No. 00-795 

In the Supreme Court of the United States 

JANET RENO, ATTORNEY GENERAL 

OF THE UNITED STATES, ET AL., PETITIONERS 

v. 

THE FREE SPEECH COALITION, ET AL. 

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

PETITION FOR A WRIT OF CERTIORARI 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

DAVID W. OGDEN 

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, 
prohibits, inter alia, the shipment, distribution, receipt, 
reproduction, sale, or 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. 
IV 1998). It also contains a similar prohibition con- 
cerning 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 visual depiction of a minor engaging in 
sexually explicit conduct.” 18 U.S.C. 2252A, 2256(8)(D) 
(Supp. IV 1998). The question presented is whether 
those prohibitions violate the First Amendment to the 
Constitution. 

(I) 

PARTIES TO THE PROCEEDINGS 

Petitioners are Janet Reno, 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. 

(II) 

TABLE OF CONTENTS 

Page 

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

Jurisdiction ...................................................................................... 2 

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

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

Reasons for granting the petition ............................................... 
12 

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

Appendix A ..................................................................................... 
1a 

Appendix B ..................................................................................... 
44a 

Appendix C ..................................................................................... 
50a 

Appendix D ..................................................................................... 
66a 

Appendix E ..................................................................................... 
67a 

TABLE OF AUTHORITIES 

Cases: 

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

20 

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

17 

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

18 

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

9, 12, 15, 

17, 18, 19, 20 

Osborne v. Ohio, 495 U.S. 103 (1990) ....................... 
10, 16, 17 

Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 

(1997) ........................................................................................ 16 

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

1999) ......................................................................................... 13, 14 

United States v. Gainey, 380 U.S. 63 (1965) ..................... 

13 

United States v. Hilton, 167 F.3d 61 (1st Cir.), 

cert. denied, 120 S. Ct. 115 (1999) ........................ 

10, 11, 13, 14, 

17, 18, 19, 20 

United States v. Mento, No. 99-4813, 2000 WL 
1648878 (4th Cir. Nov. 3, 2000) ............................................ 

13, 14 

Constitution and statute: 

U.S. Const. Amend. I ............................. 2, 8, 9, 13, 15, 16, 17, 19 

(III) 

IV 

Statute—Continued: Page 

Child Pornography Prevention Act of 1996, 

18 U.S.C. 2251 et seq.: 

18 U.S.C. 2251 (Supp. IV 1998) ............ 

3, 4, 5, 6, 16, 17, 67a 

18 U.S.C. 2252(a)(1)(A) .................................................... 

2 

18 U.S.C. 2252(a)(4)(B)(i) ................................................. 

2 

18 U.S.C. 2252A (Supp. IV 1998) ............................... 

12, 71a 

18 U.S.C. 2252A(a) (Supp. IV 1998) ............................. 

3, 71a 

18 U.S.C. 2252A(a)(1)-(5) (Supp. IV 1998) ......... 

18, 71a-72a 

18 U.S.C. 2252A(b)(1) (Supp. IV 1998) .......................... 

7, 73a 

18 U.S.C. 2252A(b)(2) (Supp. IV 1998) .......................... 

7, 73a 

18 U.S.C. 2252A(c) (Supp. IV 1998) .............. 

6, 19, 73a-74a 

18 U.S.C. 2252A(d) (Supp. IV 1998) .............................. 

7, 74a 

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

3 

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

3, 75a 

18 U.S.C. 2256(8)(A) (Supp. IV 1998) ............................ 

3, 75a 

18 U.S.C. 2256(8)(B) (Supp. IV 1998) .................. 

3, 12, 75a 

18 U.S.C. 2256(8)(C) (Supp. IV 1998) ............................ 

3, 75a 

18 U.S.C. 2256(8)(D) (Supp. IV 1998) ..... 

3, 12, 17, 75a-76a 

Miscellaneous: 

Child Pornography Prevention Act of 1995: Hearing 

Before the Senate Comm. on the Judiciary, 104th 
Cong., 2d Sess. (1996) ............................................................ 

3, 5, 6 
S. Rep. No. 358, 104th Cong., 2d Sess. (1996) .................. 4, 5, 17 

In the Supreme Court of the United States 

No. 00-795 

JANET RENO, ATTORNEY GENERAL 

OF THE UNITED STATES, ET AL., PETITIONERS 

v. 

THE FREE SPEECH COALITION, ET AL. 

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

PETITION FOR A WRIT OF CERTIORARI 

The Solicitor General, on behalf of the Attorney 
General of the United States and the United States 
Department of Justice, respectfully petitions for a writ 
of certiorari to review the judgment of the United 
States Court of Appeals for the Ninth Circuit in this 
case. 

OPINIONS BELOW 

The opinion of the court of appeals (App., infra, 1a- 
43a) is reported at 198 F.3d 1083. The opinion of the 
district court (App., infra, 50a-66a) is unreported. The 
order denying rehearing (App., infra, 44a-49a) is re- 
ported at 220 F.3d 1113. 

(1) 

2 

JURISDICTION 

The judgment of the court of appeals was entered on 
December 17, 1999. A petition for rehearing was denied 
on July 19, 2000. App., infra, 44a. 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 jurisdiction of this Court is 
invoked under 28 U.S.C. 1254(1). 

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED 

The First Amendment to the United States Consti- 
tution provides that “Congress shall make no law * * * 
abridging the freedom of speech.” The pertinent 
provisions of the Child Pornography Prevention Act 
are reprinted in an appendix to this petition. App., 
infra, 67a-76a. 

STATEMENT 

For almost two decades, federal law has prohibited 
the production and distribution of child pornography. 
Before the enactment of the Child Pornography Pre- 
vention Act of 1996 (CPPA), the prohibitions applied 
only to visual depictions of real children engaged 
in sexually explicit conduct. See, e.g., 18 U.S.C. 
2252(a)(1)(A) and (4)(B)(i). Responding to concerns 
raised by advances in computer technology, the CPPA 
extends the prohibitions relating to child pornography 
to visual depictions of children engaged in sexually 
explicit conduct, regardless of whether real children are 
involved in the production of those images. The 
provisions of the CPPA that effect that extension are at 
issue here. 

1. a. The CPPA prohibits the knowing shipment, 
receipt, distribution, reproduction, sale, or possession of 

3 

child pornography. 18 U.S.C. 2252A(a) (Supp. IV 1998). 
In provisions that are not at issue here, the CPPA 
defines child pornography to include any visual de- 
piction that involves the use of a minor engaging in 
sexually explicit conduct, or that has been created, 
adapted, or modified to appear that an identifiable 
minor is engaging in sexually explicit conduct.1 18 
U.S.C. 2256(8)(A) and (C) (Supp. IV 1998). In the pro- 
visions at issue here, the CPPA further defines child 
pornography to include: (1) any visual depiction that 
“is, or appears to be, of a minor engaging in sexually 
explicit conduct,” 18 U.S.C. 2256(8)(B) (Supp. IV 1998); 
and (2) 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 visual depiction of a minor engaging in 
sexually explicit conduct,” 18 U.S.C. 2256(8)(D) (Supp. 
IV 1998). 

b. Congress enacted into law in the CPPA 13 legis- 
lative findings that explain the reasons that Congress 
broadened the prohibitions relating to child porno- 
graphy. 18 U.S.C. 2251 note (Supp. IV 1998) (Con- 
gressional Findings). Those findings are drawn from 
information presented in congressional hearings on the 
subject of child pornography. Child Pornography 
Prevention Act of 1995: Hearing Before the Senate 
Comm. on the Judiciary, 104th Cong., 2d Sess. 35 
(1996) (Senate Hearing). The Senate Report accom- 

1 The CPPA defines “sexually explicit conduct” as “actual or 
simulated - (A) sexual intercourse * * * ; (B) bestiality; (C) 
masturbation; (D) sadistic or masochistic abuse; or (E) lascivious 
exhibition of the genitals or pubic area of any person.” 18 U.S.C. 
2256(2). “Minor” is defined as “any person under the age of eigh- 
teen years.” 18 U.S.C. 2256(1). 

4 

panying the CPPA also illuminates the basis for the 
CPPA. S. Rep. No. 358, 104th Cong., 2d Sess. (1996). 

In its statutory findings, Congress determined that 
“new photographic and computer imagin[g] technolo- 
gies 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. 
IV 1998) (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. IV 1998) (Finding 
6(A)). Congress found those technological developments 
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. IV 1998) (Finding 3). In particular, “a child who 
is reluctant to engage in sexual activity with an adult 

* * * can sometimes be convinced by viewing depic- 
tions of other children ‘having fun’ participating in such 
activity.” 18 U.S.C. 2251 note (Supp. IV 1998) (Finding 

3). Congress determined 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. IV 1998) (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 

5 

viewer to the pathology 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. 
IV 1998) (Finding 4). Congress found that child porno- 
graphy can have those pernicious effects, regardless of 
whether the pornography takes the form of computer- 
generated images or photographs of real children. 18 
U.S.C. 2251 note (Supp. IV 1998) (Finding 8). 

Third, Congress was concerned that advancing 
technology could render unenforceable the prohibitions 
against the distribution and possession of child porno- 
graphy involving real children. 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 become 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 
pornography produced using actual children would 
be rendered unenforceable and pedophiles who 
possess 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 

6 

the market for the production of visual depictions that 
involve real children. Id. at 91. 

Based on those considerations, Congress concluded 
that there are “compelling” governmental interests in 
eliminating child pornography that takes the form of 
computer-generated images of children engaged in 
sexual activity. 18 U.S.C. 2251 note (Supp. IV 1998) 
(Finding 13). Those compelling interests are impli- 
cated, Congress concluded, when the computer-gen- 
erated images of children engaged in sexual activity 
“are virtually indistinguishable to the unsuspecting 
viewer from photographic images of actual children 
engaging in such conduct.” 18 U.S.C. 2251 note (Supp. 
IV 1998) (Finding 13). 

c. The CPPA establishes affirmative defenses that 
limit the reach of the Act. The CPPA provides an 
affirmative defense to a charge of unlawful shipment, 
receipt, distribution, reproduction, or sale of child 
pornography if the defendant can show that “(1) the 
alleged child pornography was produced using an actual 
person or persons engaging in sexually explicit conduct; 
(2) each such person was an adult at the time the 
material was produced; and (3) the defendant did not 
advertise, promote, present, describe, or distribute the 
material in such a manner as to convey the impression 
that it is or contains a visual depiction of a minor 
engaging in sexually explicit conduct.” 18 U.S.C. 
2252A(c) (Supp. IV 1998). In addition, as amended in 
1998, the CPPA provides an affirmative defense to a 
charge of possession of child pornography if the 
defendant can show that he “(1) possessed less than 
three images of child pornography; and (2) promptly 
and in good faith, and without retaining or allowing any 
person, other than a law enforcement agency, to access 
any image or copy thereof—(A) took reasonable steps 

7 

to destroy each such image; or (B) reported the matter 
to a law enforcement agency and afforded that agency 
access to each such image.” 18 U.S.C. 2252A(d) (Supp. 
IV 1998). 

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 convic- 
tion relating to child pornography, in which case the 
sentence shall be no less than five years’ imprisonment 
and no more than 30 years’ imprisonment. 18 U.S.C. 
2252A(b)(1) (Supp. IV 1998). A conviction on a charge 
of possession of child pornography carries a maximum 
penalty of five years’ imprisonment, unless the de- 
fendant has a prior conviction relating to child 
pornography, in which case the sentence shall be no less 
than two years’ imprisonment and no more than ten 
years’ imprisonment. 18 U.S.C. 2252A(b)(2) (Supp. IV 
1998). 

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 and the Department of Justice 
seeking to invalidate certain provisions of the CPPA. 
App., infra, 3a. The Free Speech Coalition is a trade 
association 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 CPPA is vague, overbroad, and an 
impermissible prior restraint on their speech to the 
extent that it applies to visual depictions that do not 
involve actual children. Id. at 50a, 54a. 

8 

On cross-motions for summary judgment, the district 
court upheld the constitutionality of the Act. App., 
infra, 50a-66a. The court held that the Act should be 
evaluated under intermediate First Amendment 
scrutiny, because it is designed to counteract the effect 
that child pornography has on innocent children and is 
not intended to outlaw the ideas themselves. Id. at 58a. 
The court concluded that the Act readily satisfies inter- 
mediate scrutiny. Id. at 59a-62a. The court determined 
that the CPPA “clearly advances important and com- 
pelling government 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 also determined that “the CPPA bur- 
dens 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 Act is not 
overbroad. App., infra, 63a. The court found that, 
under a fair reading of the CPPA’s prohibitions and its 
affirmative 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 unconsti- 
tutionally vague. App., infra, 63a-64a. The court 
explained that the Act “clearly and specifically defines 
the prohibited conduct as the depiction of children— 
engaged in sexually explicit conduct.” Id. at 63a. 
Finally, the court concluded that, because the CPPA 
does not require advance approval for production or 
distribution of sexually explicit materials, it does not 
constitute an improper prior restraint on speech. Id. at 
65a. 

3. The court of appeals reversed. App., infra, 1a- 
43a. The court held that “the phrases ‘appears to be’ a 

9 

minor, and ‘convey[s] the impression’ that the depiction 
portrays a minor, are vague and overbroad and thus do 
not meet the requirements of the First Amendment.” 
Id. at 2a. 

a. Finding that the CPPA restricts speech based on 
its content, the court of appeals held that the CPPA can 
survive First Amendment scrutiny only if the govern- 
ment can show that it is narrowly tailored to further a 
compelling interest. App., infra, 14a-15a. Relying on 
New York v. Ferber, 458 U.S. 747 (1982), the court 
further held that government has a compelling interest 
in regulating child pornography only when its goal is 
“the protection of the actual children used in the 
production of child pornography.” App., infra, 17a. 
Applying that understanding of Ferber, the court held 
that the government’s interests in preventing pedo- 
philes from using child pornography to seduce children 
into sexual activity and to stimulate their sexual ap- 
petites are not compelling. In particular, the court 
stated that “any victimization of children that may arise 
from pedophiles’ sexual responses to pornography 
apparently depicting children engaging in explicit 
sexual activity is not a sufficiently compelling justifi- 
cation for CPPA’s speech restrictions.” Id. at 19a. The 
court also concluded that there is not a demonstrated 
link between computer-generated child pornography 
and the subsequent sexual abuse of children. Id. at 20a. 
The court of appeals next held that the CPPA is 
unconstitutionally vague. App., infra, 23a-24a. It 
concluded 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 

10 

24a. The court declined to follow the First Circuit’s 
holding in United States v. Hilton, 167 F.3d 61, cert. 
denied, 120 S. Ct. 115 (1999), that the CPPA is not 
unconstitutionally vague. App., infra, 23a. 

