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 

REPLY BRIEF FOR THE PETITIONERS 

THEODORE B. OLSON 

Solicitor General 

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

TABLE OF CONTENTS 

Page 

A. Ferber does not protect the covered material ................. 
2 

B. The covered material has little, if any, value ................... 
3 

C. The governmental interests are compelling ..................... 
7 

D. The CPPA is not substantially overbroad ........................ 
16 

E. The CPPA is not unconstitutionally vague ...................... 
18 

Conclusion ....................................................................................... 20 

TABLE OF AUTHORITIES 

Cases: 

American Library Ass’n v. Reno, 33 F.3d 78 (D.C. 

Cir. 1994), cert. denied, 515 U.S. 1158 (1995) ................... 
17 

Burson v. Freeman, 504 U.S. 191 (1992) ........................... 
10, 11 

FEC v. Colorado Republican Fed. Campaign Comm., 
121 S. Ct. 2351 (2001) ............................................................ 
11 

Giboney v. Empire Storage & Ice Co., 336 U.S. 490 
(1949) ........................................................................................ 13 

Ginsberg v. New York, 390 U.S 629 (1968) ........................ 

13 

Hamling v. United States, 418 U.S. 87 (1974) .................. 
19 

Hill v. Colorado, 530 U.S. 703 (2000) ................................. 
11 

Miller v. California, 413 U.S. 15 (1973) ................... 
2, 14, 19, 20 

New York v. Ferber, 458 U.S. 747 (1982) ................... 
1, 2, 3, 4, 

7, 11, 12, 13, 16 

Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 
(1978) ........................................................................................ 11 

Olmstead v. L.C., 527 U.S. 581 (1999) ................................ 
5 

Osborne v. Ohio, 495 U.S. 103 (1990) .................................. 
8, 13 

Pope v. Illinois, 481 U.S. 497 (1987) .................................. 
19 

Regan v. Time, Inc., 468 U.S. 641 (1984) .......................... 
11, 12 

Sutton v. United Airlines, Inc., 527 U.S. 471 
(1999) ........................................................................................ 5 

Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 
(1997) ........................................................................................ 9 

United States v. Coleman, 54 M.J. 869 (A.C.M.R. 
2001) ......................................................................................... 

9, 10 

United States v. Fox, 248 F.3d 394 (5th Cir. 2001) .......... 9 

(I) 

II 

Cases—Continued: Page 

United States v. Hilton, 167 F.3d 61 (1st Cir.), 
cert. denied, 528 U.S. 844 (1999) ................................... 
1, 4, 18 

United States v. Mento, 231 F.3d 912 (4th Cir. 
2000), petition for cert. pending, No. 00-8114 (filed 
Jan. 22, 2001) ........................................................................... 
3 

United States v. Petrillo, 332 U.S. 1 (1947) ...................... 
20 

Winship, In re, 397 U.S. 358 (1970) ...................................... 
10 

Constitution and statutes: 

U.S. Const.: 

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

1, 2, 3, 4, 10, 11, 12, 13, 14 

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

10 

Child Pornography Prevention Act of 1996, 18 U.S.C. 
2251 et seq.: 
18 U.S.C. 2251 (1994 & Supp. V 1999) ........................... 
9 

18 U.S.C. 2251 note (Supp. V 1999) .............. 
2, 5, 12, 18-19 

18 U.S.C. 2252(c) (Supp. V 1999) .................................... 
17 

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

18 U.S.C. 2252A(c)(3) (Supp. V 1999) ............................ 
4, 6 

18 U.S.C. 2256(8) (Supp. V 1999) .................................... 
1, 5 

18 U.S.C. 2256(8)(B) (Supp. V 1999) .............................. 
5 

18 U.S.C. 2256(8)(D) (Supp. V 1999) .............................. 
5 

18 U.S.C. 2257 ........................................................................ 
17 

Miscellaneous: 

S. Rep. No. 358, 104th Cong., 2d Sess. (1996) ................ 4, 6, 8, 9 

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 

REPLY BRIEF FOR THE PETITIONERS 

In New York v. Ferber, 458 U.S. 747 (1982), the Court held 
that visual depictions of live sexual performances by minors 
are unprotected by the First Amendment. The Court rea- 
soned that the “evil to be restricted so overwhelmingly out- 
weighs the expressive interests, if any, at stake,” that “it is 
permissible to consider these materials as without the pro- 
tection of the First Amendment.” Id. at 763-764. The pro- 
hibitions in the Child Pornography Prevention Act of 
1996 (CPPA), 18 U.S.C. 2252A, 2256(8) (Supp. V 1999), apply 
to visual depictions of actual minors engaged in sexually 
explicit conduct. United States v. Hilton, 167 F.3d 61, 66 (1st 
Cir.), cert. denied, 528 U.S. 844 (1999). They also cover a 
narrow category of additional depictions—those that 

