court of appeals read Ferber to hold that 
Congress “has no compelling interest in regulating sexually 
explicit materials that do not contain visual images of actual 
children.” Pet. App. 17a. Nothing in Ferber, however, prev- 
ents Congress from addressing the serious dangers to child- 
ren posed by child pornography that is virtually indis- 
tinguishable from child pornography involving real children. 
The statute before the Court in Ferber applied only to de- 
pictions of sexual performances by actual children. See N.Y. 
Penal Law § 263.15 (McKinney 1980). Moreover, at the time 
of Ferber, the technology for producing computer-generated 
images that are virtually indistinguishable from photographs 
of real children had not yet developed. The Court in Ferber 
therefore had no occasion to decide whether the new dangers 
to children associated with computer technology could jus- 
tify prohibitions like those at issue here. As the Fourth 
Circuit has explained, “Ferber necessarily dealt only with 
depictions of actual children, long before virtual porno- 
graphy became an issue.” Mento, 231 F.3d at 919. 

The specific statements from Ferber cited by the court of 
appeals are not to the contrary. The court of appeals relied 

28 

on the statement in Ferber that the government’s interest is 
“limited to works that visually depict explicit sexual conduct 
by children below a specified age.” Pet. App. 15a-16a (quot- 
ing Ferber, 458 U.S. at 764 (emphasis in Ferber)). That 
sentence, however, does not draw a distinction between 
pictures of real children and pictures of persons who appear 
to be children, for both sorts of pictures “visually depict” 
sexual conduct by children. Indeed, in a footnote to the very 
statement cited by the court of appeals, the Court in Ferber 
specifically noted, without any suggestion that such laws are 
invalid, that two States had defined a child as “a person 
under age 16 or who appears as a prepubescent,” and one 
State had defined a child as “one who is or appears to be 
under 16.” Ferber, 458 U.S. at 764 n.17. 

The court of appeals also relied on a statement in Ferber 
that “if it were necessary for literary or artistic value, a 
person over the statutory age who perhaps looked younger 
could be utilized.” Pet. App. 16a (quoting Ferber, 458 U.S. at 
763). But that statement merely described one option 
available under the New York law before the Court; it was 
not a holding that the First Amendment protects the dis- 
semination of images that are virtually indistinguishable 
from photographs of real children engaged in sexually ex- 
plicit conduct. That question was not involved in the case. 
Moreover, as already discussed (see p. 25, supra), the CPPA 
permits persons to distribute works that use adults who 
appear younger as long as the depictions are not advertised, 
promoted, presented, described, or distributed as visual 
depictions of a minor engaged in sexually explicit conduct. 
18 U.S.C. 2252A(c) (Supp. V 1999). 

Finally, the court of appeals relied on the Court’s state- 
ment in Ferber that “the distribution of descriptions or other 
depictions of sexual conduct, not otherwise obscene, which 
do not involve live performance or photographic or other 
visual reproduction of live performances, retains First 

29 

Amendment protection.” Ferber, 458 U.S. at 764-765 
(quoted in part at Pet. App. 17a). In context, that statement 
is best understood as referring to the First Amendment’s 
protection for nonobscene written works, and perhaps non- 
obscene artistic drawings, paintings, cartoons, or sculptures 
that are created without live models—none of which are 
covered by the CPPA. See Mento, 231 F.3d at 919 n.8. 
Because Ferber presented no question concerning computer- 
generated or other depictions that are virtually indistin- 
guishable from those of actual children engaged in sexual 
conduct, there is no reason to believe that the quoted state- 
ment was directed to such material. To the contrary, as we 
have pointed out above (see p. 28, supra), the Court else- 
where specifically noted, without any expression of dis- 
approval, that the child pornography laws of several States 
applied to depictions of a person who “appears to be” a child 
under 16 or a prepubescent child. 

See 458 U.S. at 764 n.17. 

More fundamentally, it would be a mistake to attempt to 
resolve the question presented here by parsing isolated sen- 
tences in an opinion that was addressed to the resolution of a 
different question. See Texas v. Cobb, No. 99-1702 (Apr. 2, 
2001), slip op. 6 (“Constitutional rights are not defined by 
inferences from opinions which did not address the question 
at issue.”). The crucial part of the Court’s decision in Ferber 
is the legal analysis the Court applied in deciding that child 
pornography involving real children is not protected by 
the First Amendment. As we have shown, under that legal 
analysis, the form of child pornography at issue here is 
likewise unprotected by the First Amendment. 