Again disagreeing with the First Circuit’s decision in 
Hilton, the court also held that the CPPA is unconsti- 
tutionally overbroad. App., infra, 25a-27a. The court 
reiterated its earlier conclusion that Congress may 
regulate child pornography only in order to prevent the 
harm caused to children involved in its production. Id. 
at 26a. And the court concluded that “the CPPA is 
insufficiently related” to that interest “to justify its 
infringement of protected speech.” Ibid. 

b. Judge Ferguson dissented. App., infra, 29a-43a. 
Judge Ferguson disagreed with the majority’s holding 
“that preventing harm to depicted children is the only 
legitimate justification for banning child pornography.” 
Id. at 32a. He concluded that, under Osborne v. Ohio, 
495 U.S. 103 (1990), Congress has a legitimate interest 
in prohibiting the dissemination of images that can be 
used to seduce children into sexual activity, and in 
destroying the child pornography market. App., infra, 
32a-33a. Judge Ferguson also criticized the majority 
for failing to recognize that advances in computer- 
imaging technology are threatening to undermine the 
government’s ability to enforce existing child porno- 
graphy prohibitions. Id. at 34a-35a. Judge Ferguson 
concluded that “Congress’ interests in destroying the 
child pornography market and in preventing the 
seduction of minors outweigh virtual child porno- 
graphy’s exceedingly modest social value.” Id. at 37a- 
38a. 

Judge Ferguson also concluded that the CPPA is not 
overbroad. App., infra, 38a-41a. Because the Act 
targets only those images that are “indistinguishable” 

11 

from photographic images of actual children, the Act 
does not, in his view, reach “everyday artistic expres- 
sions like paintings, drawings, and sculptures that 
depict youthful looking subjects in a sexual manner.” 
Id. at 39a. Judge Ferguson also noted that an affirma- 
tive defense shields 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. App., infra, 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 unsuspecting viewer would consider the 
depiction to be an actual individual under the age of 
eighteen engaging in sexual activity.” Id. at 42a 
(quoting Hilton, 167 F.3d at 75). Judge Ferguson also 
pointed out 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 
rehearing en banc were denied. App., infra, 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, App., infra, 45a-49a, observing that the panel 
decision “creates a conflict with our sister circuits on an 
issue of exceptional importance,” id. at 45a. Judge 
Wardlaw faulted the panel majority for failing to 
recognize that the CPPA is supported by at least two 
compelling interests: the interest in preventing ped- 

12 

philes from using child pornography to seduce children 
into sexual activity, and the interest in effectively 
enforcing the prohibitions against the production of 
visual depictions involving real children. Id. at 46a-47a. 
Finally, Judge Wardlaw faulted the majority for dis- 
missing congressional findings concerning the danger to 
real children from rapidly advancing computer technol- 
ogy. Id. at 48a-49a. 

REASONS FOR GRANTING THE PETITION 

The court of appeals in this case invalidated as 
unconstitutional two critical provisions of the Child 
Pornography Prevention Act. That constitutional ruling 
squarely conflicts with decisions of the First, Eleventh, 
and Fourth Circuits. It is also incorrect. The 
provisions of the CPPA invalidated by the court of 
appeals constitutionally advance the government’s 
compelling interest in the “prevention of sexual exploi- 
tation and abuse of children.” New York v. Ferber, 458 
U.S. 747, 757 (1982). Review by this Court is clearly 
warranted. 

A. The court of appeals in this case invalidated two 
key provisions of the CPPA. 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. 
IV 1998). The second prohibits the dissemination and 
possession of 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 
sexually explicit conduct.” 18 U.S.C. 2252A, 2256(8)(D) 
(Supp. IV 1998). Those two provisions are designed to 
address the serious dangers to children posed by 
computer-generated child pornography. 

13 

The court of appeals definitively held those two pro- 
visions unconstitutional. It expressly concluded that 
“the phrases ‘appears to be’ a minor, and ‘convey[s] the 
impression’ that the depiction portrays a minor, are 
vague and overbroad and thus do not meet the 
requirements of the First Amendment.” App., infra, 
2a. The court of appeals’ invalidation of two critical 
provisions of a recent Act of Congress clearly warrants 
this Court’s review. See United States v. Gainey, 380 
U.S. 63, 65 (1965) (certiorari granted “to review the 
exercise of the grave power of annulling an Act of 
Congress”). 

B. Review is also warranted because the court of 
appeals’ constitutional ruling conflicts with decisions of 
the First, Eleventh, and Fourth Circuits. United States 

v. Hilton, 167 F.3d 61 (1st Cir.), cert. denied, 120 S. Ct. 
115 (1999); United States v. Acheson, 195 F.3d 645 (11th 
Cir. 1999); United States v. Mento, No. 99-4813, 2000 
WL 1648878 (4th Cir. Nov. 3, 2000). All three circuits 
have upheld the constitutionality of the CPPA, reject- 
ing identical First Amendment challenges. 

In Hilton, a defendant charged with unlawful pos- 
session of computer disks containing child pornography 
challenged the constitutionality of the CPPA on its face. 
The First Circuit rejected that facial challenge, ruling 
that the Act “neither impinges substantially on pro- 
tected expression nor is so vague as to offend due 
process.” 167 F.3d at 65. It held that the Act’s 
coverage of material that appears to be of a minor 
engaged in sexually explicit conduct is supported by the 
government’s compelling interest in “safeguarding the 
welfare of children,” id. at 73, and that “[w]hatever 
overbreadth may exist at the edges [is] more 
appropriately cured through a more precise case-by- 
case evaluation of the facts in a given case.” Id. at 74. 

14 

The First Circuit also refused “to strike down the 
CPPA as unconstitutionally vague,” finding that “[t]he 
language of the statute affords an ordinary consumer of 
sexually explicit material adequate notice of the kinds 
of images to avoid.” Id. at 76-77. 

In Acheson, a defendant charged with receipt and 
possession of more than 500 computer images of child 
pornography challenged the facial validity of the CPPA. 
Like the First Circuit, the Eleventh Circuit rejected 
overbreadth and vagueness challenges to the statute, 
concluding that “the legitimate scope of the statute 
dwarfs the risk of impermissible applications,” 195 F.3d 
at 652, and that the “statute puts a reasonable person 
on notice as to what conduct is prohibited and provides 
adequate protection against arbitrary enforcement,” 
id. at 653. 

Most recently, in Mento, the Fourth Circuit likewise 
rejected a facial challenge to the CPPA. It ruled that 
the “appears to be” and “conveys the impression” pro- 
visions are supported by the government’s “com- 
pelling” interest in protecting “all children from sexual 
exploitation resulting from child pornography.” 2000 
WL 1648878, at *4. The Fourth Circuit held that the 
CPPA “does not burden substantially more material 
than necessary to further” that interest. Id. at *7. And 
it concluded that “the CPPA provides clear and 
adequate notice of the activity it regulates, such that 
ordinary citizens and those charged with enforcing the 
law may readily understand what is prohibited.” Ibid. 

The Ninth Circuit’s decision in this case is irrecon- 
cilable with the First Circuit’s decision in Hilton, the 
Eleventh Circuit’s decision in Acheson, and the Fourth 
Circuit’s decision in Mento. That conflict among the 
courts of appeals on the constitutionality of an Act of 
Congress warrants resolution by this Court. 

15 

C. Finally, review is warranted because the court 
of appeals erred in holding that the provisions at issue 
here are unconstitutional. Those provisions consti- 
tutionally advance the government’s compelling inter- 
est in the “prevention of sexual exploitation and abuse 
of children.” Ferber, 458 U.S. at 757. The court of 
appeals’ compelling interest, vagueness, and over- 
breadth rulings are all deeply flawed. 

1. a. The court of appeals read this Court’s decision 
in Ferber to hold that the government has a compelling 
interest in regulating child pornography only when its 
goal is “the protection of the actual children used in the 
production of child pornography.” App., infra, 17a. 
Based on that understanding of Ferber, the court of 
appeals held that the government’s interests in pre- 
venting pedophiles from using child pornography to 
seduce children into sexual activity and to stimulate 
their own sexual appetites are not compelling. Id. at 
19a. The court of appeals’ understanding of Ferber is 
simply incorrect. 

The prohibition against the dissemination of child 
pornography at issue in Ferber was designed to prevent 
the harm to children who become involved in the pro- 
duction of child pornography. In sustaining the validity 
of that prohibition against a First Amendment chal- 
lenge, however, the Court did not purport to restrict 
the government to pursuing that interest alone. The 
Court instead identified the relevant compelling 
interest supporting the suppression of child 
pornography as the “prevention of sexual exploitation 
and abuse of children.” Ferber, 458 U.S. at 757. That 
more general interest extends to all children who may 
be abused as a result of the dissemination of visual 
depictions of child pornography, not just children who 
are actually involved in the production of such material. 

16 

Osborne v. Ohio, 495 U.S. 103 (1990), further 
demonstrates that the government is not limited to 
protecting children involved in pornographic depictions. 
In that case, the Court sustained the constitutionality 
of a prohibition against the possession and viewing of 
child pornography. The Court expressly held that one 
state interest supporting that prohibition was 
preventing pedophiles from using pictures of child 
pornography to seduce other children into sexual 
activity. Id. at 111. 

Under Ferber and Osborne, the government’s inter- 
ests in preventing pedophiles from using child porno- 
graphy to seduce children into sexual activity and to 
stimulate their sexual appetites are compelling and 
fully justify the provisions at issue here. That is 
particularly true in light of Congress’s specific finding 
that computer-generated images of child pornography 
can be used for those purposes just as effectively as 
pictures of real children. 18 U.S.C. 2251 note (Supp. IV 
1998) (Finding 8).2 

b. Even if we assume, arguendo, that protecting 
children who participate in the production of child 
pornography is the only interest that may be con- 
sidered in the First Amendment analysis, that interest 
is directly implicated here. Congress found that 
advancing technology makes it increasingly difficult, if 
not impossible, to distinguish computer-generated from 

2 The court of appeals determined that there is not a demon- 
strated link between computer-generated child pornography and 
the subsequent sexual abuse of children. App., infra, 20a. 
Following hearings on the subject, however, Congress expressly 
determined that such a link exists. 18 U.S.C. 2251 note (Supp. IV 
1998) (Findings 3, 4, 8, 9, and 10). The court of appeals had no basis 
for disregarding that congressional judgment. Turner Broad. Sys., 
Inc. v. FCC, 520 U.S. 180, 195-196 (1997). 

17 

photographic depictions of children engaged in sexual 
activity. 18 U.S.C. 2251 note (Supp. IV 1998) (Finding 
6(A)); S. Rep. No. 358, supra, at 20. As a consequence, 
the government may find it impossible in many cases to 
prove that a pornographic image is of a real child. Ibid. 
The prohibitions at issue here ensure that people who 
disseminate or possess pornographic depictions of 
actual children will not escape punishment in those 
circumstances. 

In addition, computer-generated images of children 
engaged in sexually explicit conduct are often ex- 
changed for pictures of real children engaged in such 
conduct, adding fuel to the underground child porno- 
graphy industry. Hilton, 167 F.3d at 73. By prohibiting 
dissemination and possession of computer-generated 
images, the CPPA helps to stamp out the market for 
child pornography involving real children. See 
Osborne, 495 U.S. at 110; Ferber, 458 U.S. at 759-760. 

c. In sum, the provisions at issue here, like the 
provisions upheld in Ferber and Osborne, advance the 
government’s compelling interest in the “prevention of 
sexual exploitation and abuse of children.” Ferber, 458 
U.S. at 757. The court of appeals erred in concluding 
otherwise.3 

2. The court of appeals’ vagueness ruling is equally 
flawed. The court concluded that the phrases “appears 

3 The prohibition against the promotion of visual depictions so 
as to convey the impression that the material is child pornography, 
18 U.S.C. 2256(8)(D) (Supp. IV 1998), is independently justified 
under Ginzburg v. United States, 383 U.S. 463 (1966). There, the 
Court held that the First Amendment does not protect commercial 
entities that engage in “the sordid business of pandering” by 
“deliberately emphasiz[ing] the sexually provocative aspects of 
[their products] in order to catch the salaciously disposed.” Id. at 
472. 

18 

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.” App., infra, 24a. Those criticisms are 
seriously misguided. 

As the First Circuit held in Hilton, the statutory 
standard is an “objective one.” 167 F.3d at 75. The 
relevant inquiry 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.” Ibid. That standard can readily be admini- 
stered, particularly as applied to images of participants 
who possess the physical characteristics of prepubes- 
cent children. 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. IV 1998). 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. 

There may still be cases at the margin in which there 
is some uncertainty concerning whether the statutory 
standard has been satisfied. But that is not at all 
unusual in a statute that seeks to combat the dis- 
semination of unlawful pornography, and it does not 
render the statute unconstitutional. See Ferber, 458 
U.S. at 751 (approving definition of child pornography 
that includes “simulated” conduct); Miller v. 
California, 413 U.S. 15, 24 (1973) (approving definition 
of obscenity that depends on whether material “appeals 
to the prurient interest” of the “average person” and is 
“patently offensive”). 