(1) 

2 

Congress found to be “virtually indistinguishable to the un- 
suspecting viewer from unretouched photographic images of 
actual children engaging in sexually explicit conduct.” 18 
U.S.C. 2251 note (Supp. V 1999) (Finding 5). As in Ferber, 
the “evil to be restricted” in that category of material “over- 
whelmingly outweighs the expressive interests, if any, at 
stake.” 458 U.S. at 763-764. Thus, that category of material 
is also unprotected by the First Amendment. 

A. Ferber Does Not Protect The Covered Material 

Respondents contend (Br. 22-23) that the depictions 
banned by the CPPA are “exactly the type of depictions 
held in Ferber to be protected by the First Amendment.” 
Ferber’s sole holding, however, was that the government 
may regulate visual depictions of actual minors engaged in 
sexually explicit conduct. Because the particular state 
statute at issue in Ferber applied only to such depictions, the 
Court had no occasion to resolve the question whether the 
government also may regulate material that is “virtually 
indistinguishable” from depictions of real minors engaged in 
sexually explicit conduct. Indeed, at the time of Ferber, the 
computer technology for producing such images had not yet 
emerged. 

In support of their argument that the material covered by 
the CPPA is constitutionally protected under Ferber, re- 
spondents rely (Br. 22) on the following statement from that 
decision: “We note 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 
Amendment protection.” 458 U.S. at 764-765. That state- 
ment, however, is best understood in the context of a 
discussion of Miller v. California, 413 U.S. 15 (1973), as 
referring to the protection that the First Amendment ex- 
tends to such material as written works, artistic drawings, 

3 

paintings, sculptures, and cartoons, not to material that is 
“virtually indistinguishable” from depictions of actual child- 
ren engaged in sexually explicit conduct. United States v. 
Mento, 231 F.3d 912, 919 n.8 (4th Cir. 2000), petition for cert. 
pending, No. 00-8114 (filed Jan. 22, 2001). Respondents’ far 
broader reading ignores the Court’s observation, with ap- 
parent approval, that at the time of the decision in Ferber, 
the child pornography laws of two States had defined a child 
as “a person under age 16 or who appears as a prepube- 
scent,” and the law of another State had defined a child as 
“one who is or appears to be under 16.” 458 U.S. at 764 n.17. 
Read together, the two statements suggest the very line 
that Congress drew in the CPPA: It covered depictions that 
appear to be actual minors engaged in sexually explicit con- 
duct, but it excluded from coverage written descriptions and 
artistic conceptions of minors that do not have the realism of 
photographs. 

Respondents’ focus on a single isolated statement in 
Ferber also misses the critical point of that decision—that 
material is categorically unprotected by the First Amend- 
ment when the government’s interest in preventing the evils 
associated with it “overwhelmingly outweighs the expres- 
sive interests, if any, at stake.” Ferber, 458 U.S. at 763-764. 
That mode of analysis, rather than any single statement in 
the opinion, governs the resolution of the question presented 
here. 

B. The Covered Material Has Little, If Any, Value 

1. Respondents argue (Br. 17-20, 29-30, 39-41) that the 
prohibitions in the CPPA of material that depicts conduct 
that “appears to be” and “conveys the impression” of “a mi- 
nor engaging in sexually explicit conduct” cover a vast 
amount of material that has serious value. Here, as in 
Ferber, however, the value of the material that is actually 
covered by the prohibitions is “exceedingly modest, if not de 

4 

minimis.” 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 there might be a legitimate objective in 
a rare case to depict minors engaged in sexually explicit con- 
duct, it can be done consistently with the CPPA. Because 
the CPPA reaches only material that is “virtually indis- 
tinguishable” from photographs of actual minors engaged 
in sexually explicit conduct, artistic conceptions—drawings, 
paintings, sculptures, and cartoons—are not prohibited. In 
addition, by virtue of the CPPA’s affirmative defense, depic- 
tions of youthful-looking adults are also permissible, as long 
as the creators and distributors of such material 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). That defense protects the use of adults in sexually 
explicit depictions, as long as “the material has not been 
pandered as child pornography.” S. Rep. No. 358, 104th 
Cong., 2d Sess. 10 (1996). 