2. a. The court of appeals also concluded that the First 
Amendment does not permit the regulation of visual depic- 
tions of child pornography based on a “consideration of the 
effects such images have on others, even if those effects 
exist.” Pet. App. 16a. The provisions at issue here, however, 
have two independently sufficient justifications that are not 

30 

based on a consideration of the effects of the images on those 
who view them. Neither the interest in ensuring that the 
prohibitions against possession of child pornography depict- 
ing real children are not rendered unenforceable, nor the 
interest in preventing virtual child pornography from fueling 
the market for child pornography involving real children, 
depends on a consideration of such effects. Both interests 
are compelling and outweigh any marginal First Amendment 
interest that may be at stake in this case. In dismissing the 
interests supporting the CPPA as impermissibly resting on 
the effects that child pornography has on pedophiles who 
view it, the court of appeals simply ignored those distinct 
and vital governmental interests. 

b. Congress also legitimately relied on its interest in 
preventing pedophiles from using child pornography to se- 
duce children into performing sexual acts. That interest 
rests on Congress’s judgment that child pornography is a 
common tool of crime. 

Just as States may enact bans on 

tools that are often used in the crime of burglary, see People 

v. Chastain, 733 P.2d 1206, 1208-1211 (Colo. 1987) (en banc), 
Congress may enact a ban on the sale of material that is 
often used in the crime of sexual abuse of children. It is true 
that the success of child pornography as a tool of crime 
depends on its effect on the children who view it. But that 
does not alter the constitutional analysis. An adult has no 
First Amendment right to display such material to children 
in the first place. In addition, the First Amendment has 
never been understood to “extend[] its immunity to speech 
or writing used as an integral part of conduct in violation of a 
valid criminal statute.” Ferber, 458 U.S. at 762 (quoting 
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 
(1949)). Thus, the protection of the First Amendment does 
not extend to visual depictions of child pornography that are 
commonly used as an integral part of the crime of sexual 
abuse of children. Children do not have the maturity in 

31 

judgment to evaluate the material that is presented to them 
by pedophiles, and pedophiles exploit that vulnerability to 
commit their crimes. 

This Court’s decision in Osborne v. Ohio, 495 U.S. 103 
(1990), fully supports the conclusion that the government 
may prohibit the possession of child pornography in order to 
prevent pedophiles from using it to seduce children into 
sexual activity. In that case, the Court upheld Ohio’s ban on 
the possession of child pornography, relying in part on the 
State’s interest in preventing pedophiles from using child 
pornography “to seduce other children into sexual activity.” 
495 U.S. at 111. As the First Circuit explained in Hilton, 167 
F.3d at 70, Osborne “marks a subtle, yet crucial, extension of 
a state’s legitimate interest to the protection of children not 
actually depicted in prohibited images.” 

c. Congress also legitimately considered the fact that 
pedophiles use child pornography to whet their appetites for 
sexual abuse. The government’s interest in preventing 
pedophiles from using child pornography to stimulate their 
appetites for sexual abuse does depend on the effects such 
images have on pedophiles, and the regulation of speech 
because of its potential to incite unlawful conduct ordinarily 
does raise serious First Amendment concerns. See 
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam). 
In the circumstances presented here, however, the First 
Amendment does not preclude Congress from taking account 
of the effects that child pornography has on pedophiles, 
along with the other considerations discussed above, in re- 
sponding to the compelling interest in protecting children 
against sexual abuse. 

First, children are especially vulnerable victims who are 
unlikely to be able to resist abuse or to have the maturity of 
judgment to seek assistance in avoiding their abusers. 
Second, the crime of sexual abuse is secretive in nature and 
is unlikely to be observed by those who could protect 

32 

children targeted by pedophiles. Third, it would not be 
practical for Congress to rely exclusively on counter-speech 
to address that problem. See Kansas v. Hendricks, 521 U.S. 
346, 360 (1997). Fourth, the government has “greater 
leeway” to regulate pornographic depictions of children than 
it has to regulate other kinds of materials. Ferber, 458 U.S. 
at 756. And fifth, in contrast to the core First Amendment 
interest in political speech at issue in Brandenburg, the First 
Amendment interest in disseminating child pornography is 
modest, if not de minimis. Ferber, 458 U.S. at 762-763. 
Those factors combine to justify as both legitimate and 
compelling the government’s interest in preventing 
pedophiles from using child pornography to whet their 
appetites for sexual abuse. In any event, the 
constitutionality of the “appears to be” and “conveys the im- 
pression” prohibitions does not ultimately depend on the 
acceptance of the “whetting the appetite” rationale. As we 
have discussed, there are three other independent justifi- 
cations for the prohibitions, and those justifications taken 
together are more than sufficient to sustain their consti- 
tutionality. 