19 

3. The court of appeals also fundamentally erred in 
holding that the CPPA is unconstitutionally overbroad. 
That holding rests entirely on the court’s earlier con- 
clusions that the government’s sole compelling interest 
is in preventing harm to children involved in the 
production of child pornography, and that the pro- 
visions at issue here do not advance that interest. App., 
infra, 25a-27a. As we have explained, however, that 
part of the court’s analysis is simply incorrect. The 
government’s compelling interest extends to all 
children who may become the victims of abuse. And 
even if the government could only seek to prevent harm 
to children involved in the production of child porno- 
graphy, the provisions at issue here directly advance 
that interest. 

Nor is there any other basis for a finding that the 
CPPA is unconstitutionally overbroad. As the First 
Circuit has explained, because the Act targets only 
those images that are “indistinguishable” from 
photographic images of actual children, the Act does 
not reach “drawings, cartoons, sculptures, and paint- 
ings depicting youthful persons in sexually explicit 
poses.” Hilton, 167 F.3d at 72. The Act also shields 
through an affirmative defense the dissemination of 
photographic images of youthful-looking adults in 
sexual poses, so long as they are not marketed as child 
pornography. 18 U.S.C. 2252A(c) (Supp. IV 1998). 
And, finally, there is no occasion in this case to consider 
whether the CPPA raises First Amendment concerns 
as applied to a narrow subset of materials that have 
serious literary, artistic, political, or scientific value and 
that are marketed as such. Hilton, 167 F.3d at 74. Any 
such First Amendment concerns would not justify facial 
invalidation of the CPPA. “Whatever overbreadth may 
exist at the edges” can be “cured through a more 

20 

precise case-by-case evaluation of the facts in a given 
case.” Ibid.; see Ferber, 458 U.S. at 774; Broadrick v. 
Oklahoma, 413 U.S. 601, 615-616 (1973). 

CONCLUSION 

The petition for a writ of certiorari should be 
granted. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

DAVID W. OGDEN 

Assistant Attorney General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

IRVING L. GORNSTEIN 

Assistant to the Solicitor 

General 

BARBARA L. HERWIG 
JACOB M. LEWIS 

Attorneys 

NOVEMBER 2000 

APPENDIX A 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

No. 97-16536 

THE FREE SPEECH COALITION, ON ITS OWN 
BEHALF AND ON BEHALF OF ITS MEMBERS; 
BOLD TYPE, INC.; JIM GINGERICH; 
RON RAFFAELLI, PLAINTIFFS-APPELLANTS 

v. 

JANET RENO, ATTORNEY GENERAL, 
UNITED STATES DEPARTMENT OF JUSTICE, 
DEFENDANTS-APPELLEES 

Appeal from the United States 
District Court for the 
Northern District of California 

Filed: Dec. 17, 1999 

Before: Warren J. Ferguson and Sidney R. 
Thomas, Circuit Judges, and Donald W. Molloy,4 Dis- 
trict Judge. 

Opinion by Judge MOLLOY; Dissent by Judge 
FERGUSON. 

4 The Honorable Donald W. Molloy, United States District 
Judge for the District of Montana, sitting by designation. 

(1a) 

2a 

MOLLOY, District Judge: 

I. 

The question presented in this case is whether Con- 
gress may constitutionally proscribe as child pornogra- 
phy computer images that do not involve the use of real 
children in their production or dissemination. We hold 
that the First Amendment prohibits Congress from en- 
acting a statute that makes criminal the generation of 
images of fictitious children engaged in imaginary but 
explicit sexual conduct. 

II. 

In this case, the district court found that the Child 
Pornography Prevention Act of 1996 (“CPPA” or the 
“Act”) was content-neutral, was not unconstitutionally 
vague or overbroad, and did not constitute an improper 
prior restraint of speech. The district court also found 
that the Child Pornography Prevention Act’s affirma- 
tive defense did not impermissibly shift the burden of 
proof to a defendant by virtue of an unconstitutional 
presumption. 

While we agree that the plaintiffs have standing to 
bring this case and that the Act is not an improper prior 
restraint of speech, the balance of the district court’s 
analysis does not comport with what we believe is 
required by the Constitution. We find that the phrases 
“appears to be” a minor, and “convey[s] the impression” 
that the depiction portrays a minor, are vague and 
overbroad and thus do not meet the requirements of 
the First Amendment. Consequently we hold that while 
these two provisions of the Act do not pass constitu- 
tional muster, the balance of the Child Pornography 

3a 

Prevention Act is constitutional when the two phrases 
are stricken. Whether the statutory affirmative de- 
fense is constitutional is a question that we leave for 
resolution in a different case. 

A. 

The appellants consist of a group that refers to itself 
as “The Free Speech Coalition.” The Free Speech 
Coalition is a trade association of businesses involved in 
the production and distribution of “adult-oriented 
materials.” Bold Type, Inc. is a publisher of a book 
“dedicated to the education and expression of the ideals 
and philosophy associated with nudism;” Jim Gingerich 
is a New York artist whose paintings include large- 
scale nudes; and Ron Raffaelli is a professional photo- 
grapher whose works include nude and erotic photo- 
graphs. 

The Free Speech Coalition sought declaratory and 
injunctive relief by a pre-enforcement challenge to 
certain provisions of the Child Pornography Prevention 
Act of 1996. The complaint was filed in the Northern 
District of California. Both parties moved for summary 
judgment. The district court determined the CPPA 
was constitutional and granted the government’s mo- 
tion for summary judgment. See The Free Speech 
Coalition v. Reno, No. C 97-0281 VSC, 1997 WL 487758, 
at *7 (N.D. Cal. Aug. 12, 1997).5 At the same time it 
denied Free Speech’s cross motion for summary judg- 
ment. See id. After the district court’s adverse ruling, 
Free Speech appealed. 

5 The Opinion of the district court is not published in the 
Federal Supplement. 

4a 

In this appeal, Free Speech argues the district court 
was mistaken in its determination that the legislation is 
content neutral. They also argue that the district court 
was wrong to hold that the Act is not unconstitutionally 
vague. The argument is that where the statute fails to 
define “appears to be” and “conveys the impression,” it 
is so vague a person of ordinary intelligence cannot un- 
derstand what is prohibited. Free Speech also ques- 
tions the district court’s holding that the affirmative 
defense provided in the Act is constitutional. Finally, 
Free Speech appeals the lower court’s determination 
that the Act does not impose a prior restraint on pro- 
tected speech and that it does not create a permanent 
chill on protected expression. 

B. 

Child pornography is a social concern that has evaded 
repeated attempts to stamp it out. State legislatures 
and Congress have vigorously tried to investigate and 
enact laws to provide a basis to prosecute those persons 
involved in the creation, distribution, and possession of 
sexually explicit materials made by or through the 
exploitation of children. Our concern is with the most 
recent federal law enacted as part of the effort to rid 
society of the exploitation of children for sexual grati- 
fication, the Child Pornography Prevention Act of 1996. 

1. 

The original federal legislation specifically prohibit- 
ing the sexual exploitation of children has been 
amended several times since it was enacted as the 
Protection of Children Against Sexual Exploitation Act 
of 1977. See Pub. L. No. 95-225, 92 Stat. 7 (1977) 
(codified as amended at 18 U.S.C. §§ 2251-2253). The 

5a 

conduct prohibited by this law criminalized using a 
minor to engage in sexually explicit conduct for the 
purpose of producing any visual depiction of such 
conduct with the knowledge that it was or would be 
transported in interstate or foreign commerce. See id. 
Visual depiction was defined as including undeveloped 
film. See United States v. Smith, 795 F.2d 841, 846-47 
(9th Cir. 1986). The term also included reproductions of 
photographs or pictures. See United States v. Porter, 
709 F. Supp. 770, 774 (E.D. Mich. 1989), aff ’d, 895 F.2d 
1415 (6th Cir. 1990) (unpublished mem.). The language 
of 18 U.S.C. §§ 2251 and 2252 has survived overbreadth 
and vagueness challenges. See, e.g., United States v. 
Reedy, 845 F.2d 239, 241 (10th Cir. 1988). 

The Protection of Children Against Sexual Exploita- 
tion Act was enacted based upon congressional findings 
that child pornography and prostitution were highly 
organized, highly profitable, and exploited countless 
numbers of real children in its production. See New 
York v. Ferber, 458 U.S. 747, 749 n. 1, 102 S. Ct. 3348, 73 
L.Ed.2d 1113 (1982) (citing S. Rep. No. 95-438, at 5 
(1977)). While the Act criminalized the commercial pro- 
duction and distribution of visual depictions of real 
children under the age of sixteen engaging in sexually 
explicit conduct, it also extended the prohibitions of the 
Mann Act, 18 U.S.C. §§ 2421-2424, so as to criminalize 
the interstate transportation of children or juveniles for 
the purpose of prostitution. See Pub. L. No. 95- 225, § 3, 
92 Stat. 7 (1977). The Act criminalized a broad range of 
sexual acts. 

2. 

The Protection of Children Against Sexual Exploita- 
tion Act had its problems. According to the Final 

6a 

Report of the Attorney General’s Commission on Por- 
nography, only one person was convicted under the 
Act’s production prohibition. See Attorney General’s 
Comm’n On Pornography, Final Report 604 (1986) 
(hereinafter “AG Report”). As a consequence of the 
law’s deficiencies and the Supreme Court’s ruling in 
Ferber, Congress enacted the Child Protection Act of 
1984. See Pub. L. No. 98-292, 98 Stat. 204 (1984) (codi- 
fied as amended at 18 U.S.C. §§ 2251-2253). The Child 
Protection Act did away with the earlier requirement 
that the prohibited material be considered obscene 
under Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 
37 L.Ed.2d 419 (1973), before its production, dissemina- 
tion, or receipt was criminal. See id. § 4. The Child 
Protection Act also raised the age limit for protecting 
children involved in the production of sexually explicit 
material from sixteen years to eighteen years. See id. 
§ 5. 

When the Child Protection Act of 1984 was enacted 
Congress recognized that a great deal of pornographic 
trafficking involving children was not for profit. Thus, 
the 1984 law also did away with the requirement that 
the production or distribution of the material be for the 
purpose of sale. See id. §§ 4, 5. The 1984 law also 
picked up on a key phrase from Ferber, where the Su- 
preme Court discussed limits on the classification of 
child pornography, stating that the “nature of the harm 
to be combated requires that the state offense be 
limited to works that visually depict sexual conduct. 

. . .” Ferber, 458 U.S. at 764, 102 S. Ct. 3348. Congress 
changed the phrase “visual or print medium” in the 
former law to the phrase “visual depiction.” See Pub. L. 
No. 98-292, §§ 3, 4, 98 Stat. 204 (1984). Finally, Con- 
gress substituted the word “lascivious” for the word 

7a 

“lewd” in the definition of “sexual conduct” to make it 
clear that the depiction of children engaged in sexual 
activity was unlawful even if it did not meet the adult 
obscenity standard. See id. § 5. 

3. 

In 1986, Congress amended the law once again. The 
Child Sexual Abuse and Pornography Act of 1986, Pub- 
lic Law No. 99-628, § 2, 100 Stat. 3510 (1986) (codified as 
amended at 18 U.S.C. § 2251), banned the production 
and use of advertisements for child pornography. 
Another statutory change made wrongdoers subject to 
liability for personal injuries to children resulting from 
the production of child pornography. See Child Abuse 
Victims’ Rights Act of 1986, Pub. L. No. 99-500, 100 
Stat. 1783 (1986) (codified as amended at 18 U.S.C. 
§ 2255). By passing these Acts, Congress continued its 
quest to end “kiddie porn.” 

4. 

The continuing effort to marshal a means of stopping 
child pornography resulted in the passage of the Child 
Protection and Obscenity Enforcement Act of 1988. See 
Pub. L. No. 100-690, 102 Stat. 4181 (1988) (codified as 
amended at 18 U.S.C. §§ 2251A-2252). This law made it 
unlawful to use a computer to transport, distribute, or 
receive child pornography. See id. § 7511. It also added 
a new section to the criminal law that prohibited the 
buying, selling, or otherwise obtaining of temporary 
custody or control of children for the purpose of 
producing child pornography. See id. § 7512. The new 
law required record keeping and imposed disclosure 
requirements on the producers of certain sexually 
explicit matter. See id. § 7513. 

8a 

5. 

In 1990 the Supreme Court decided Osborne v. Ohio, 
495 U.S. 103, 110 S. Ct. 1691, 109 L.Ed.2d 98 (1990). 
Osborne upheld an Ohio law that prohibited possessing 
and viewing child pornography. See 495 U.S. at 111, 
110 S. Ct. 1691. Soon thereafter, the Child Protection 
Restoration and Penalties Enhancement Act of 1990 
was passed. See Pub. L. No. 101-647, § 301, 104 Stat. 
4789 (1990) (codified as amended at 18 U.S.C. 
§ 2252(a)(4)). This law criminalized the possession of 
three or more pieces of child pornography. See id. § 
323. Again in 1994, the federal law concerning child 
pornography was amended to punish the production or 
importation of sexually explicit depictions of a minor. 
See Pub. L. No. 103-322, § 16001, 108 Stat. 2036 (1994) 
(codified as amended at 18 U.S.C. § 2259). But, as with 
all the predecessor protective laws, this statute pro- 
tected real children from exploitation. See id. The law 
also mandated restitution for victims of child porno- 
graphy. See id. § 40113. 

Throughout the legislative history, Congress has 
defined the problem of child pornography in terms of 
real children. Up until 1996 the actual participation and 
abuse of children in the production or dissemination or 
pornography involving minors was the sine qua non of 
the regulating scheme. The legislation tracked the 
decisions of the Supreme Court as well as the swift 
development of technology and its nearly infinite pos- 
sibilities. The statutory odyssey was from adult por- 
nography secured or not by the First Amendment, to 
child pornography permitted or not, to pseudo child 
pornography protected or not, until in 1996 the law was 
amended to prohibit virtual child pornography. The 

9a 

1996 law, the law at issue here, changed course. The 
regulation direction shifted from defining child porno- 
graphy in terms of the harm inflicted upon real children 
to a determination that child pornography was evil in 
and of itself, whether it involved real children or not. 
This shift forms the basis of the constitutional challenge 
Free Speech makes here. 