Because the CPPA does not cover artistic conceptions of 
minors engaged in sexually explicit conduct or depictions of 
adults engaged in sexually explicit conduct that are not pan- 
dered as child pornography, its prohibitions do not facially 
trigger serious First Amendment concerns. The material 
that is subject to prosecution under the “appears to be” and 
the “conveys the impression” prohibitions consists largely of 
realistic, sexually explicit images of pre-pubescent minors or 
of persons who otherwise clearly appear to be under the age 
of 18. Hilton, 167 F.3d at 73. Such material is catered to 
pedophiles, and has little or no serious value. Ibid. 

5 

2. In an effort to avoid the conclusion that the CPPA 
covers material that has little or no value, respondents inter- 
pret the Act to encompass a far broader range of materials. 
In particular, respondents contend (Br. 17-20) that the 
CPPA is not limited to visual depictions that are virtually in- 
distinguishable from photographs of real children, but also 
covers drawings, paintings, sculptures, and cartoons. Re- 
spondents base that interpretation on the CPPA’s coverage 
of “any visual depiction * * * whether made or produced 
by electronic, mechanical, or other means.” 18 U.S.C. 2256(8) 
(Supp. V 1999). But in order to be subject to the prohibitions 
at issue, a visual depiction, however made or produced, must 
“appear[] to be” of a “minor engaging in sexually explicit 
conduct,” or must be pandered “in such a manner that con- 
veys 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)(B) and (D) (Supp. V 1999) (em- 
phasis added). In legislative findings, Congress clarified that 
a depiction falls within those definitions only if it is “virtually 
indistinguishable to the unsuspecting viewer from unre- 
touched photographic images of actual children engaging in 
sexually explicit conduct.” 18 U.S.C. 2251 note (Supp. V 
1999) (Finding 5); see also 18 U.S.C. 2251 note (Supp. V 1999) 
(Findings 8, 9, 13). 

Respondents argue (Br. 19) that the statutory findings 
have no relevance in interpreting the CPPA’s prohibitions. 
This Court, however, has expressly relied on statutory find- 
ings to determine the meaning of the substantive provisions 
of an Act of Congress. Olmstead v. L.C., 527 U.S. 581, 600 
(1999); Sutton v. United Airlines, Inc., 527 U.S. 471, 484-487 
(1999). Moreover, the background of the CPPA supports the 
same interpretation. Before enactment of the CPPA, Con- 
gress regulated only depictions of actual minors engaged 
in sexually explicit conduct. Against that background, the 
phrase “appears to be[]” of a “minor engaging in sexually 

6 

explicit conduct” necessarily refers to realistic depictions 
that appear to use actual minors in their production. The 
Senate Report specifically explains that the new prohibitions 
apply “to the same type of photographic images already 
prohibited, but which does not require the use of an actual 
minor in its production.” S. Rep. No. 358, supra, at 21. 

3. Respondents also contend (Br. 29-30) that the Act pro- 
hibits non-obscene depictions of youthful-looking adults 
engaged in sexually explicit conduct. The Act’s affirmative 
defense, however, expressly permits the creation of such de- 
pictions, provided they are not pandered to convey the im- 
pression that actual minors were used in their production. 18 
U.S.C. 2252A(c)(3) (Supp. V 1999). Respondents’ dire pre- 
dictions (Br. 29-30) about the effect of the CPPA on movies 
ignores the affirmative defense. By virtue of the defense, 
film makers may use adults as actors and body doubles 
in non-obscene movies that depict teen sexual activity, as 
long as they refrain from pandering the movies to convey the 
impression that the actors used in the sexually explicit 
scenes are, in fact, minors. Similarly, films may be promoted 
as works about teen sexual activity, as long as they are not 
promoted to convey the impression that the actors involved 
in the sexually explicit scenes are minors. 

Respondents apparently assume (Br. 29-30) that including 
a scene in a movie in which an underage character engages 
sexually explicit conduct itself constitutes impermissible 
pandering. A reasonable viewer of movies, however, is 
aware that adults are often used to portray minors and to act 
as body doubles in films about teen sexuality. Thus, the 
creation of a scene in which an underage character engages 
in sexually explicit conduct does not in itself constitute im- 
permissible pandering. For the same reason, promoting a 
film as one about teen sexuality does not constitute imper- 
missible pandering. Film makers and distributors lose the 
affirmative defense only if they affirmatively convey the 

7 

impression that the actor in a sexually explicit scene is a 
minor.1 

C. The Governmental Interests Are Compelling 

Respondents contend (Br. 25) that the governmental in- 
terests supporting the “appears to be” and “conveys the im- 
pression” prohibitions do not rise to the same level as the 
interest at stake in Ferber. 

The CPPA, however, is sup- 
ported by the same interest supporting the state law upheld 
in Ferber, and the other interests supporting the CPPA are 
just as compelling. 