3. Finally, the court of appeals rejected Congress’s find- 
ings that the dissemination of child pornography fosters the 
sexual abuse of children, concluding that there is not a 
demonstrated link between child pornography and the 
“subsequent sexual abuse of children.” Pet. App. 20a. The 
court apparently based that conclusion on a single student 
law review note. Ibid. (citing Ronald Adelman, The Consti- 
tutionality of Congressional Efforts to Ban Computer- 
Generated Child Pornography: A First Amendment Assess- 
ment of S. 1237, 14 J. Marshall J. Computer & Info. L. 483, 
488, 490 (1996)). The court erred in casting aside Congress’s 
considered judgment in that fashion. 

In reviewing the validity of a federal statute under the 
First Amendment, “courts must accord substantial defer- 

33 

ence to the predictive judgments of Congress.” Turner 
Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997). The 
courts’ “sole obligation is ‘to assure that, in formulating its 
judgments, Congress has drawn reasonable inferences based 
on substantial evidence,’ ” and “substantiality” is measured 
“by a standard more deferential” than that accorded “to 
judgments of an administrative agency.” Id. at 195. Such 
deference is warranted both because Congress is “far better 
equipped than the judiciary” to gather and evaluate evidence 
bearing upon legislative questions, ibid., and out of “respect 
for [Congress’s] authority to exercise the legislative power,” 
id. at 196. Moreover, in reviewing Congress’s actions, a 
court may not insist that Congress make its determinations 
on the basis of particular forms of evidence. In addition to 
relying on the testimony of experts and others with relevant 
experience, Congress may also rely on the judgments of 
other public bodies that have investigated the problem, 
Pap’s, 529 U.S. at 297; Renton v. Playtime Theatres, Inc., 
475 U.S. 41, 50-52 (1986), judicial opinions, Pap’s, 529 U.S. at 
297, and “common sense,” Burson v. Freeman, 504 U.S. 191, 
207, 211 (1992) (plurality opinion). When Congress’s findings 
on the relationship between child pornography and sexual 
abuse are reviewed with the appropriate degree of defer- 
ence, they must be credited. 

a. A wealth of evidence supports Congress’s finding that 
pedophiles use child pornography to seduce children into 
sexual activity. Researchers and prosecutors who testified 
at the Senate Hearing informed Congress unequivocally that 
pedophiles use child pornography as a method of seduction.4 

4 Senate Hearing 35 (statement of professor of psychology Dr. Victor 
Cline) (Child pornography is used “to seduce children into engaging in 
sexual acts” with adults.); id. at 96-97 (testimony of Bruce A. Taylor, 
President and Chief Counsel of the National Law Center for Children and 
Families) (“Actual or simulated child pornography is shown to convince 
the child that other children regularly participate in sexual activities with 

34 

Earlier federal investigations arrived at the same conclusion. 
In 1986, the Attorney General’s Commission on Pornography 
found “substantial evidence that photographs of children en- 
gaged in sexual activity are used as tools for further mole- 
station of other children.” Final Report, supra, at 411.5 In 

adults or peers. * * * Continued exposure to the pornography lowers the 
inhibitions of the child to a point where he allows the molester to kiss and 
touch him sexually. Eventually, if successful, the seduction process 
progresses to more explicit activity between the child victim and adult or 
other children, using the pornography as instructional tools.”) (footnote 
omitted); id. at 20 (statement of Deputy Chief Postal Inspector Jeffrey J. 
Dupilka) (“Child molesters use kiddie porn to seduce children into 
participating in sexual activity with them.”); id. at 18 (statement of 
Deputy Assistant Attorney General Kevin U. DiGregory) (“Entirely 
artificial images * * * can be used by pedophiles to seduce children”); id. 
at 37 (testimony of Dee Jepsen, President of Enough is Enough) 
(“Therapists who treat sexually addicted persons declare, and studies 
confirm, that pornography, often child pornography, does play a major role 
in the molestation process with children.”). 