6. 

The Child Pornography Prevention Act of 1996 
expanded the law to combat the use of computer 
technology to produce pornography containing images 
that look like children. The new law sought to stifle the 
use of technology for evil purposes. This of course was 
a marked change in the criminal regulatory scheme. 
Congress had always acted to prevent harm to real 
children. In the new law, Congress shifted the para- 
digm from the illegality of child pornography that 
involved the use of real children in its creation to forbid 
a “visual depiction” that “is, or appears to be, of a minor 
engaging in sexually explicit conduct.” See 18 U.S.C.A. 
§ 2256(8)(B) (West Supp. 1999). 

The premise behind the Child Pornography Pre- 
vention Act is the asserted impact of such images on 
the children who may view them. The law is also based 
on the notion that child pornography, real as well as 
virtual, increases the activities of child molesters and 
pedophiles. 

10a 

7. 

18 U.S.C. § 2256(8)6 defines child pornography as 
“any visual depiction, including any photograph, film, 
video, picture, or computer or computer-generated 
image or picture, whether made or produced by elec- 
tronic, mechanical, or other means, of sexually explicit 
conduct[.]”7 At issue in this appeal are the definitions 

6 18 U.S.C. § 2256(8) defines child pornography as: 

[A]ny visual depiction, including any photograph, film, video, 

picture, or computer or computer-generated image or pic- 
ture, whether made or produced by electronic, mechanical, 
or other means, of sexually explicit conduct, where- 
(A) the production of such visual depiction involves the 
use of a minor engaging in sexually explicit conduct; 

(B) such visual depiction is, or appears to be, of a minor 
engaging in sexually explicit conduct; 

(C) such visual depiction has been created, adapted, or 

modified to appear that an identifiable minor is engaging in 
sexually explicit conduct; or 

(D) such visual depiction is advertised, promoted, pre- 
sented, 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. . . . 

7 “Sexually explicit conduct” means: 

actual or simulated- 
(A) sexual intercourse, including genital-genital, oral- 
genital, anal-genital, or oral-anal, whether between 
persons of the same or opposite sex; 

(B) bestiality; 

(C) masturbation; 

(D) sadistic or masochistic abuse; or 

11a 

contained in subsections (B) and (D) of § 2256(8). 
Section 2256(8)(B) bans sexually explicit depictions that 
appear to be minors. Section 2256(8)(D) bans visual 
depictions that are “advertised, promoted, presented, 
described or distributed in such a manner that conveys 
the impression” that they contain sexually explicit 
depictions of minors. 

Because we hold the language at issue is uncon- 
stitutional, we do not consider the challenge to the 
affirmative defense in 18 U.S.C. § 2252A(c).8 

III. 

Standing is a question of law reviewed de novo. See 
Johns v. County of San Diego, 114 F.3d 874, 876 (9th 
Cir. 1997). A party has standing to bring a claim before 
a court if the party has suffered “‘actual or threatened 
injury as a result of the putatively illegal conduct of the 
defendant.’” See The Free Speech Coalition, 1997 WL 
487758, at *2 (citing Valley Forge Christian College v. 

(E) lascivious exhibition of the genitals or pubic area of any 
person. 

18 U.S.C.A. § 2256(2) (West Supp. 1999). 

8 The CPPA, 18 U.S.C. § 2252A(c), provides an affirmative 
defense for violations of the Act if: 

(1) the alleged child pornography was produced using an 
actual person or persons engaging in sexually explicit conduct; 

(2) each such person was an adult at the time the material was 
produced; and 

(3) the defendant did not advertise, promote, present, de- 
scribe, 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. 

12a 

Americans United for Separation of Church & State, 
Inc., 454 U.S. 464, 472, 102 S. Ct. 752, 70 L.Ed.2d 700 
(1982)). 

The record shows the individuals and businesses 
within The Free Speech Coalition withheld or stopped 
distributing products out of fear that they would be 
prosecuted for such behavior. The district court was 
correct in finding the facts presented here are sufficient 
to confer standing. The government does not question 
the district court’s standing decision. 

IV. 

A. 

A challenge to the constitutionality of a federal 
statute is reviewed de novo. See Crawford v. Lungren, 
96 F.3d 380, 384 (9th Cir. 1996). A district court’s 
decision to grant summary judgment is reviewed de 
novo. See Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 
1998). When the district court upholds a restriction on 
speech, we conduct an independent de novo examina- 
tion of the facts. See Tucker v. State of Cal. Dep’t of 
Educ., 97 F.3d 1204, 1209 n. 2 (9th Cir. 1996). 

1. 

The district court held that the contested provisions 
of the Child Pornography Prevention Act are content- 
neutral regulations. See The Free Speech Coalition, 
1997 WL 487758, at *7. The district judge reasoned 
that the law was passed to prevent the secondary 
effects of the child pornography industry, specifically 
the exploitation and degradation of children. See id. 
The court also found that the Act addressed the need to 

13a 

control child pornography because virtual pornography 
led to the encouragement of pedophilia and the molesta- 
tion of children. See id. This reasoning was based on a 
finding that the CPPA is intended “to counteract the 
effect that [real or virtual child pornography] has on its 
viewers, on children, and to society as a whole.” Id. 
The lower court expressly found the legislation was not 
intended to regulate or outlaw the ideas themselves. 
See id. 

We do not agree. In United States v. Hilton, 167 
F.3d 61, 68-69 (1st Cir. 1999), pet. for cert., filed, No. 98- 
9647 (U.S. 1999), the First Circuit found that the Act at 
issue was content-based because it expressly aims to 
curb a particular category of expression, child por- 
nography, by singling out the type of expression based 
on its content and then banning it. The Hilton court’s 
determination that blanket suppression of an entire 
type of speech is a content-discriminating act is a legal 
conclusion with which we agree. The child pornography 
law is at its essence founded upon content-based clas- 
sification of speech. 

The CPPA prohibits any sexually explicit depiction 
that “appears to be” of a minor or that is distributed or 
advertised in such a manner as to “convey the impres- 
sion” that the depiction portrays a minor. Thus, the 
CPPA distinguishes favored from disfavored speech on 
the basis of the content of that speech. See Crawford, 
96 F.3d at 384. 

Part of the rationale for the Act is the congressional 
determination that “a major part of the threat to 
children posed by child pornography is its effects on the 
viewers of such material[.]” S. Rep. No. 104-358, at 17 
(1996). The Congress surmised that “the effect is the 

14a 

same whether the child pornography consists of photo- 
graphic depictions of actual children or visual depictions 
produced wholly or in part by computer.” Id. One 
Senator referred to the notion that “[c]omputer imag- 
ing technology has given child pornographers a new 
way to create ‘synthetic’ child pornography which is 
virtually indistinguishable from ‘traditional’ child por- 
nography.” Id. at 26. This belief was then carried to its 
logical content-based conclusion that “ ‘synthetic’ child 
pornography which looks real to the naked eye will 
have the same effect upon viewers as ‘traditional’ child 
pornography.” Id. 

The government contends the district court was right 
in finding that the law is content-neutral. The govern- 
ment argues that because Congress enacted the CPPA 
to address the secondary effects of speech appearing to 
depict children’s sexual activity, this secondary-effects 
justification for the CPPA hinges upon the effect of 
pornography seemingly involving children upon its 
viewers. 

When a statute restricts speech by its content, it is 
presumptively unconstitutional. See Crawford, 96 F.3d 
at 385. As the First Circuit determined in Hilton: 

The CPPA fails both tests for substantive neutral- 
ity: it expressly aims to curb a particular category 
of expression (child pornography) by singling out 
that type of expression based on its content and 
banning it. Blanket suppression of an entire type of 
speech is by its very nature a content-discriminating 
act. Furthermore, Congress has not kept secret 
that one of its motivating reasons for enacting the 
CPPA was to counter the primary effect child 
pornography has on those who view it. 

15a 

167 F.3d at 68-69 (footnote omitted). The CPPA is not a 
time, place, or manner regulation. 

2. 

Under the circumstances, if the CPPA is to survive 
the constitutional inquiry the government must estab- 
lish a compelling interest that is served by the statute, 
and it must show that the CPPA is narrowly tailored to 
fulfill that interest. See Crawford, 96 F.3d at 385-86. 

The district court found that even if no children are 
involved in the production of such materials the dev- 
astating secondary effect that sexually explicit materi- 
als involving the images of children have on society, and 
on the well being of children, merits the regulation of 
such images. See The Free Speech Coalition, 1997 WL 
487758, at *4. This legislative finding supported the 
lower court’s finding of a compelling state interest. See 
id. We believe this legal determination is wrong. 

There are three compelling interests put forward 
when instituting efforts to curb child pornography 
using images of actual children. The first interest is 
that child pornography requires the participation of 
actual children in sexually explicit situations to create 
the images. The second interest stems from the belief 
that dissemination of such pornographic images may 
encourage more sexual abuse of children because it 
whets the appetite of pedophiles. The third interest is 
that such images are morally and aesthetically 
repugnant. 

The Supreme Court has required state statutes 
criminalizing child pornography to limit the offense to 
“works that visually depict explicit sexual conduct by 

16a 

children below a specified age.” Ferber, 458 U.S. at 764, 
102 S. Ct. 3348. The Ferber Court specifically focused 
on the harm to children. See 458 U.S. at 758, 102 S. Ct. 
3348. It also found that distribution of pornographic 
images is “intrinsically related” to the harm suffered by 
child victims because the images produced are a perma- 
nent record of the child’s participation, exacerbated by 
its dissemination. See id. at 759, 102 S. Ct. 3348. The 
Court reasoned that the distribution network for such 
images needs to be terminated if it is to be effectively 
controlled. See id. The Ferber Court acknowledged 
that “if it were necessary for literary or artistic value, a 
person over the statutory age who perhaps looked 
younger could be utilized.” Id. at 763, 102 S. Ct. 3348. 

The language of the statute questioned here can 
criminalize the use of fictional images that involve no 
human being, whether that fictional person is over the 
statutory age and looks younger, or indeed, a fictional 
person under the prohibited age. Images that are, or 
can be, entirely the product of the mind are criminal- 
ized. The CPPA’s definition of child pornography ex- 
tends to drawings or images that “appear” to be minors 
or visual depictions that “convey” the impression that a 
minor is engaging in sexually explicit conduct, whether 
an actual minor is involved or not. The constitutionality 
of this definition is not supported by existing case law. 

The rationale articulated in Ferber and the consti- 
tutional permissibility of regulating the category of 
child pornography as a separate class is not justified by 
consideration of the effects such images have on others, 
even if those effects exist. Instead the focus of analysis 
is on the harm to the children actually used in the 

17a 

production of the materials.9 Nothing in Ferber can be 
said to justify the regulation of such materials other 
than the protection of the actual children used in the 
production of child pornography. The language of the 
statute criminalizes even those materials that do not 
involve a recognizable minor. This shift is a significant 
departure from Ferber. While the government is given 
greater leeway in regulating child pornography, materi- 
als or depictions of sexual conduct “which do not 
involve live performance or photographic or other 
visual reproduction of live performances, retain[s] First 
Amendment protection.” Ferber, 458 U.S. at 765, 102 S. 
Ct. 3348. 

Ferber considered the possibility of simulations of 
sexually explicit acts involving non-recognizable minors 
and implicitly found them to be constitutionally pro- 
tected. See id. at 763, 102 S. Ct. 3348. The Court also 
implicitly rejected the regulation of pornography that 
does not involve minors. See id. Thus, the case law 
demonstrates that Congress has no compelling interest 
in regulating sexually explicit materials that do not 
contain visual images of actual children. Furthermore, 
to the extent Congress’ justification for the CPPA 
relies upon such pornography’s effect on third parties— 
children victimized by pedophiles who consume sexu- 
ally explicit depictions that appear to involve minors— 

9 The dissent rhetorically asks “Why should virtual child 
pornography be treated differently than real child pornography?” 
and then suggests there is no “value” in any pornography involving 
children, whether it involves real persons or imaginary computer 
images. This is the critical fault in the secondary effects analysis 
because it shifts the argument focus from whether the questioned 
speech or images are constitutionally protected to a focus on how 
the speech or image affects those who hear it or see it. 

18a 

the Seventh Circuit has articulated a compelling reason 
for preventing such third party injury from supersed- 
ing First Amendment rights. 

In American Booksellers Ass’n, Inc. v. Hudnut, 771 
F.2d 323, 334 (7th Cir. 1985), aff ’d, 475 U.S. 1001, 106 S. 
Ct. 1172, 89 L.Ed.2d 291 (1986), the Seventh Circuit in- 
validated a city ordinance prohibiting pornography that 
portrayed women submissively or in a degrading man- 
ner. In Hudnut, an argument about the consequences 
of pornography was put forth to justify the Indianapolis 
ordinance. See 771 F.2d at 328. The defendants 
maintained that pornography influences attitudes, and 
that the ordinance was a way to alter the socialization 
of men and women rather than to vindicate community 
standards of offensiveness. See id. at 328-29. It was 
argued that the ordinance would play an important role 
“in reducing the tendency of men to view women as 
sexual objects, a tendency that leads to both unaccept- 
able attitudes and discrimination in the workplace and 
violence away from it.” Id. at 325. The Court accepted 
the premise that “depictions of subordination tend to 
perpetuate subordination” which in turn leads to 
“affront and lower pay at work, insult and injury at 
home, and battery and rape on the streets.” Id. at 329. 
Even so, the Hudnut court reasoned that pornogra- 
phy’s role, if any, in preserving systems of sexual 
oppression “simply demonstrate[d] the power of por- 
nography as speech. . . . Pornography affects how 

people see the world, their fellows, and social relations.” 
Id. 