1. One compelling interest supporting the “appears to 
be” and “conveys the impression” prohibitions is precisely 
the same interest involved in Ferber—preventing the use of 
actual minors in sexually explicit depictions by shutting 
down the market for such depictions. 458 U.S. at 758-759. 
Because it is possible to produce computer images that are 
virtually indistinguishable from photographs of real minors 
engaged in sexually explicit conduct, a defendant charged 
with distributing or possessing depictions of real minors en- 
gaged in sexually explicit conduct can argue that the images 
may, in fact, be computer-generated. The government can 
refute that argument if it happens to be able to match the 

1 It is not necessary to decide whether any of the movies cited by 
respondents (Br. 30, 44) would fall within the reach of the CPPA but for 
the affirmative defense. Those movies are not in the record and no 
evidence has been elicited about them. The question whether any parti- 
cular movie would be covered by the CPPA absent the affirmative defense 
would depend on whether any scenes in the movies depict sexually explicit 
conduct as opposed to creating an understanding that sexually explicit 
conduct is occurring, and on whether any of the actors or actresses in 
sexually explicit scenes appear (beyond a reasonable doubt) to be minors, 
rather than adults portraying minors. While respondents represent that 
all the movies would be covered, they have failed to identify any scenes in 
which sexually explicit conduct, as defined in the CPPA, is depicted or any 
actors who appear to be minors. 

8 

depictions to pictures in pornographic magazines produced 
before the development of computer imaging software or if it 
can establish the identity of the victim. But in the many 
cases in which it is not possible to do one of those two things, 
the defendant has a built-in reasonable doubt argument that 
could thwart prosecutions. The “appears to be” and “con- 
veys the impression” prohibitions close that loophole and 
ensure that those who distribute and possess depictions of 
real minors engaged in sexually explicit conduct will not 
escape prosecution and punishment. See S. Rep. No. 358, 
supra, at 16-17, 20. 

Respondents argue (Br. 25) that, under Ferber, that ra- 
tionale would be sufficient only if the government could 
establish that “the production of materials using actual 
children cannot be stopped without also banning the mate- 
rials covered by the CPPA.” Respondents further argue 
that the government failed to make such a showing. Respon- 
dents’ argument cannot be reconciled with Osborne v. Ohio, 
495 U.S. 103 (1990), or with the record before Congress. 

In Osborne, the Court upheld the constitutionality of a 
prohibition against the possession of depictions of actual 
minors engaged in sexually explicit conduct. The Court did 
not apply the rule of absolute necessity proposed by respon- 
dents. Instead, it held that it was “surely reasonable for the 
State to conclude that it will decrease the production of child 
pornography if it penalizes those who possess and view the 
product, thereby decreasing demand.” Id. at 109-110. De- 
spite its obvious relevance, respondents avoid any reference 
to Osborne anywhere in their brief. In any event, Congress’s 
findings that new computer technology could make it “al- 
most impossible” for the government to prove its case, and 
could render the existing prohibitions “unenforceable,” S. 
Rep. No. 358, supra, at 20, satisfy respondents’ more de- 
manding standard. 

9 

Respondents assert (Br. 37) that Congress’s assessment of 
the problem was inadequate because Congress failed to iden- 
tify any cases in which a child pornographer escaped convic- 
tion because the government failed to satisfy its burden of 
proof. But Congress need not await catastrophic conse- 
quences before legislating; to avert serious harms, Congress 
may rely on reasonable predictive judgments. Turner 
Broad. Sys. Inc. v. FCC, 520 U.S. 180, 195 (1997). Congress 
learned that defendants in a leading prosecution had as- 
serted that the government must refute the possibility that 
the images they possessed were created using computer 
technology rather than real minors. S. Rep. No. 358, supra, 
at 17. Congress also learned that the government was able 
to refute the defense in that case by matching the depictions 
to pornographic magazines that predated the existence of 
computer imaging software, but that magazine archives will 
have increasingly less value since child pornography pro- 
duced today post-dates the arrival of such software. Ibid. 
Congress therefore had a strong basis for concluding that 
the very existence of sexual explicit images that are virtu- 
ally indistinguishable from photographs of real minors 
engaged in sexually explicit conduct would pose a serious 
danger to future prosecutions involving recently created 
child pornography. 