5 See Final Report, supra, at 411 (“Children are shown pictures of 
other children engaged in sexual activity, with the aim of persuading 
especially a quite young child that if it is in a picture, and if other children 
are doing it, then it must be all right for this child to do it.”); id. at 649 
(“Child pornography is often used as part of a method of seducing child 
victims.”); ibid. (“A child who is reluctant to engage in sexual activity with 
an adult or to pose for sexually explicit photos can sometimes be convinced 
by viewing other children having ‘fun’ participating in the activity.”); ibid. 
(“From a very early age children are taught to respect and believe 
material contained in books and will thus have the same beliefs about child 
pornography.”); id. at 649-650 (“Child pornography is * * * used to 
illustrate the activities in which the pedophile wishes a child to engage. In 
such instances a pedophile offender shows the child the pornography and 
asks the child to imitate the pictures.”) (footnote omitted); id. at 649 (“A 
pedophile offender will use child pornography in which the children appear 
to be having a good time. The offender uses this material to lower the 
inhibitions of the child and entice him or her into a desired activity. 
Children who view this material are also subject to a certain amount of 
peer pressure as they see other children engaged in the activity.”). 

35 

that same year, the Senate Permanent Subcommittee on 
Investigations also concluded that pedophiles use child 
pornography to “lower a child’s inhibitions,” and to “assist 
them in seducing their victims.” S. Rep. No. 537, 99th Cong., 
2d Sess. 10, 44 (1986). This Court specifically noted in 
Osborne that “evidence suggests that pedophiles use child 
pornography to seduce other children into sexual activity,” 
495 U.S. at 111, and the available secondary literature con- 
firms that conclusion.6 The reported cases also provide vivid 
examples of pedophiles using images of child pornography in 
the course of exploiting children sexually.7 

Child pornography is not the only means by which pedo- 
philes seduce children into sexual activity. The evidence 
before Congress, however, shows that it plays a significant 
role. One witness informed Congress that approximately 
one-third of the molesters in his practice had used child 
pornography as a seduction tool. Senate Hearing 116 (testi- 
mony of Dr. Cline). Another witness testified that a study of 
1,400 sexual exploitation cases in Louisville, Kentucky 

6 Tim Tate, Child Pornography: An Investigation 118 (1990) (a 
pedophile’s collection of child pornography is “a vital tool in the future 
seduction of new victims”); Daniel Campagna & Donald Poffenberger, The 
Sexual Trafficking in Children: An Investigation of the Child Sex Trade 
118 (1988) (child pornography is used “to lower a minor’s inhibitions and 
resistance to sex,” and “as an instructional aid to indoctrinate victims into 
various sexual practices”); Shirley O’Brien, Child Pornography 89 (1983) 
(child pornography is “used to convince [the] child that other children are 
sexually active,” and as a tool to “lower[] [the] child’s inhibitions” against 
sexual activity with adults); Seth Goldstein, The Sexual Exploitation of 
Children: A Practical Guide To Assessment, Investigation, and Interven- 
tion 149 (2d ed. 1999) (child pornography “is often used by the child moles- 
ter to seduce the child”). 

7 See, e.g.., United States v. Snyder, 189 F.3d 640, 643 (7th Cir. 1999), 
cert. denied, 527 U.S. 1097 (2000); Burke v. State, 27 S.W.3d 651, 655 (Tex. 
Ct. App. 2000), petition for discretionary review refused, Nos. 00-1869 & 
00-1870 (Tex. Crim. App. Dec. 6, 2000). 

36 

“revealed that a significant number of molestation cases 
involve child pornography.” Id. at 92. The testimony that 
Congress heard is consistent with evidence from other 
sources. The Senate Permanent Subcommittee on Investi- 
gations reported that most of the child molesters that it 
interviewed “said they had used [such] material to lower the 
inhibitions of children or to coach them into posing for photo- 
graphs.” S. Rep. No. 537, supra, at 9. And a study 
conducted by the Los Angeles Police Department’s Sexually 
Exploited Child Unit revealed that more than 20% of the 320 
cases investigated by that unit during a ten-year period 
involved the use of child pornography. The Sexual Exploita- 
tion of Children, supra, at 149. 