As the Seventh Circuit noted, however, the unhappy 
effects of pornography depend on mental intermedia- 
tion. See id. This is particularly so when the images 

19a 

are not of real human beings, but are representations of 
a loathsome mind reduced to virtual reality by the 
technology of graphic computer art. Further, 

Sexual responses often are unthinking responses, 
and the association of sexual arousal with the sub- 
ordination of women therefore may have a sub- 
stantial effect. But almost all cultural stimuli pro- 
voke unconscious responses. . . . If the fact that 

speech plays a role in a process of conditioning were 
enough to permit governmental regulation, that 
would be the end of freedom of speech. 

Id. at 330. 

By the same token, any victimization of children that 
may arise from pedophiles’ sexual responses to por- 
nography apparently depicting children engaging in 
explicit sexual activity is not a sufficiently compelling 
justification for CPPA’s speech restrictions. This is so 
because to hold otherwise enables the criminalization of 
foul figments of creative technology that do not involve 
any human victim in their creation or in their presenta- 
tion. Cf. Jacobson v. United States, 503 U.S. 540, 548- 
49, 112 S. Ct. 1535, 118 L.Ed.2d 174 (1992) (invalidating 
a federal child pornography conviction and holding that 
even the compelling interest in protecting children from 
sexual exploitation does not justify modifications in 
otherwise applicable rules of criminal procedure); 
United States v. X-Citement Video, Inc., 513 U.S. 64, 
78, 115 S. Ct. 464, 130 L.Ed.2d 372 (1994) (interpreting 
18 U.S.C. § 2252 to require the prosecution to prove the 
defendant knew the material was produced with the 
use of a minor, in part because to find otherwise would 
be constitutionally problematic). 

20a 

The critical ingredient of our analysis is the relation- 
ship between the dissemination of fabricated images of 
child pornography and additional acts of sexual abuse. 
Factual studies that establish the link between com- 
puter-generated child pornography and the subsequent 
sexual abuse of children apparently do not yet exist. 
See Ronald W. Adelman, The Constitutionality of Con- 
gressional Efforts to Ban Computer-Generated Child 
Pornography: A First Amendment Assessment of S. 
1237, 14 J. Marshall J. Computer & Info. L. 483, 488, 490 
(1996). The legislative justification for the proposition 
was based upon the Final Report of the Attorney 
General’s Commission on Pornography, a report that 
predates the existing technology. See id. at 490. The 
Final Report emphasized the victimization of real 
children by adult distribution of the pornographic 
material. The report shows that the use of sexually 
explicit photos or films of actual children to lure other 
children played a small part in the overall problem 
involving harm to children. See id. (citing AG Report at 
649-50). Thus, while such images are unquestionably 
morally repugnant, they do not involve real children 
nor is there a demonstrated basis to link computer- 
generated images with harm to real children. Absent 
this nexus, the law does not withstand constitutional 
scrutiny. 

10 

10 The dissent’s argument about the secondary effects justifi- 
cation for permitting the statutory regulation here is not sound 
because it makes too much of dicta set forth in Osborne v. Ohio, 495 
U.S. 103, 110 S. Ct. 1691, 109 L.Ed.2d 98 (1990). In the first place 
Osborne involved real children. Protecting harm to real children is 
the point that constitutionally limits the power of Congress to ban 
some forms of expression. 

21a 

The premise of the secondary effects argument assumes that 
children will be enticed by pedophiles to illicit sexual behavior, and 
consequent injury, if they look at pictures of other kids engaged in 
sexually explicit conduct. Even if the pictures don’t involve real 
kids, the “realism” of computer images that “appear to be” or 
“create the impression” of real children can be used by pedophiles 
to entice a vulnerable child into illegal sexual acts. Thus, according 
to the dissent, there is a justification to protect kids from the 
harmful secondary effects of images that don’t involve real people. 
The vulnerability argument makes no constitutional sense in light 
of Ferber’s acknowledgment that adults who look like minors can 
be used in place of minors in sexually explicit “art” or film depic- 
tions. In other words, if the dissent’s argument is sound, it would 
work to bar expression of constitutionally protected speech under 
Ferber. Nothing would keep the determined pedophile from using 
Ferber protected images to entice the vulnerable child into harmful 
sexual conduct. 

A similar fault lies in the dissent’s reasoning regarding “draw- 
ings, cartoons, sculptures, and paintings depicting youthful persons 
in sexually explicit poses [that] plainly lie beyond the Act,” citing 
Hilton, 167 F.3d at 72. Children are enamored by cartoons and 
drawings. They are regularly used as a means of teaching and 
entertaining. Much debate exists about the effects that cartoons 
and video or computer games have on violent behaviors or other 
antisocial behaviors involving children. It is unsound to reason 
that cartoons cannot suggest pornographic behavior or that 
cartoons could not be used to entice a vulnerable child into illicit 
sexual behavior. Cf. Fritz the Cat (1972) (X-rated cartoon movie, 
loosely based on Underground Comics’ character by Robert 
Crumb, depicting cat’s adventures in group sex, college radicalism, 
and other hazards of life in the 1960’s). 

Many innocent things can entice children into immoral or offen- 
sive behavior, but that reality does not create a constitutional 
power in the Congress to regulate otherwise innocent behavior. 
By the dissent’s reasoning a pedophile could use cartoons depicting 
explicit sexual conduct involving minors to entice a child into 
engaging in sexually explicit behavior but this would “plainly lie 
beyond the Act.” Cartoons or other images cannot be constitu- 

22a 

By criminalizing all visual depictions that “appear to 
be” or “convey the impression” of child pornography, 
even where no child is ever used or harmed in its pro- 
duction, Congress has outlawed the type of depictions 
explicitly protected by the Supreme Court’s interpre- 
tation of the First Amendment. Because the 1996 Act 
attempts to criminalize disavowed impulses of the mind, 
manifested in illicit creative acts, we determine that 
censorship through the enactment of criminal laws 
intended to control an evil idea cannot satisfy the 
constitutional requirements of the First Amendment. 

Our determination is not to suggest that anyone 
condones the implicit or explicit harmful secondary 
effects of child pornography. Rather it is a deter- 
mination to measure the statute by First Amendment 
standards articulated by the Supreme Court. To accept 
the secondary effects argument as the gauge against 
which the statute must be measured requires a 
remarkable shift in the First Amendment paradigm. 
Such a transformation, how speech impacts the listener 
or viewer, would turn First Amendment jurisprudence 
on its head. 

In short, we find the articulated compelling state 
interest cannot justify the criminal proscription when 
no actual children are involved in the illicit images 

tionally distinguished from other fictional images based upon the 
quality of the realism. 

The dissent wrongly suggests that our holding accords “virtual 
child pornography the full protection of the First Amendment.” 
Because the statute is severable, our holding demonstrates that if 
morphed computer images are of an identifiable child, the statute 
is enforceable because there is then the potential for harm to a real 
child. 

23a 

either by production or depiction. Because we find that 
Congress has not provided a compelling interest, we do 
not address the “narrow tailoring” requirement. 

3. 

The district court found the CPPA is not uncon- 
stitutionally vague as it gives sufficient guidance to a 
person of reasonable intelligence as to what it prohibits. 
See The Free Speech Coalition, 1997 WL 487758, at *6. 
The Hilton court scrutinized the statute with a “skepti- 
cal eye” because the new law impinges on freedom of 
expression. See 167 F.3d at 75. In doing so, it con- 
cluded, as the district court did here, that the CPPA 
was not unconstitutionally vague. See id. at 76-77. In 
making its determination the First Circuit applied an 
objective standard to determine the meaning of the 
phrase, “appears to be a minor.” See id. at 75. 

A statute is void for vagueness if it fails to “define 
the criminal offense with sufficient definiteness that 
ordinary people can understand what conduct is prohib- 
ited and in a manner that does not encourage arbitrary 
or discriminatory enforcement.” Kolender v. Lawson, 
461 U.S. 352, 357, 103 S. Ct. 1855, 75 L.Ed.2d 903 (1983). 
The requirement involves an understanding by a 
putative actor about what conduct is prohibited. It is 
impermissible to define a criminal offense so vaguely 
that an ordinary person is left guessing about what is 
prohibited and what is not. Notice that does not 
provide a meaningful understanding of what conduct is 
prohibited is vague and unenforceable. Such is the case 
with the statutory language prohibiting material that 
“appears to be” or that “conveys the impression.” 

24a 

The CPPA’s criminalizing of material that “appears 
to be a minor” and “convey[s] the impression” that the 
material is a minor engaged in explicit sexual activity, 
is void for vagueness. It does not “give the person of 
ordinary intelligence a reasonable opportunity to know 
what is prohibited,” and it fails to provide explicit 
standards for those who must apply it, “with the atten- 
dant dangers of arbitrary and discriminatory applica- 
tion.” Grayned v. City of Rockford, 408 U.S. 104, 108- 
09, 92 S. Ct. 2294, 33 L.Ed.2d 222 (1972). 

The two phrases in question are highly subjective. 
There is no explicit standard as to what the phrases 
mean. The phrases provide no measure to guide an 
ordinarily intelligent person about prohibited conduct 
and any such person could not be reasonably certain 
about whose perspective defines the appearance of a 
minor, or whose impression that a minor is involved 
leads to criminal prosecution. 

In the same light, the absence of definitions for these 
key phrases in the CPPA allows law enforcement 
officials to exercise their discretion, subjectively, about 
what “appears to be” or what “conveys the impression” 
of prohibited material. Thus, the vagueness of the 
statute’s key phrases regarding computer images 
permits enforcement in an arbitrary and discriminatory 
fashion. Cf. City of Chicago v. Morales, ___ U.S. ___, 
___, 119 S. Ct. 1849, 1862, 144 L.Ed.2d 67 (1999) (finding 
anti-loitering ordinance unconstitutionally vague, in 
part because “the ‘no apparent purpose’ standard [used 
in defining ‘loitering’] is inherently subjective” and 
“depends on whether some purpose is ‘apparent’ to the 
officer on the scene.”). 

25a 

4. 

The district court held that the CPPA is not over- 
broad because it prohibits only those works necessary 
to prevent the secondary pernicious effects of child 
pornography from reaching minors. See The Free 
Speech Coalition, 1997 WL 487758, at *6. In addition, 
the First Circuit reasoned that “a few possibly imper- 
missible applications of the Act does not warrant its 
condemnation[,]” and found that “[w]hatever over- 
breadth may exist at the edges are more appropriately 
cured through a more precise case-by-case evaluation of 
the facts in a given case.” Hilton, 167 F.3d at 74. We 
do not agree. 

Although overbreadth must “be ‘substantial’ before 
the statute involved will be invalidated on its face[,]” 
Ferber, 458 U.S. at 769, 102 S. Ct. 3348, such over- 
breadth is present here. On its face, the CPPA prohib- 
its material that has been accorded First Amendment 
protection. That is, non-obscene sexual expression that 
does not involve actual children is protected expression 
under the First Amendment. See id. at 764-65, 102 S. 
Ct. 3348. This rule abides even when the subject 
matter is distasteful. 

Congress may serve its legitimate purpose in pro- 
tecting children from abuse by prohibiting pornography 
actually involving minors. The Senate considered the 
constitutional impediment discussed here but disagreed 
with the assertion that it could not prohibit visual 
depictions that “appear to be” of minors engaging in 
sexually explicit conduct when the depictions were 
produced without using actual children. See S. Rep. 
No. 104-358, at 21 (1996). The Senate reasoned that 

26a 

advances in technology distinguished the Ferber 
Court’s holding because in 1982 when Ferber was 
decided “the technology to produce visual depictions of 
child sexual activity indistinguishable from unre- 
touched photographs of actual children engaging in ‘live 
performances’ did not exist.” Id. 

The danger with this analysis is that it suggests that 
the more realistic an imaginary creation is, the less 
protection it is entitled to under the First Amendment. 
This is not because of any harm caused in its creation, 
rather it is because of the consequences of its purported 
reality. Yet, the Supreme Court has restricted the 
regulation of pornographic material involving minors 
because of the harm caused by its creation, not 
necessarily because of the consequences of its creation. 
The government’s interest in prohibiting computer- 
generated child pornographic depictions is not the same 
as its interest in prohibiting child pornography pro- 
duced by using actual children. In the latter instance 
there may be direct and indirect harm to a child. In the 
former instance there is no harm, and there can be 
none, to an actual child, if no real human is used in the 
production of the images. What is left then is an 
inconsistent effort to regulate the evil consequences of 
abusing children to make such images, even though no 
children are used in its production. 

As explained, the CPPA is insufficiently related to 
the interest in prohibiting pornography actually in- 
volving minors to justify its infringement of protected 
speech. See Village of Schaumburg v. Citizens for a 
Better Env’t, 444 U.S. 620, 637-39, 100 S. Ct. 826, 63 
L.Ed.2d 73 (1980) (village could serve its legitimate 
interest in preventing fraud by less intrusive measures 

27a 

than direct prohibition of solicitation; concluding that 
village ordinance was overbroad, as it had insufficient 
relationship with protection of public safety or residen- 
tial privacy to justify interference with protected 
speech). The CPPA’s inclusion of constitutionally 
protected activity as well as legitimately prohibited 
activity makes it overbroad. See Broadrick v. Okla- 
homa, 413 U.S. 601, 612, 93 S. Ct. 2908, 37 L.Ed.2d 830 
(1973) (describing Supreme Court’s findings of over- 
breadth in cases in which statutes burden protected 
speech and rights of association). 

5. 

The district court found that because the CPPA does 
not require advance approval for production or dis- 
tribution of adult pornography that does not use minors 
and does not effect a complete ban on constitutionally 
protected material, it does not constitute an improper 
prior restraint on speech. See The Free Speech Coali- 
tion, 1997 WL 487758, at *7. We agree. 

Prior restraint describes “administrative and judicial 
orders forbidding certain communications” before the 
communication occurs. See Alexander v. United States, 
509 U.S. 544, 550, 113 S. Ct. 2766, 125 L.Ed.2d 441 
(1993). The CPPA only penalizes speech after it occurs. 
As such it is not a prior restraint of speech. See id. at 
553-54, 113 S. Ct. 2766. The possibility of self-censor- 
ship and the contention that the CPPA has a chilling 
effect do not amount to a prior restraint. See Fort 
Wayne Books, Inc. v. Indiana, 489 U.S. 46, 60, 109 S. 
Ct. 916, 103 L.Ed.2d 34 (1989). 