Recent experience bears out Congress’s judgment. In 
United States v. Fox, 248 F.3d 394, 403 (5th Cir. 2001), the 
government’s computer expert admitted on cross-examina- 
tion that there was no way to determine whether the indivi- 
duals depicted even exist. That concession did not hinder 
the prosecution because the defendant was charged under 
the “appears to be” prohibition. In United States v. Cole- 
man, 54 M.J. 869 (A.C.M.R. 2001), the court upheld a guilty 
plea to possession of sexually explicit depictions involving 
real minors, in violation of 18 U.S.C. 2251 (1994 & Supp. V 
1999), because the defendant admitted that he possessed 

10 

such images. The court cautioned, however, that “[h]ad 
appellant pled not guilty and presented evidence that the 
images were computer-generated, the government may have 
had difficulty proving that real children were depicted in 
these images.” 54 M.J. at 873. 

Respondents argue (Br. 37-38) that, if Congress wanted to 
restrict a particular reasonable doubt defense that could 
endanger prosecutions, it should have focused its efforts on 
that defense. But by prohibiting distribution and possession 
of depictions that “appear to be” or that “convey the impres- 
sion” that minors are engaged in sexually explicit conduct, 
Congress effectively eliminated the problematic defense. 
Respondents offer no alternative, much less one that could 
have accomplished Congress’s goal as effectively. 

Respondents argue (Br. 38) that eliminating the govern- 
ment’s burden to prove that depictions involve real children 
violates the Due Process Clause, because it relieves the gov- 
ernment of the burden of proving an essential element of the 
offense. But the new prohibitions establish new offenses 
with different elements, and the Due Process Clause simply 
requires the government to prove beyond a reasonable 
doubt each element of the new offenses. In re Winship, 397 
U.S. 358, 364 (1970). Since the involvement of real minors in 
the depiction is not an element of the new offenses, the Due 
Process Clause does not require the government to prove it. 

Respondents similarly err (Br. 38) in contending that re- 
lieving the government of the burden of proving that images 
are of real children violates the First Amendment. In re- 
sponse to evidence that there is a serious danger that 
harmful conduct will otherwise escape detection and pro- 
secution, Congress may adopt stricter prohibitions that mini- 
mize that risk. For example, in Burson v. Freeman, 504 U.S. 
191 (1992), the Court upheld a state statute that prohibited 
the solicitation of votes near a polling place in order to guard 
against voter interference. The Court rejected the argu- 

11 

ment that the First Amendment required the State to pur- 
sue its interest in preventing interference through a direct 
prohibition against such conduct, reasoning that “because 
law enforcement officers generally are barred from the 
vicinity of the polls * * *, many acts of interference would 
go undetected.” Id. at 207. 

In Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978), 
the Court upheld the constitutionality of a rule prohibiting a 
lawyer from soliciting a client in person based on the po- 
tential for overreaching by the lawyer. The Court concluded 
that the First Amendment did not require the government 
to prove overreaching in each case, because “in-person solici- 
tation is not visible or otherwise open to public scrutiny,” 
and “[o]ften there is no witness other than the lawyer and 
the lay person whom he has solicited, rendering it difficult or 
impossible to obtain reliable proof of what actually took 
place.” Id. at 466 

Similarly, in Ferber, the Court upheld the application of 
New York’s child pornography law to material produced out- 
side the State in part because “[i]t is often impossible to 
determine where such material is produced.” 458 U.S. at 
765-766 & n.19; see also FEC v. Colorado Republican Fed. 
Campaign Comm., 121 S. Ct. 2351, 2366-2370 (2001) (uphold- 
ing constitutionality of limits on coordinated expenditures 
because they minimize the danger that impermissible contri- 
butions can be disguised as coordinated expenditures and 
because directly combating circumvention is difficult as a 
practical matter); Hill v. Colorado, 530 U.S. 703, 729 (2000) 
(upholding constitutionality of a state statute that prohibited 
all close approaches of another person near a health care fa- 
cility, not just physically harassing ones, on the ground that 
“individualized characterization of each individual movement 
is often difficult to make accurately”); Regan v. Time, Inc., 
468 U.S. 641, 656-659 (1984) (upholding constitutionality of 
federal statute that makes it unlawful to publish an image of 

12 

the dollar bill unless it is in black and white and 3/4 or 1 1/2 
times the size of the bill itself without requiring proof that 
the image could be used to facilitate counterfeiting); id. at 
700-704 (Stevens, J., concurring in the judgment in part and 
dissenting in part). 

The principle involved in those cases is controlling here. 
In order to combat the danger that those who possess and 
distribute depictions of actual children engaged in sexually 
explicit conduct will escape detection and prosecution, Con- 
gress could constitutionally prohibit the possession and 
distribution of virtually indistinguishable depictions. 