The evidence before Congress also established that 
computer-generated pictures of child pornography can be 
used to seduce children just as effectively as pictures of real 
children. One witness explained that there is “no difference” 
between computer-generated pornography and pictures of 
actual children in terms of their effectiveness as a tool of 
seduction of minors. Senate Hearing 116 (testimony of Dr. 
Victor Cline). Another witness similarly testified that “[t]he 
real and the apparent * * * are equally dangerous because 
both have * * * the same seductive effect on a child 
victim.” Id. at 70 (testimony of Bruce A. Taylor). Since com- 
puter technology can be used to produce visual depictions 
that are virtually indistinguishable from unretouched photos 
of actual children engaged in sexually explicit conduct, it 
would be difficult to reach any other conclusion. 

Indeed, even the student note relied upon by the court of 
appeals found it “relatively easy to infer from proof that 
children are swayed by images of actual children the con- 
clusion that they will also be swayed by lifelike computer- 
generated images.” Adelman, supra, 14 J. Marshall J. 
Computer & Info. L. at 490. The note further stated that 
“computer-generated images may be even more dangerous 

37 

than photographic ones,” since “[i]t will soon be possible to 
create realistic sexually explicit images of a child’s friends or 
siblings in an effort to convince that child that engaging in 
sexual acts is acceptable.” Id. at 490-491. 

b. In addition, Congress had a substantial basis for con- 
cluding that a prohibition against images that appear to be of 
children engaged in sexual activity is necessary in order to 
make sure that those who distribute and possess images 
depicting real children engaged in sexual activity do not 
escape prosecution and conviction. Congress was informed 
that in one major federal child pornography prosecution— 
United States v. Kimbrough, 69 F.3d 723, 733 (5th Cir. 1995), 
cert. denied, 517 U.S. 1157 (1996)—the defendant had relied 
on the existence of “currently available computer programs” 
to argue “that the Government had the burden of proving 
that each item of alleged child pornography did, in fact, 
depict an actual minor rather than an adult made to look 
like one, and that the defendant should be acquitted if the 
government did not meet that burden.” S. Rep. No. 358, 
supra, at 17 (quoting Senate Hearing 18 (statement of Dep- 
uty Assistant Attorney General DiGregory)). 

The government overcame the defense in the Kimbrough 
case “through a carefully executed cross-examination and 
production, in court, of some of the original magazines from 
which the computer-generated images were scanned.” Sen- 
ate Hearing 18. When Kimbrough was tried, however, the 
relevant technology was “at an early stage of development.” 
Ibid. Congress also learned that, as time passes, “magazine 
archives will be of less value to prosecutors since child 
pornography produced today will no longer predate the 
availability of graphic imaging software.” Ibid.8 

8 Since the enactment of the CPPA, defendants have continued to 
argue that the pictures they are accused of possessing are not of real 
children. See, e.g., Fox, 2001 WL 370045, at *5 (“During the trial in the 

38 

c. There was also substantial testimony presented to 
Congress that pedophiles exchange pictures of children 
engaged in sexual activities. Senate Hearing 35 (testimony 
of Dr. Cline); id. at 30 (testimony of Deputy Chief Postal 
Inspector Dupilka); id. at 90 (testimony of Bruce Taylor). 
Evidence from other sources confirms that child porno- 
graphy is a form of currency that can be used to obtain addi- 
tional child pornography. See Kenneth Lanning, Collectors, 
in Child Pornography and Sex Rings 83, 86-87 (Ann 
Burgess et al. eds. 1984) (“child pornography and erotica” is 
used “as a medium of exchange,” with pedophiles “ex- 
chang[ing] photographs of children for access to or phone 
numbers of other children”). Accord S. Rep. No. 537, supra, 
at 11; see also Final Report, supra, at 650 (“Child porno- 
graphy is also seen as a valuable commodity among pedo- 
philes,” and “[v]isual depictions may be traded or sold 
between collectors.”). Indeed, in 1984, Congress deleted the 
commercial purpose requirement from the federal child 
pornography laws precisely because “[m]any of the 
individuals who distribute” child pornography “do so by gift 
or exchange without any commercial motive.” H.R. Rep. No. 
536, 98th Cong., 1st Sess. 2 (1983). Substantial evidence 
therefore supports Congress’s judgment that prohibiting the 