28a 

V. 

We hold that the language of “appears to be a minor” 
set forth in 18 U.S.C. § 2256(8)(B) and the language 
“convey[s] the impression” set forth in 18 U.S.C. 
§ 2256(8)(D) are unconstitutionally vague and over- 
broad. The statute is severable. See Pub. L. No. 104- 
208, 110 Stat. 3009, § 101 (1996). The law is enforceable, 
except for these amendments to 18 U.S.C. § 2256, § 4 of 
Senate Bill 1237, through the free standing savings 
provisions of § 9, codified at 18 U.S.C. § 2256(9). 

11 

The judgment of the district court is AFFIRMED on 
the questions of standing and prior restraint. The 
judgment of the district court is REVERSED on the 
questions of the constitutionality of the statutory lan- 
guage “appears to be a minor” and “convey[s] the im- 
pression.” 

The pending motion by Stop Prisoner Rape, to file an 
amicus brief in this case, is denied. 

11 The Senate specifically dealt with the notion that the inclusion 
of entirely computer-generated images might render the law 
unconstitutional. Section 9 of Senate Bill 1237, codified at 18 
U.S.C. § 2256(9), was added as a safeguard at the behest of Senator 
Biden. See S. Rep. No. 104-358, at 28 (1996). Section 9 prohibits 
the use of “identifiable minors in visual depictions of sexually 
explicit conduct.” 18 U.S.C.A. § 2256(9) (West Supp. 1999). Section 
9 was added because of the concern that the definition of “child 
pornography” and its application through § 4 of the Act, the 
language at issue here, “may be at risk of judicial invalidation 
insofar as it reaches images that do not depict actual minors.” 
S. 

Rep. No. 104-358, at 11 (1996). 

29a 

The case is remanded to the district court with 
instructions to enter judgment on behalf of the plain- 
tiffs consistent with this opinion. 

AFFIRMED IN PART, REVERSED AND 
REMANDED IN PART. 

FERGUSON, Circuit Judge, Dissenting: 

The majority holds that Congress cannot regulate 
virtual child pornography 

12 because it does not require 
the use of actual children in its production. Majority 
Op. at 1095. Without the use of actual children, the 
majority believes that Congress is simply attempting to 

12 Computer-generated child pornography comes in many 
different forms. For purposes of clarity, however, I will divide it 
into two categories. The first is “virtual” child pornography and 
the second is “computer-altered” child pornography. 

The key to virtual child pornography is that it does not depict an 
actual or “identifiable minor.” Through a technique called “morph- 
ing,” a picture of a real person is transformed into a picture of a 
child engaging in sexually explicit activity. See S. Rep. No. 104- 
358, at 15-16. Although the computer-generated image looks real, 
the children depicted in the image do not actually exist. See id. 
The picture is therefore 100% “virtual.” 

Computer-altered child pornography, by contrast, contains the 
image of an actual or “identifiable minor.” This type of child por- 
nography can be created by scanning the photo of a child into the 
computer and then with the aid of the “cut and paste” feature, 
attaching the child’s face onto the body of another person who is 
engaged in sexually explicit activity. Id. Although the image has 
been altered, the child is still “recognizable” through the child’s 
“face, likeness, or other distinguishing characteristic.” 18 U.S.C.A. 
§ 2256(9) (West Supp. 1999). Computer-altered child pornography 
is banned under 18 U.S.C.A. § 2256(8)(C) (West Supp. 1999). 
Appellants did not challenge this provision, and therefore, it will 
not be discussed here. 

30a 

regulate “evil idea[s].” Id. I disagree. Congress has 
provided compelling evidence that virtual child por- 
nography causes real harm to real children. As a result, 
virtual child pornography should join the ranks of real 
child pornography as a class of speech outside the 
protection of the First Amendment. In addition, I do 
not believe that the statutory terms “appears to be” or 
“conveys the impression” are substantially overbroad 
or void for vagueness. Accordingly, I would find the 
Child Pornography Prevention Act of 1996 (“CPPA”) 
constitutional. 

I. 

For more than two decades, Congress has been 
trying to eliminate the scourge of child pornography. 
See Majority Op. at 1087-89. Each time Congress 
passes a law, child pornographers find a way around the 
law’s prohibitions. See S. Rep. No. 104-358, at 26 (state- 
ment of Sen. Grassley). This cycle recently repeated 
itself and prompted Congress to enact the CPPA. 

Prior to the CPPA, federal law imposed penalties on 
individuals who produced, distributed, or possessed 
visual depictions of actual minors engaging in sexually 
explicit conduct. See 18 U.S.C.A. § 2252 (West Supp. 
1999). Recent advances in computer-imaging technol- 
ogy, however, have made this law ineffective for two 
reasons. First, purveyors of child pornography can now 
produce visual depictions that appear to be actual 
children engaged in sexual conduct “without using chil- 
dren” at all, “thereby placing such depictions outside 
the scope of federal law.” 141 Cong. Rec. S13542 (daily 
ed. Sept. 13, 1995) (remarks of Sen. Hatch). Second, 
even where actual children are used, computers can 
“alter sexually explicit photographs, films, and videos in 

31a 

such a way as to make it virtually impossible for 
prosecutors to identify individuals, or to prove that the 
offending material was produced using [actual] 
children.” Id. 

In an effort to close these loopholes, Congress en- 
acted the CPPA which, inter alia, bans visual depic- 
tions that “appear[ ] to be of a minor engaging in sexu- 
ally explicit conduct” or that are “advertised, promoted, 
presented, described, or distributed in such a manner 
that conveys the impression that the material is or 
contains a visual depiction of a minor engaging in 
sexually explicit conduct.” 18 U.S.C.A. §§ 2256(8)(B), 
(D) (West Supp. 1999). Along with the CPPA, Con- 
gress included thirteen detailed legislative findings that 
explained why virtual child pornography must be pro- 
hibited. See 18 U.S.C.A. § 2251 (West Supp.1999), His- 
torical and Statutory Notes, Congressional Findings 
(hereinafter “Congressional Findings”). 

13 

Despite these detailed legislative findings, the major- 
ity rules that Congress failed to articulate a “compelling 
state interest” to justify criminalizing virtual child 
pornography. Majority Op. at 1095. The majority 
argues that Congress cannot constitutionally regulate 
virtual child pornography because it does not depict 
“actual children.” Id. Once “actual children” are 
eliminated from the equation, the majority believes that 
Congress is impermissibly trying to regulate “evil 
idea[s].” Id. I disagree for the following reasons. 

13 The congressional findings were based in large part on 
testimony presented to the Senate Judiciary Committee. See 
Child Pornography Prevention Act of 1995: Hearing before the 
Senate Judiciary Committee, 104th Cong., 2d Sess. (1996) (herein- 
after “Senate Hearing”). 

32a 

First. The majority improperly suggests that pre- 
venting harm to depicted children is the only legitimate 
justification for banning child pornography. Although 
this was the Supreme Court’s focus in New York v. 
Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L.Ed.2d 1113 
(1982), the Court has subsequently indicated a willing- 
ness to consider additional factors. See Osborne v. Ohio, 
495 U.S. 103, 110-11, 110 S. Ct. 1691, 109 L.Ed.2d 98 
(1990). In Osborne, the Supreme Court addressed the 
issue of whether Ohio could ban the possession of child 
pornography. Id. at 108, 110 S. Ct. 1691. In finding it 
could, the Court relied not only on the harm caused to 
the children who are used in its production (i.e., 
Ferber), but also on the harm that children suffer when 
child pornography is used to seduce or coerce them into 
sexual activity. Id. at 111, 110 S. Ct. 1691. Thus, in 
Osborne, the Court indicated that protecting children 
who are not actually pictured in the pornographic 
image is a legitimate and compelling state interest. See 
Id. See also United States v. Hilton, 167 F.3d 61, 70 
(1st Cir.) (recognizing the Supreme Court’s “subtle, yet 
crucial, extension” of valid state interests to include 
protecting children not actually depicted), cert. denied 
___ U.S. ___, 120 S. Ct. 115, 145 L.Ed.2d 98 (1999). 

Second. The majority ignores the fact that the 
Supreme Court has already endorsed many of the 
justifications Congress relied on when it passed the 
CPPA. As discussed above, the Court in Osborne rec- 
ognized that states have a legitimate interest in 
preventing pedophiles from “us[ing] child pornography 
to seduce other children into sexual activity.” Osborne, 
495 U.S. at 111, 110 S. Ct. 1691. Relying on this justifi- 
cation, Congress enacted the CPPA after finding that 
“child pornography is often used as part of a method of 

33a 

seducing other children into sexual activity; a child who 
is reluctant to engage in sexual activity with an adult, 
or to pose for sexually explicit photographs, can some- 
times be convinced by viewing depictions of other 
children ‘having fun’ participating in such activity.” 
Congressional Findings, at 3. When child pornography 
is “used as a means of seducing or breaking down a 
child’s inhibitions,” the images are equally as effective 
regardless of whether they are real photographs or 
computer-generated pictures that are “virtually indis- 
tinguishable.” Congressional Findings, at 8. 

14 

The Supreme Court has also recognized that states 
have a legitimate interest in destroying the child por- 
nography market. Osborne, 495 U.S. at 110. Similarly, 
in enacting the CPPA, Congress declared that the 
statute would encourage people to destroy all forms of 
child pornography, thereby reducing the market for the 
material. Congressional Findings at 12. At the hear- 
ing before the Senate Judiciary Committee, witnesses 
testified that persons who trade and sell images that 
are indistinguishable from those of actual children 
engaged in sexual activity “keep the market for child 
pornography thriving.” Senate Hearing, at 91 (testi- 
mony of Bruce Taylor). 

15 This is because pictures that 
look like children engaging in sexual activities can be 

14 See also Senate Hearing, at 70 (statement of Bruce Taylor, 
Chief Counsel for the National Law Center for Children and 
Families) (stating that “real and apparent [child pornography] . . . 
are equally dangerous because both have . . . the same seductive 
effect on a child victim”). 

15 See also Senate Hearing, at 35 (testimony of Dr. Victor Cline, 
Emeritus Professor in Psychology at the University of Utah); Id. 
at 20, 23, 30 (testimony of Jeffrey J. Dupilka, Deputy Chief Postal 
Inspector for Criminal Investigations). 

34a 

exchanged for pictures that are of actual children 
engaging in such activities. By limiting the production 
and distribution of images that appear to be of children 
having sex, the CPPA helps rid the market of all child 
pornography. 

16 

Third. Even though Congress presented some new 
justifications that the Supreme Court has not specifi- 
cally endorsed, the majority still had an obligation to 
consider them, as long as they advance the general goal 
of protecting children. In both Ferber and Osborne, the 
Court stated that “[i]t is evident beyond the need for 
elaboration that a State’s interest in ‘safeguarding the 
physical and psychological well-being of a minor’ is 
‘compelling.’ ” Osborne, 495 U.S. at 109, 110 S. Ct. 1691, 
quoting Ferber, 458 U.S. at 756-57, 102 S. Ct. 3348. “A 
democratic society rests, for its continuance, upon the 
healthy, well-rounded growth of young people into full 
maturity as citizens.” Ferber, 458 U.S. at 757, 102 S. Ct. 
3348. Thus, the Court will generally “sustain[ ] legisla- 
tion aimed at protecting the physical and emotional 
well-being of children even when the laws . . . 
operate[ ] in sensitive areas.” Id. 

The lesson from Ferber and Osborne is that legis- 
lators should be given “greater leeway” when acting to 
protect the well-being of children. See Id. at 756, 102 S. 
Ct. 3348. The majority, however, ignores this principle 
and fails to consider any of the new justifications 

16 See Senate Hearing, at 122 (testimony of Professor Frederick 
Schauer, Frank Stanton Professor of the First Amendment, 
Kennedy School of Government, Harvard University) (stating that 
it is “undoubtedly true” that “somewhere in this chain of com- 
puter-generated production there are going to be real children 

. . . involved”). 

35a 

supporting the CPPA. For example, the majority fails 
to address Congress’ concern that computer-imaging 
technology is making it increasingly difficult in criminal 
cases for the government “to meet its burden of 
proving that a pornographic image is of a real child.” S. 
Rep. No. 104-358, at 20. 

At a hearing before the Senate 
Judiciary Committee, Deputy Assistant Attorney Gen- 
eral Kevin Di Gregory told the committee that in one 
federal child pornography case, the defendant relied on 
advances in computer technology to argue that the 
government had failed to meet its “burden of proving 
that each item of the alleged child pornography did, in 
fact, depict an actual minor rather than an adult made 
to look like one.” Id. at 17, citing United States v. 
Kimbrough, 69 F.3d 723, 733 (5th Cir. 1995), cert. 
denied, 517 U.S. 1157, 116 S. Ct. 1547, 134 L.Ed.2d 650 
(1996). Although jurors in that case rejected this argu- 
ment, Congress recognized that as computer imaging 
software progressed, similar arguments might under- 
mine “the enforcement of existing laws” by raising a 
“built-in reasonable doubt argument in every child 
exploitation/pornography prosecution.” S. Rep. No. 
104-358, at 16-17. Congress believed that the CPPA 
was necessary to close this loophole, and therefore, the 
majority should have factored this concern into its 
evaluation of the case. 