2. The “appears to be” and “conveys the impression” 
prohibitions are also supported by a second compelling 
interest—protecting children from becoming victims of 
abuse by pedophiles. Pedophiles use child pornography to 
seduce minors into sexual activity, and material that is 
virtually indistinguishable from depictions involving real 
children can be as effective in seducing children into sexual 
activity as depictions of real minors. 18 U.S.C. 2251 note 
(Supp. V 1999) (Finding 3). The government’s interest in 
protecting minors against such abuse is just as compelling as 
the government’s interest in preventing minors from being 
used in the production of child pornography. Ferber, 458 
U.S. at 757 (“The prevention of sexual exploitation and abuse 
of children constitutes a government objective of surpassing 
importance.”). 

Respondents contend (Br. 33) that the First Amendment 
forbids Congress from relying on a theory that child porno- 
graphy conveys a message that affects the thoughts and 
feelings of children. Congress, however, was not concerned 
with the thoughts and feelings of children as such. Instead, 
its concern was that pedophiles commonly use child porno- 
graphy to subject minors to sexual abuse. Congress regard- 
ed the material covered by the CPPA as a tool of the crime 

13 

of child abuse much like burglars’ tools are instruments of 
the crime of burglary. 

That basis for the CPPA is fully consistent with the First 
Amendment. There is no First Amendment right to show 
minors the kind of sexual explicit material covered by the 
CPPA. Ginsberg v. New York, 390 U.S. 629, 638-641 (1968). 
Nor does the First Amendment protect the use of speech or 
writings to commit a crime. Ferber, 458 U.S. at 762 (relying 
on Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 
(1949)). Significantly, in upholding a state prohibition 
against the possession of child pornography, the Court in 
Osborne relied in part on the State’s interest in preventing 
pedophiles from using child pornography to seduce children 
into sexual activity. 495 U.S. at 111. 

Respondents make no effort to explain why the principles 
involved in Ginsberg and Giboney and the decision in Os- 
borne do not justify Congress’s decision to ban the materials 
covered by the CPPA in order to prevent them from being 
used to abuse children sexually. Instead, respondents rely 
on cases (Br. 33) holding that adults cannot be limited to 
material that is suitable for children and that regulation of 
speech based on listener reaction is generally disfavored. 
None of those cases addresses the constitutionality of regu- 
lating visual depictions having little or no value based on 
evidence that they are used as tools for the abuse of children. 
Osborne does address that issue, and it makes clear that it is 
legitimate for the government to rely in part on that justifi- 
cation to support a prohibition against the possession of child 
pornography. 

Respondents argue (Br. 32) that there is insufficient evi- 
dence that material covered by the CPPA has been used to 
seduce children into sexual activity. The “appears to be” and 
“conveys the impression” prohibitions, however, cover depic- 
tions involving actual minors, and Congress had abundant 
evidence that such depictions have been used to seduce 

14 

children into sexual activity. Gov’t Br. 33-37. Moreover, 
Congress could rely on common sense to conclude that 
depictions that are virtually indistinguishable from depic- 
tions of actual minors children engaged in sexually explicit 
conduct pose the same danger. Congress also heard expert 
testimony confirming that common-sense judgment. Gov’t 
Br. 36. 

Congress’s tool-of-abuse rationale would not justify ban- 
ning all non-obscene depictions of adults engaged in sexually 
explicit conduct simply because they too are often used to 
seduce children. Resp. Br. 25. That category of depictions 
includes a significant amount of material that has serious 
value and that does not violate community standards of de- 
cency. Miller, 413 U.S. at 23. In contrast, the material at 
issue here has little or no value and almost uniformly vio- 
lates community standards of decency. 

Respondents argue (Br. 34) that the First Amendment 
requires Congress to vindicate its compelling interest by re- 
lying entirely on laws that prohibit sexual abuse. That 
solution ignores the realities of the situation. The process of 
seduction takes place in secret, and its victims rarely seek 
help before it is too late. A prohibition against sexual abuse 
is therefore inadequate to protect minors from being abused 
by pedophiles. In order to better protect children from such 
dangers, it is also necessary to remove from the hands of 
pedophiles a common tool of abuse. 

3. The government’s compelling interests are furthered 
by the CPPA’s prohibitions in two additional ways. First, 
because child pornography is used as a form of currency to 
purchase additional child pornography, banning the material 
covered by the CPPA helps to stamp out the market for 
sexually explicit depictions of actual minors. Second, be- 
cause pedophiles use child pornography as a mechanism to 
whet their appetite for sexual abuse, the CPPA’s prohibi- 

15 

tions further the government’s compelling interest in pro- 
tecting children from such abuse. 

a. Respondents argue (Br. 35) that a prohibition against 
trading material covered by the CPPA for other child porno- 
graphy would be a more narrowly tailored way to address 
Congress’s concern that material covered by the CPPA fuels 
the child pornography market. Prohibiting such material 
from being distributed and possessed, however, is a far more 
effective solution. If it is not distributed or possessed, there 
is no risk that it will be exchanged. 