instant case, for example, Special Agent Barkhausen, the government’s 
computer expert, was forced to concede under cross-examination that 
‘there’s no way of actually knowing that the individual depicted [in the 
images] . . . even exists[.]’”); United States v. Coleman, No. ARMY 
9801240, 2001 WL 55523, at *3 (Army Ct. Crim. App. Jan. 24, 2001) 
(upholding guilty plea despite defendant’s contention that “he failed to 
explicitly admit that the children in the images were ‘real,’ as opposed to 
computer-generated, images”); United States v. Vig, 167 F.3d 443, 450 (8th 
Cir.) (rejecting defendant’s argument that images might not be of real 
children as “unsupported speculation”), cert. denied, 528 U.S. 859 (1999). 
See also Br. for Appellant at 34-35 in United States v. Marvin Hersh, No. 
00-14592-CC (11th Cir. Feb. 27, 2001). 

39 

dissemination and possession of images that appear to be of 
children engaged in sexual activity will help to stamp out the 
market for child pornography involving real children. 

d. Finally, the evidence before Congress established that 
“[c]hild pornography stimulates the sexual appetites and 
encourages the activities of child molesters and pedophiles.” 
S. Rep. No. 358, supra, at 12. One psychiatrist informed 
Congress that “the overwhelming majority” of pedophiles in 
his clinical experience “use child pornography and/or create 
it to stimulate and whet their sexual appetites which they 
masturbate to, then later use as a model for their own sexual 
acting-out with children.” Senate Hearing 35 (testimony of 
Dr. Cline). Congress also learned that in “many cases coming 
to the attention of law enforcement the arousal and fantasy 
fueled by child pornography is only a prelude to actual 
sexual activity with children.” S. Rep. No. 358, supra, at 13. 
Independent investigators have come to the same con- 
clusion. For example, one commentator has explained: 

Child pornography and child erotica is used for the 
sexual arousal and gratification of pedophiles. They use 
child pornography the same way other people use adult 
pornography—to feed sexual fantasies. Some pedophiles 
only collect and fantasize about the material without 
enacting these fantasies. In most cases coming to the 
attention of law enforcement, however, the arousal and 
fantasy fueled by the pornography is only a prelude to 
actual sexual activity with children. 

Lanning, supra, 86; accord S. Rep. No. 537, supra, at 10. 
Once again, Congress was informed that even if “no under- 
age children were used in producing this pornographic 
material, to the viewer this is irrelevant because they are 
perceived as minors to the psyche.” Senate Hearing 35-36 
(testimony of Victor Cline). 

40 

4. In sum, the court of appeals erred as a matter of law in 
concluding that the interests supporting the provisions at 
issue are not compelling. Because those interests clearly 
outweigh whatever minimal First Amendment interest may 
be at stake in disseminating depictions that are virtually 
indistinguishable from photographs of real children engaged 
in sexually explicit conduct, the provisions at issue here do 
not violate the First Amendment. 

C. The Provisions At Issue Are Not Unconstitutionally 

Vague 

The CPPA’s “appears to be” and “conveys the impression” 
provisions are also not unconstitutionally vague. Pet. App. 
24a. The Constitution does not impose “ ‘impossible stan- 
dards’ of clarity.” Kolender v. Lawson, 461 U.S. 352, 361 
(1983). Nor does it require “mathematical certainty” from 
statutory language. Grayned v. City of Rockford, 408 U.S. 
104, 110 (1972). The First Amendment and the Due Process 
Clause require only that “laws give the person of ordinary 
intelligence a reasonable opportunity to know what is pro- 
hibited, so that he may act accordingly.” Id. at 108. 

The CPPA’s “appears to be” and “conveys the impression” 
provisions satisfy that standard. As we have explained, both 
provisions apply only to material that is “virtually indistin- 
guishable to the unsuspecting viewer from unretouched 
photographic images of actual children engaging in sexually 
explicit conduct.” See, e.g., 18 U.S.C. 2251 note (Supp. V 
1999) (Findings 5, 8, 13). Persons of ordinary intelligence can 
discern whether material falls within that standard. 

The court of appeals concluded that the statutory stan- 
dard is “highly subjective” and therefore impermissibly 
vague. Pet. App. 24a. The standard imposed by the CPPA, 
however, is an “objective” standard, not a subjective one. As 
the First Circuit explained in Hilton, “[a] jury must decide, 
based on the totality of the circumstances, whether a reason- 

41 

able unsuspecting viewer would consider the depiction to be 
of an actual individual under the age of 18 engaged in sexual 
activity.” 167 F.3d at 75; accord Mento, 231 F.3d at 922. 