Fourth. The majority ignores the fact that child por- 
nography, real or virtual, has little or no social value. 
See Ferber, 458 U.S. at 762, 102 S. Ct. 3348 (stating that 
the value of child pornography is “exceedingly modest, 
if not de minimis”). It is well established that “[t]he 
protection given to speech and press was fashioned to 
assure unfettered interchange of ideas for bringing 
about the political and social changes desired by 

36a 

people.” Roth v. United States, 354 U.S. 476, 484, 77 S. 
Ct. 1304, 1 L.Ed.2d 1498 (1957). “All ideas having even 
the slightest redeeming social importance—unorthodox 
ideas, controversial ideas, even ideas hateful to the 
prevailing climate of opinion—have . . . full protection 

. . .” Id. The First Amendment, however, does not 
protect certain limited categories of speech that are 
“utterly without redeeming social importance.” Id. See 
also R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83, 112 
S. Ct. 2538, 120 L.Ed.2d 305 (1992) (stating that “[f]rom 
1791 to present . . . our society, like other free but 
civilized societies, has permitted restrictions upon the 
content of speech in a few limited areas”). These 
categories include obscenity, Roth, 354 U.S. at 483, 77 
S. Ct. 1304, libel, Beauharnais v. Illinois, 343 U.S. 250, 
266, 72 S. Ct. 725, 96 L.Ed. 919 (1952), and “fighting 
words.” Chaplinsky v. New Hampshire, 315 U.S. 568, 
571-73, 62 S. Ct. 766, 86 L.Ed. 1031 (1942). Child por- 
nography is also one of these categories of speech. 
Ferber, 458 U.S. at 763-64, 102 S. Ct. 3348. 

Why should virtual child pornography be treated 
differently than real child pornography? Is it more 
valued speech? 

I do not think so. Both real and virtual 
child pornography contain visual depictions of children 
engaging in sexually explicit activity. The only differ- 
ence is that real child pornography uses actual children 
in its production, whereas virtual child pornography 
does not. While this distinction is noteworthy, it does 
not somehow transform virtual child pornography into 
meaningful speech. Virtual child pornography, like its 
counterpart real child pornography, is of “slight social 
value” and constitutes “no essential part of the exposi- 
tion of ideas.” See Chaplinsky, 315 U.S. at 572, 62 S. 
Ct. 766. Therefore, the majority is wrong to accord 

37a 

virtual child pornography the full protection of the 
First Amendment. 

Fifth. The majority improperly analyzes the CPPA 
under a strict scrutiny approach. Majority Op. at 1091. 
In so doing, the majority misreads the Supreme Court’s 
previous child pornography decisions. These decisions 
indicate that the proper mode of analysis is to weigh the 
state’s interest in regulating child pornography against 
the material’s limited social value. See Ferber, 458 U.S. 
at 756-64, 102 S. Ct. 3348; Osborne, 495 U.S. at 108-111, 
110 S. Ct. 1691. The Supreme Court used this test in 
Ferber and found that “the balance of competing inter- 
ests [was] clearly struck and that it [was] permissible to 
consider these materials as without the protection of 
the First Amendment.” Id. at 764, 102 S. Ct. 3348. See 
also Osborne, 495 U.S. at 111, 110 S. Ct. 1691 (finding 
that the “gravity of the State’s interests” outweighed 
Osborne’s limited First Amendment right to possess 
child pornography). 

Virtual child pornography should be evaluated in a 
similar fashion. The majority should have weighed 
Congress’ reasons for banning virtual child pornogra- 
phy against the limited value of such material. 

17 If the 
majority had, it would have realized that Congress’ 
interests in destroying the child pornography market 

17 Scholarly writers also support using a balancing test to deter- 
mine whether virtual child pornography is “outside the protection 
of the First Amendment.” See e.g. Adam J. Wasserman, Vir- 
tual.Child.Porn.Com: Defending the Constitutionality of the 
Criminalization of Computer-Generated Child Pornography by 
the Child Pornography Prevention Act of 1996—A Reply to 
Professor Burke and Other Critics, 35 Harv. J. on Legis. 245, 274- 
78 (1998). 

38a 

and in preventing the seduction of minors outweigh 
virtual child pornography’s exceedingly modest social 
value. Since the balance of competing interests tips in 
favor of the government, virtual child pornography 
should join the ranks of real child pornography as a 
class of speech outside the protection of the First 
Amendment. 

II. 

The analysis does not end with a finding that virtual 
child pornography is without First Amendment pro- 
tection. Statutes can be found unconstitutional if they 
are worded so broadly that they “criminalize an 
intolerable range of constitutionally protected conduct.” 
Osborne, 495 U.S. at 112, 110 S. Ct. 1691. This case 
focuses on the CPPA’s new definition of child pornogra- 
phy which prohibits visual depictions that “appear[ ] to 
be,” or are promoted or distributed “in such a manner 
that conveys the impression,” that they are “of a minor 
engaging in sexually explicit conduct.” 18 U.S.C.A. 
§§ 2256(8)(B), (D) (West Supp. 1999). The majority 
holds that this language is overbroad because it bans 
“material that has been accorded First Amendment 
protection.” Majority Op. at 1095-96. I disagree. 

As a general rule, statutes should not be invalidated 
as overbroad unless the overbreadth is “substantial 

. . . in relation to the statute’s plainly legitimate 
sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 
S. Ct. 2908, 37 L.Ed.2d 830 (1973). The Court has 
cautioned that the overbreadth doctrine is “strong 
medicine” that should be employed “sparingly and only 
as a last resort.” Id. at 613, 93 S. Ct. 2908. Accord- 
ingly, a statute should not be invalidated as overbroad 

39a 

“when a limiting construction has been or could be 
placed on the challenged statute.” Id. 

Appellants suggest that the “appears to be” language 
is so broad that everyday artistic expressions like 
paintings, drawings, and sculptures that depict youthful 
looking subjects in a sexual manner will be criminalized 
under the CPPA. However, even a glancing look at the 
legislative history belies this assertion. Congress 
enacted the CPPA to address the problem of “com- 
puter-generated” child pornography. S. Rep. No. 104- 
358, at 7. In the findings filed with the CPPA, Congress 
repeatedly stated that the law is targeted at visual 
depictions that are “virtually indistinguishable to the 
unsuspecting viewer from unretouched photographic 
images of actual children engaging in sexually explicit 
conduct.” Congressional Findings, at 5, 8, 13. The 
Senate Judiciary Committee explained that the 
“appears to be” language was necessary to cover the 
“same type of photographic images already prohibited, 
but which do[ ] not require the use of an actual minor.” 
S. Rep. No. 104-358, at 21 (emphasis in original). 

From reading the legislative history, it becomes clear 
that the CPPA merely extends the existing prohibi- 
tions on “real” child pornography to a narrow class of 
computer-generated pictures easily mistaken for real 
photographs of real children. See Congressional Find- 
ings, at 13. Therefore, I agree with the United States 
Court of Appeals for the First Circuit which found that 
“drawings, cartoons, sculptures, and paintings depicting 
youthful persons in sexually explicit poses plainly lie 
beyond the Act.” Hilton, 167 F.3d at 72. “By definition, 
they would not be ‘virtually indistinguishable’ from an 
image of an actual minor.” Id. “The CPPA therefore 

40a 

does not pose a threat to the vast majority of every day 
artistic expression, even to speech involving sexual 
themes.” Id. 

There has also been concern that the CPPA prohibits 
constitutionally protected photographic images of 
adults in sexually explicit poses. This contention, 
however, is also without merit. The CPPA explicitly 
states that “[i]t shall be an affirmative defense” to a 
charge of distributing, reproducing or selling child 
pornography that the pornography (1) “was produced 
using an actual person or persons,” (2) each of whom 
“was an adult at the time the material was produced,” 
and (3) “the defendant did not advertise, promote, 
present, describe, or distribute the material in such a 
manner as to convey the impression that it is or con- 
tains visual depictions of a minor engaging in sexually 
explicit conduct.” 18 U.S.C.A. § 2252A(c) (West Supp. 
1999). The CPPA thus shields from prosecution 
sexually explicit visual depictions so long as they are 
produced using actual adults and “the material has not 
been pandered as child pornography.” S. Rep. No. 104- 
358, at 10, 21. Persons—like the appellants in this 
case—who produce and distribute works depicting the 
sexual conduct of actual adults, and do not market the 
depictions as if they contain sexual images of children, 
are thus explicitly protected from culpability under the 
CPPA. 

While there may be other potentially impermissible 
applications of the CPPA, I doubt that they would be 
“substantial . . . in relation to the statute’s plainly 
legitimate sweep.” Broadrick, 413 U.S. at 615, 93 S. Ct. 
2908. Rather than invalidate part of the statute based 
on possible problems that may never occur, it is best to 

41a 

deal with those situations on a case-by-cases basis. See 
Ferber, 458 U.S. at 781, 102 S. Ct. 3348 (Stevens, J., 
concurring) (noting that “[h]ypothetical rulings are 
inherently treacherous and prone to lead us into 
unforeseen errors”). Accordingly, I would find that the 
CPPA is not substantially overbroad. See Hilton, 167 
F.3d at 71-74 (finding that the CPPA is not unconsti- 
tutionally overbroad); United States v. Acheson, 195 
F.3d 645, 650-52 (11th Cir. 1999) (same). 

III. 

I also disagree with the majority that the CPPA is 
unconstitutionally vague. It is well settled that a 
statute is not void for vagueness unless it fails to 
“define the criminal offense with sufficient definiteness 
that ordinary people can understand what conduct is 
prohibited.” Kolender v. Lawson, 461 U.S. 352, 357, 103 
S. Ct. 1855, 75 L.Ed.2d 903 (1983). 

Here, the key phrases of the CPPA are clearly 
defined. The CPPA applies to visual depictions of a 
minor engaging in sexually explicit conduct. A minor is 
defined as “any person under the age of eighteen 
years.” 18 U.S.C.A. § 2256(1) (West Supp. 1999). In 
addition, “sexually explicit conduct” is defined as actual 
or simulated “sexual intercourse . . .; bestiality; 
masturbation; sadistic or masochistic abuse; or 
lascivious exhibition of the genitals or pubic area.” 18 
U.S.C.A. § 2256(2) (West Supp. 1999). Given the de- 
tailed definition of sexually explicit activity, it is un- 
likely that a person of ordinary intelligence would be 
unable to determine what activities are prohibited. 

The majority nevertheless finds fault with the CPPA 
because it believes that the terms “appears to be” and 

42a 

“conveys the impression” are highly subjective and 
could be enforced “in an arbitrary and discriminatory 
fashion.” Majority Op. at 1095. Once again, I disagree. 
With regard to the apparent age of the depicted 
individuals, the government can use the same type of 
objective evidence that it relied on before the CPPA 
went into effect. For example, in cases involving 
prepubescent individuals, the government can show the 
jury the pictures and the jury can determine for itself 
whether the virtual image “appears to be” of a minor. 
See e.g. United States v. Arvin, 900 F.2d 1385, 1390 n. 4 
(9th Cir. 1990) (citing a jury instruction that requires 
the members of the jury to decide whether the 
prepubescent girls are “minors” based upon their own 
“observation of the pictures”), cert. denied 498 U.S. 
1024, 111 S. Ct. 672, 112 L.Ed.2d 664 (1991). In cases in 
which the depicted children have reached puberty, the 
government can call expert witnesses to testify as to 
the physical development of the depicted person, and 
present testimony regarding the way the creator, 
distributor, or possessor labeled the disks, files, or 
videos. See e.g. United States v. Robinson, 137 F.3d 
652, 653 (1st Cir. 1998) (noting that the pornographic 
photographs listed the ages of boys depicted). Based on 
these examples, I agree with the First Circuit which 
found that the standard for evaluating the key pro- 
visions of the CPPA “is an objective one.” Hilton, 167 
F.3d at 75. “A jury must decide, based on the totality of 
the circumstances, whether an unsuspecting viewer 
would consider the depiction to be an actual individual 
under the age of eighteen engaging in sexual activity.” 
Id. 

As an additional safeguard against arbitrary prosecu- 
tions, the government must satisfy the element of 

43a 

scienter before it can obtain a valid conviction under 
the CPPA. See 18 U.S.C.A. § 2252A (West Supp. 1999). 
In any CPPA prosecution, the government must prove 
beyond a reasonable doubt that the individual “know- 
ingly” produced, distributed, or possessed sexually 
explicit material and that the material depicts a person 
who appeared to the pornographer to be under the age 
of eighteen. See Id. See also United States v. X- 
Citement Video, Inc., 513 U.S. 64, 78, 115 S. Ct. 464, 130 
L.Ed.2d 372 (1994) (holding that the scienter require- 
ment “extends to both the sexually explicit nature of 
the material and to the age of the performers”). “Thus, 
a defendant who honestly believes that the individual 
depicted in the image appears to be 18 years old or 
older (and is believed by a jury), or who can show that 
he knew the image was created by having a youthful- 
looking adult pose for it, must be acquitted, so long as 
the image was not presented or marketed as if it 
contained a real minor.” Hilton, 167 F.3d at 75-76. 
Based on these safeguards, the majority’s concerns 
about arbitrary and discriminatory prosecutions are 
misplaced. See Id. at 74-77 (finding that the CPPA is 
not unconstitutionally vague); Acheson, 195 F.3d at 652- 
53 (same). 

IV. 

In sum, the CPPA is not, as the majority claims, an 
attempt to regulate “evil idea[s].” Instead, the CPPA is 
an important tool in the fight against child sexual 
abuse. The CPPA’s definition of child pornography 
provides adequate notice of the type of images that are 
prohibited and does not substantially encroach on 
protected expression. Accordingly, I would find the 
CPPA constitutional. 

44a 

APPENDIX B 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

No. 97-16536 
D.C. No. CV 97-0000281-SC 

THE FREE SPEECH COALITION, ET AL., 
PLAINTIFFS-APPELLANTS 

v. 

JANET RENO, ATTORNEY GENERAL, ET AL., 
DEFENDANTS-APPELLEES 

[Filed: July 19, 2000] 

ORDER 

Before: FERGUSON and THOMAS, Circuit Judges, 
and MOLLOY, 

18 District Judge. 

The panel as constituted above, has voted as follows: 
Judges Thomas and Molloy voted to deny the petition 
for rehearing. Judge Thomas voted to reject the sug- 
gestion for rehearing en banc and Judge Molloy recom- 
mends rejection of the suggestion; Judge Ferguson 
voted to grant the petition for rehearing and recom- 
mended granting the suggestion for rehearing en banc. 