Reliance on that rationale also does not lead to the con- 
clusion that non-obscene depictions of adults engaged in 
sexual explicit conduct could also be banned. Resp. Br. 36. 
There is no evidence that non-obscene adult material is part 
of the same market. Moreover, as previously discussed, un- 
like the material at issue here, much non-obscene adult 
material has serious value and does not violate community 
standards of decency. 

b. Respondents argue (Br. 33) that the whetting-the- 
appetite rationale conflicts with cases holding that regulation 
of speech based on the effect on the viewer is generally dis- 
favored. But that general principle has no application here. 
Because the depictions have little or no value, the crime is 
secretive in nature, and the victims lack both the physical 
ability and maturity in judgment to protect themselves from 
their abusers, Congress may remove from pedophiles a 
preferred mechanism for stimulating their appetites for 
abuse. See also Gov’t Br. 31-32.2 

2 Respondents’ challenge (Br. 32-36) to the factual predicate for the 
single-market and whetting-the-appetite rationales is also unfounded. 
There was ample evidence that pedophiles exchange depictions of actual 
minors engaged in sexually explicit conduct and use such depictions to 
whet their appetites for sexual abuse. Gov’t Br. 38-39. Since the material 
covered by the CPPA is “virtually indistinguishable” from such material, 
Congress logically concluded that it posed the same dangers. 

16 

D. The CPPA Is Not Substantially Overbroad 

Respondents contend (Br. 39-45) that the “appears to be” 
and “conveys the impression” prohibitions are substantially 
overbroad. But the material covered by those prohibitions 
consists largely of sexually explicit images of pre-pubescent 
children or persons who otherwise clearly appear to be 
under the age of 18. See p. 4, supra. Such depictions have 
little or no value, except to pedophiles, and the government’s 
compelling interests in eliminating their availability over- 
whelmingly outweighs whatever slight value they may have. 
The CPPA is therefore not substantially overbroad, and 
whatever overbreadth may exist may be avoided through 
case-by-case adjudication. Ferber, 458 U.S. at 773-774. 

In support of their claim of substantial overbreadth, re- 
spondents assert (Br. 39-46) that the “appears to be” and 
“conveys the impression” prohibitions apply to artistic con- 
ceptions of minors in sexual poses, and that the affirmative 
defense provides inadequate protection. We have already 
addressed respondents’ mistaken view that the CPPA ap- 
plies to artistic conceptions of minors in sexual poses. We 
therefore turn to respondents’ criticisms of the affirmative 
defense. 

Respondents argue (Br. 42-43) that the affirmative de- 
fense is inadequate to protect artists like Jim Gingerich who 
paint images that come entirely from their minds. Such 
images, however, are quite unlikely to be virtually indistin- 
guishable from photographs of actual children engaged in 
sexually explicit conduct. Unless they are, they are not 
covered by the CPPA in the first place. 

Respondents further contend (Br. 43) that the affirmative 
defense is inadequate to protect persons who are not 
involved in the production of material because they have no 
way of knowing whether adults have been used in the pro- 
duction. If the image appears to be a prepubescent minor, or 

17 

otherwise clearly appears to be someone under the age of 18, 
however, there is no such difficulty. In a borderline case, 
those not involved in the production of the material can 
check with those who are. Federal law requires the produc- 
ers of sexually explicit material to create and maintain 
records of the performers’ names and ages, and to attach a 
statement to such material stating where the records may be 
found. 18 U.S.C. 2257; see American Library Ass’n v. Reno, 
33 F.3d 78 (D.C. Cir. 1994), cert. denied, 515 U.S. 1158 (1995). 
If such information is not available, however, rather than 
running the risk that they will be helping to sustain the child 
pornography market, persons may simply refrain from dis- 
tributing or possessing the material. 

Respondents argue (Br. 44) that the affirmative defense 
is inadequate to protect respondents Bold Type Inc., Jim 
Gingerich, and Ron Raffaelli, because they “possess” the 
depictions they create and sell, and the affirmative defense 
does not apply to unlawful possession. Respondents’ concern 
is misguided. The affirmative defense applies to any person 
who transports, receives, distributes, reproduces for distri- 
bution, sells, or possesses with the intent to sell material 
that might otherwise be covered by the Act. 18 U.S.C. 
2252(c) (Supp. V 1999) (affirmative offense applies to persons 
charged with violating paragraphs (1), (2), (3), or (4)). Re- 
spondents each engage in at least one of those activities, and 
the affirmative defense necessarily applies to the possession 
of such material incident to engaging in one of those activi- 
ties. Because possession is an invariable concomitant of 
those activities, any other interpretation would deprive the 
defense of any real meaning.3 