As the First Circuit further explained, “any number of 
objective signs” can “warn an ordinary viewer of sexually 
explicit material of the apparent age of the person depicted.” 
Hilton, 167 F.3d at 76. The physical characteristics of 
the person depicted will provide adequate warning in a great 
range of cases, including those in which an apparent pre- 
pubescent child is depicted. Id. at 73-74; accord Fox, 2001 
WL 370045, at *8. When the physical characteristics of 
the person depicted leave room for doubt, fair warning can 
be obtained from “the manner in which the image was 
described, displayed, or advertised.” Hilton, 167 F.3d at 75; 
accord Acheson, 195 F.3d at 652-653. Moreover, “those 
involved in the production of lawful sexually explicit mate- 
rial can easily protect themselves by verifying the ages of 
the models they employ or by taking steps to visually dem- 
onstrate that a computer-generated image is meant to por- 
tray an adult.” Hilton, 167 F.3d at 76. See 18 U.S.C. 2257 
(requiring producers of sexually explicit visual depictions to 
create and maintain records of the names and ages of their 
performers). 

The Act’s scienter requirement—that any violation must 
be “knowing[]”—further diminishes any vagueness concerns. 
See 18 U.S.C. 2252A(a)(1)-(5) (Supp. V 1999). A person who 
honestly believes that a reasonable unsuspecting viewer 
would not consider the depiction to be of a minor must be 
acquitted. See Hilton, 167 F.3d at 75-76; Fox, 2001 WL 
370045, at *8; see also United States v. X-Citement Video, 
513 U.S. 64 (1994). 

This Court’s decision in Ferber confirms that use of the 
terms “appears to be” and “conveys the impression” do not 
render the CPPA unconstitutionally vague. In that case, the 
Court held that New York’s child pornography law defined 

42 

the forbidden acts of sexually conduct “with sufficient pre- 
cision.” 458 U.S. at 765. That law included as one forbidden 
act “simulated sexual intercourse,” ibid., and the meaning of 
“simulate” is “to give the appearance” of, Webster’s Third 
New International Dictionary 2122 (1976). See also Miller, 
413 U.S. at 24, 27 (holding that inquiries into whether 
material “appeal[s] to the prurient interest” of the “average 
person, applying contemporary community standards,” and 
depicts in a “patently offensive” way sexual conduct defined 
by state law, are not unconstitutionally vague); 18 U.S.C. 
1028(a)(6) (1994 & Supp. V 1999) (making it unlawful to 
“knowingly possess[] an identification document that is or 
appears to be an identification document of the United 
States which is stolen or produced without lawful authority 
knowing that such document was stolen or produced without 
such authority”). The court of appeals therefore erred in 
holding that the provisions at issue are unconstitutionally 
vague. 

D. The Provisions At Issue Are Not Substantially Over- 
broad 

The court of appeals held that the provisions at issue are 
substantially overbroad. It based that holding, however, 
entirely on its earlier conclusion that a compelling interest in 
regulating child pornography is implicated only when the 
material at issue depicts real children. Pet. App. 25a-27a. 
As we have explained, that part of the court’s analysis is 
simply incorrect. The compelling interest in protecting 
children from sexual abuse is also fully implicated when the 
material is virtually indistinguishable from depictions of 
real children engaged in sexually explicit conduct, and that 
interest clearly outweighs the First Amendment interest, if 
any, in disseminating and possessing such material. 

Moreover, applying ordinary overbreadth standards, the 
CPPA is not unconstitutionally overbroad. This Court has 

43 

held that the overbreadth doctrine is “strong medicine” and, 
that in order for the doctrine to be applied, the overbreadth 
involved “must not only be real, but substantial as well, 
judged in relation to the statute’s plainly legitimate sweep.” 
Broadrick v. Oklahoma, 413 U.S. 601, 613, 615 (1973). 
Judged by that standard, the provisions at issue are not 
unconstitutionally overbroad. 

In Ferber, the Court rejected an overbreadth challenge to 
New York’s prohibition against the distribution of depictions 
of real children involved in sexually explicit conduct. 458 
U.S. at 773-774. The Court “consider[ed] this the paradig- 
matic case of a state statute whose legitimate reach dwarfs 
its arguably impermissible applications.” Id. at 773. The 
Court emphasized that the statute was aimed “at the hard 
core of child pornography,” and it did not view the possibility 
that some protected expression might be covered by the 
statute as sufficient to require facial invalidation. Ibid. The 
Court explained that “[h]ow often, if ever, it may be neces- 
sary to employ children to engage in conduct clearly within 
the reach of § 263.15 in order to produce educational, medi- 
cal, or artistic works cannot be known with certainty. Yet 
we seriously doubt, and it has not been suggested, that these 
arguably impermissible applications of the statute amount to 
more than a tiny fraction of the materials within the 
statute’s reach.” Ibid. In those circumstances, the Court 
concluded, “§ 263.15 is ‘not substantially overbroad and 

. . . whatever overbreadth may exist should be cured 
through case-by-case analysis of the fact situations to which 
its sanctions, assertedly, may not be applied.’ ” Id. at 773-774 
(quoting Broadrick, 413 U.S. at 615-616). 

The reasoning applied in Ferber is equally applicable 
here. Like the statute at issue in Ferber, the CPPA is aimed 
at “hard core” child pornography—depictions that involve 
“sexual intercourse,” or “lascivious exhibition of the genitals 
or pubic area.” 18 U.S.C. 2256(2)(A) and (E). The CPPA 

44 

does not apply to an “innocuous depiction of a minor * * * 
however that depiction is produced.” S. Rep. No. 358, supra, 
at 20. For example, the “Coppertone suntan lotion ad- 
vertisements featuring a young girl in a bathing suit are not 
now, and will not become under [the statute], child porno- 
graphy.” Ibid. Nor is the statute implicated by a “parental 
picture of a child in the bathtub or lying on a bearskin rug.” 
Id. at 21. 

As in Ferber, it is difficult to know precisely how often it 
might be necessary to use depictions that are covered by the 
CPPA in order to produce educational, medical, or artistic 
works. But here, as in Ferber, there has been no suggestion 
that materials of that kind would amount to more than a tiny 
fraction of the materials within the statute’s reach. As we 
have discussed, there are several ways to disseminate educa- 
tional, medical, or artistic works concerning a child’s sexual- 
ity without violating the CPPA: The Act does not cover 
drawings, cartoons, sculptures, and paintings that depict 
youthful-looking persons in sexual poses; it supplies an 
affirmative defense to persons who disseminate visual de- 
pictions involving adults who may appear to be children, 
provided that the depictions are not promoted or presented 
as child pornography, 18 U.S.C. 2252A(c) (Supp. V 1999); and 
the Act does not apply to visual materials in which sexually 
explicit conduct by children is understood to be taking place, 
as long as the sexually explicit conduct is not itself visually 
depicted. Thus, here, as in Ferber, the provisions at issue 
are “not substantially overbroad and . . . whatever over- 
breadth may exist should be cured through case-by-case 
analysis of the fact situations to which its sanctions, assert- 
edly, may not be applied.” Ferber, 458 U.S. at 773-774 
(quoting Broadrick, 413 U.S. at 615-616); see Fox, 2001 WL 

45 

370045, at *7; Acheson, 195 F.3d at 652; Hilton, 167 F.3d at 

74.9 

CONCLUSION 

The judgment of the court of appeals should be reversed. 

Respectfully submitted. 

BARBARA D. UNDERWOOD 
Acting Solicitor General 

STUART E. SCHIFFER 

Acting Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

IRVING L. GORNSTEIN 

Assistant to the Solicitor 

General 

BARBARA L. HERWIG 
JACOB M. LEWIS 

Attorneys 

APRIL 2001 

9 We do not suggest that the Act has any invalid application or that 
the First Amendment requires some type of serious value defense. 
Regardless of its value, material that is covered by the CPPA can still be 
used to seduce children into sexual activity; it can still be used by 
pedophiles to stimulate their appetites for sexual abuse; it can still 
frustrate prosecutions involving depictions of real children who cannot be 
identified as such; and it can still be exchanged for other pictures of child 
pornography. Cf. Ferber, 458 U.S. at 774-775 (O’Connor, J., concurring). 
Those considerations are paramount, and they categorically outweigh the 
First Amendment interests at stake in disseminating child pornography. 
As the Court did in Ferber, however, we recognize that the Act raises 
more serious questions as applied to the limited number of cases, if any, in 
which depictions of child pornography are necessary “in order to produce 
educational, medical, or artistic works.” Ferber, 458 U.S. at 773.