3 Because respondents are all engaged in activities as to which the 
affirmative defense applies, there is no need to decide whether the Con- 
stitution requires a similar defense for persons whose possession of adult 
material is not incident to one of those activities. For the same reason, it 

18 

E. The CPPA Is Not Unconstitutionally Vague 

Finally, respondents err in contending (Br. 45-49) that the 
“appears to be” and “conveys the impression” prohibitions 
are unconstitutionally vague. The CPPA’s standard for 
determining coverage is whether a reasonable unsuspecting 
viewer would consider the depiction to be virtually indistin- 
guishable from a photograph of an actual individual under 
the age of 18 engaged in sexually explicit conduct. Hilton, 
167 F.3d at 75; 18 U.S.C. 2251 note (Supp. V 1999) (Finding 

5). That standard provides adequate guidance to those who 
must comply with the law, to law enforcement officers, and 
to juries. 

Respondents contend (Br. 47) that it is inappropriate to 
derive the applicable standard from congressional findings 
rather than from the statute itself. But the congressional 
findings are part of the statute itself. Moreover, the 
congressional findings simply clarify the meaning of the 
prohibitions, and it is entirely appropriate to interpret a 
statute in light of statutory findings. See p. 5, supra. Re- 
spondents’ further assertion (Br. 48) that the “reasonable 
person” component of the standard has no nexus to the 
statutory text is incorrect. When Congress referred to the 
“unsuspecting viewer,” 18 U.S.C. 2251 note (Supp. V 1999) 

is not necessary to decide whether possessors who can satisfy the terms of 
the affirmative defense have the mens rea required for conviction. Hilton, 
167 F.3d at 75-76. Similarly, because none of the respondents claims to be 
a creator of computer-generated fictional images that are virtually in- 
distinguishable from photographs of real children engaged in sexually 
explicit conduct, there is no need to decide whether the Constitution 
requires some kind of defense for such depictions. The resolution of that 
question would be particularly premature because respondents have not 
identified a single example of an entirely fictional computer-generated 
image (as opposed to one that is morphed from a real minor in an innocent 
pose) that would satisfy the virtually indistinguishable standard. 

19 

(Finding 5), it plainly meant a “reasonable” unsuspecting 
viewer, not an “unreasonable” one. 

Respondents argue (Br. 48) that the standard is still un- 
constitutionally vague because reasonable persons may dis- 
agree about whether the standard is satisfied in particular 
cases. This Court’s obscenity decisions refute that con- 
tention. Under those decisions, two of the three prongs of 
the inquiry—appeal to the prurient interest and patent 
offensiveness—are decided from the perspective of the 
“average person, applying contemporary community stan- 
dards.” Miller, 413 U.S. at 24, 30. The third inquiry— 
serious value— is decided from the perspective of a “rea- 
sonable person.” Pope v. Illinois, 481 U.S. 497, 501 (1987). 
In Miller, the Court held that its three-part test for deter- 
mining obscenity is not unconstitutionally vague, explaining 
that “these specific prerequisites will provide fair notice to a 
dealer in [obscene] materials that his public and commercial 
activities may bring prosecution.” 413 U.S. at 27. The Court 
added that “[t]he mere fact juries may reach different 
conclusions as to the same material does not mean that 
constitutional rights are abridged.” Id. at 26 n.9; see also 
Hamling v. United States, 418 U.S. 87, 104-105 (1974) (“A 
juror is entitled to draw on his own knowledge of the views 
of the average person in the community or vicinage from 
which he comes for making the required determination [on 
the first two prongs], just as he is entitled to draw on his 
knowledge of the propensities of a ‘reasonable’ person in 
other areas of the law.”). 

In any event, the reasonable person test for determining 
whether material is covered by the CPPA is unlikely to lead 
to disagreement in the vast majority of cases. Reasonable 
persons can easily come to a consensus when the image has 
the characteristics of a prepubescent minor or when the 
image otherwise clearly appears to be a minor. “That there 
may be marginal cases in which it is difficult to determine 

20 

the side of the line on which a particular fact situation falls is 
no sufficient reason to hold the language too ambiguous to 
define a criminal offense.” Miller, 413 U.S. at 28 n.10 
(quoting United States v. Petrillo, 332 U.S. 1, 7 (1947)). 

* * * * * 

For the foregoing reasons and the reasons stated in the 
opening brief, the judgment of the court of appeals should be 
reversed. 

Respectfully submitted. 

THEODORE B. OLSON 

Solicitor General 

AUGUST 2001