18 The Honorable Donald W. Molloy, United States District 
Judge for the District of Montana, sitting by designation. 

45a 

A judge of the court called for a vote on the 
suggestion for rehearing en banc. A vote was taken, 
and a majority of the active judges of the court failed to 
vote for en banc rehearing. Fed. R. App. P. 35(f). 

The petition for rehearing is denied and the sug- 
gestion for rehearing en banc is rejected. 

WARDLAW, Circuit Judge, with whom O’SCANNLAIN 
and T.G. NELSON, Circuit Judges, join, dissenting from 
denial of rehearing en banc: 

I respectfully dissent from the order denying the 
petition for rehearing en banc. The divided panel deci- 
sion warranted this Court’s en banc attention because it 
creates a conflict with our sister circuits on an issue of 
exceptional importance. 

The conflict? The panel majority struck down the 
provisions of the Child Pornography Prevention Act of 
1996 (“CPPA”) that criminalize visual depictions that 
“appear to be” or “convey the impression” of child 
pornography. See Free Speech Coalition v. Reno, 198 
F.3d 1083 (9th Cir. 1999). It held that these provisions 
violate the First Amendment because they prohibit 
visual images of “virtual” child pornography along with 
“actual” child pornography. It did so in the face of 
decisions of the First and Eleventh Circuits upholding 
the same provisions of the CPPA. See United States v. 
Acheson, 195 F.3d 645 (11th Cir. 1999) (rejecting First 
Amendment challenge to CPPA on grounds of vague- 
ness, overbreadth, and facial invalidity); United States 

v. Hilton, 167 F.3d 61 (1st Cir. 1999) (same); see also 
United States v. Pearl, 89 F. Supp. 2d 1237 (D. Utah 
2000) (holding CPPA survives strict scrutiny review 
and expressly rejecting the panel’s analysis). 

46a 

The panel majority did not directly flout Supreme 
Court authority (the Court has yet to address “virtual” 
as opposed to “actual” child pornographic images). It 
did, however, disregard the Court’s analysis of the 
compelling governmental interest in “safeguarding the 
physical and psychological well-being of a minor,” 
which, it reasoned, includes the prevention of sexual 
exploitation and abuse of children. New York v. Ferber, 
458 U.S. 747, 756-63 (1982) (holding that “actual” child 
pornography is a “category of material outside the 
protection of the First Amendment”). The panel major- 
ity narrowed this interest to include only the 
prevention of harm to real children stemming from 
their use in the production of pornographic images. At 
least two more compelling governmental interests are 
at stake, however, both of which have been identified 
by Congress as justifications for the regulation at issue. 

First, as the Supreme Court has explained, the “evi- 
dence suggests that pedophiles use child pornography 
to seduce other children into sexual activity.” Osborne 

v. Ohio, 495 U.S. 103, 111 (1990) (citing 1 Attorney 
General’s Comm’n on Pornography, Final Report 649 
(1986); D. Campagna & D. Poffenberger, Sexual Traf- 
ficking in Children 118 (1988); and S. O’Brien, Child 
Pornography 89 (1983)). In Osborne, the Court rea- 
soned that the “gravity of the State’s interests in this 
context,” including the use of child pornography in the 
seduction of children, justified a ban on possession of 
child pornography. Id. Thus, the harm to “real” chil- 
dren is real, whether or not the pornographic images 
which look real (or else they would not effectively serve 
their purpose) are actually computer-generated. 

47a 

Second, Congress has a compelling interest in ensur- 
ing the ability to enforce prohibitions of actual child 
pornography, an interest achieved through a ban on 
visual depictions which “appear[ ] to be . . . of a minor 
engaging in sexually explicit conduct,” 18 U.S.C. 
§ 2256(8): 

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 become almost impossible for the 
Government to meet its burden of proving that a 
pornographic image is of a real child. Statutes pro- 
hibiting the possession of child pornography pro- 
duced using actual children would be rendered 
unenforceable and pedophiles who possess porno- 
graphic depictions of actual children will go free 
from punishment. 

S. Rep. No. 104-358, pt. IV(B); see also Hilton, 167 F.3d 
at 73 (“As technology improves and access to technol- 
ogy increases, efforts to eradicate the child pornogra- 
phy industry could be effectively frustrated if Congress 
were prevented from targeting sexually explicit 
material that ‘appears to be’ of real children.”). Defen- 
dants have asserted that reasonable doubt exists where 
the government fails to prove that the images at issue 
were of an actual minor rather than of an adult altered 
to resemble one. See S. Rep. No. 104-358, pt. IV(B) 
(citing as an example United States v. Kimbrough, 69 
F.3d 723, 733 (5th Cir. 1995)).1 In an analogous 

1 The government was able to overcome this defense in Kim- 
brough only because it located and produced the original magazine 
images, which pre-dated the computer technology, from which the 

48a 

situation, the Supreme Court held that the First 
Amendment did not bar the State of New York from 
prohibiting the distribution of pornographic images of 
children produced outside the state, noting that “[i]t is 
often impossible to determine where such material is 
produced.” Ferber, 458 U.S. at 766 n. 19. Just as the 
inability to distinguish domestic from foreign materials 
justifies a ban on both, the impossibility of determining 
whether an image is “actual” or “virtual” warrants a 
prohibition of both. 

Whether or not an individual judge agrees with the 
majority decision, our Court should have convened an 
en banc panel to consider this case because of its 
exceptional importance. A two-judge majority struck 
down provisions of a federal statute as unconstitutional 
when the only other federal courts to rule on the issue 
have rejected the same constitutional challenges. The 
panel majority simply dismissed the congressional 
findings which were based on substantial evidence of 
the danger to real children of the rapidly advancing 
computer technology. See S. Rep. No. 104-358, pt. 
IV(B); see also Turner Broadcasting Sys. v. FCC, 520 
U.S. 180, 195 (1997) (requiring courts to “accord 
substantial deference to the predictive judgments of 
Congress” in First Amendment cases). 

The distinction between “actual” child porno- 
graphy—unprotected speech—and “virtual” child 
pornography—speech so highly regarded by the panel 
majority that it applied the highest level of judicial 

computer-generated images were scanned. See S. Rep. No. 104- 
358, pt. IV(B). 

49a 

review—should have been more closely scrutinized by 
our Court. As Judge Ferguson said in dissent: 

Both real and virtual child pornography contain 
visual depictions of children engaging in sexually 
explicit activity. The only difference is that real 
child pornography uses actual children in its pro- 
duction, whereas virtual child pornography does 
not. While this distinction is noteworthy, it does not 
somehow transform virtual child pornography into 
meaningful speech. Virtual child pornography, like 
its counterpart real child pornography, is of “slight 
social value” and constitutes “no essential part of 
the exposition of ideas.” 

Free Speech Coalition, 198 F.3d at 1100 (Ferguson, J., 
dissenting) (quoting Chaplinsky v. New Hampshire, 
315 U.S. 568, 572 (1942)). 

This issue is of immense importance not only because 
our Court strikes down a congressional enactment, but 
also because of the ready dissemination of such images 
via the Internet, and the lack of equally sophisticated 
tools for preventing their reach to those most 
vulnerable to their impact. The panel majority elevates 
the free speech rights of pedophiles over the compelling 
governmental interest in protecting our children. It 
does so in the context of technology evolving so quickly 
that even the applicable legal standards are in flux. 
There cannot be many other issues that are more “en- 
banc worthy” than this. 

50a 

APPENDIX C 

UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF CALIFORNIA 

No. C 97-0281 SC 

THE FREE SPEECH COALITION, ET AL., PLAINTIFFS 

v. 

JANET RENO, ET AL., DEFENDANTS 

[Filed: Aug. 12, 1997] 

ORDER RE MOTIONS FOR SUMMARY JUDGMENT 

I. INTRODUCTION 

Plaintiffs in this action consist of a trade association 
that defends First Amendment rights against censor- 
ship, the publisher of a book “dedicated to the education 
and expression of the ideals and philosophy associated 
with nudism,” and individual artists whose works 
include nude and erotic photographs and paintings. 
Plaintiffs have filed a pre-enforcement challenge to the 
constitutionality of certain provisions of the Child Por- 
nography Prevention Act of 1996 (“CPPA”), alleging 
that they are vague, overbroad, and constitute imper- 
missible content-specific regulations and prior re- 
straints on free speech. Both plaintiffs and defendants 
have moved for summary judgment. 

51a 

II. BACKGROUND 

Congress has passed several laws 

19 in an ongoing 
attempt to combat child pornography, the market that 
such pornography has created and maintained, and the 
harms that such pornography wreaks on children’s 
physical, psychological, emotional, and mental health. 
S. Rep. No. 104-358, at 8 (1996) (“Sen. Rep.”). The most 
recent of these laws was passed in 1996, and was 
enacted specifically to combat the use of computer 
technology to produce pornography that conveys the 
impression that children were used in the photographs 
or images. In passing the legislation, Congress recog- 
nized that the dangers of child pornography are not 
limited to its effect on the children actually used in the 
pornography. Additionally, child pornography “stimu- 
lates the sexual appetites and encourages the activities 
of child molesters and pedophiles, who use it to feed 
their sexual fantasies.” Sen. Rep. at 12. Child por- 
nography is also used by child molesters and pedophiles 
“as a device to break down the resistance and inhibi- 
tions of their victims or targets of molestation, espe- 
cially when these are children.” Id. at 13. “A child who 
may be reluctant to engage in sexual activity with an 
adult, or to pose for sexually explicit photos, can 
sometimes be persuaded to do so by viewing depictions 
of other children participating in such activity.” Id. 

Congress recognized that computer technology is 
capable of “alter[ing] perfectly innocent pictures of 
children . . . to create visual depictions of those 
children engaging in any imaginable form of sexual 

19 See Am. Library Ass’n. v. Barr, 956 F.2d 1178, 1181-85 (D.C. 
Cir. 1992) for a discussion of the history of national anti-child por- 
nography legislation. 

52a 

conduct.” Id. at 15. These computer-generated pic- 
tures are often indistinguishable from photographic 
images of actual children. “Computer generated images 
which appear to depict minors engaging in sexually 
explicit conduct are just as dangerous to the well-being 
of . . . children as material using actual children.” Id. 
at 19. Thus, Congress passed the 1996 Act in order to 
prevent the effects that such computer-generated im- 
ages might have, even if no children were actually used 
in the creation of the images. 

Specifically, the CPPA defines child pornography as: 

any visual depiction, including any photograph, film, 
video, picture, or computer or computer-generated 
image or picture, whether made or produced by 
electronic, mechanical, or other means, of sexually 
explicit conduct, where— 

(A) the production of such visual depiction in- 
volves the use of a minor engaging in sexually 
explicit conduct; 

(B) such visual depiction is, or appears to be, of a 
minor engaging in sexually explicit conduct; 

(C) such visual depiction has been created, 
adapted, or modified to appear that such an identifi- 
able minor is engaging in sexually explicit conduct; 
or 

(D) such visual depiction is advertised, promoted, 
presented, described, or distributed in such a 
manner that conveys the impression that the mate- 
rial is or contains a visual depiction of a minor 
engaging in sexually explicit conduct. . . . 

53a 

18 U.S.C. § 2256(8). 

The CPPA goes on to define “sexually explicit 
conduct” as actual or simulated: 

(A) sexual intercourse, including genital-genital, 
oral-genital, anal-genital, or oral-anal, whether 
between persons of the same or opposite sex; 

(B) bestiality; 

(C) masturbation; 

(D) sadistic or masochistic abuse; or 

(E) lascivious exhibition of the genitals or pubic 
area of any person. 

18 U.S.C. § 2256(2). 

The CPPA also provides an affirmative defense for 
violations of the Act if: 

(1) the alleged child pornography was produced 
using an actual person or persons engaging in 
sexually explicit conduct; 

(2) each such person was an adult at the time the 
material was produced; and 

(3) the defendant did not advertise, promote, 
present, describe, or distribute the material in such 
a manner as to convey the impression that it is or 
contains a visual depiction of a minor engaging in 
sexually explicit conduct. 

18 U.S.C. § 2252A(c). 

54a 

Plaintiffs contend that the CPPA “sweeps within its 
purview materials that involve no actual children and 
that traditionally and logically have never been 
considered to be child pornography.” Pls.’ Mem. in 
Supp. of Mot. for Summ. Judg. at 3. They argue that 
the CPPA, by prohibiting images that appear to be of 
children, actually criminalizes the production and sale of 
legitimate works that include images that look like 
children, but that in reality were made using adults, not 
children. They allege that the CPPA’s “use of over- 
broad and vague language criminalizes forms of ex- 
pression in violation of the First and Fifth Amend- 
ments.” Pls.’ Mem. in Supp. of Mot. for Summ. Judg. 
at 4. 

III. LEGAL ANALYSIS 

A. Standing 

Defendants first argue that plaintiffs do not have 
standing to bring a claim in this Court, as they have not 
suffered “actual or threatened injury as a result of the 
putatively illegal conduct of the defendant.” Valley 
Forge Christian College v. Americans United for 
Separation of Church and State, Inc., 454 U.S. 464, 472 
(1982). Defendants contend that plaintiffs’ activities 
fall squarely within the affirmative defense set out in 18 
U.S.C. § 2252A(c), as plaintiffs have admitted that their 
works involve the depiction only of non-minors 

20 and 
that they do not market their works as child porno- 
graphy. 

21 

20 Pls.’ Opp. to Defs.’ Mot. for Summ. Judg. at 1. 

21 Defendants also contend that plaintiffs lack standing because, 
in their complaint, plaintiffs allege that they do not produce the 
type of “hard-core” sexual images that would be subject to regu- 

55a 

Plaintiffs counter that they have indeed been injured 
by the CPPA, as plaintiffs have, in some cases, dis- 
continued the production, distribution, and possession 
of the certain materials for fear of prosecution under 
the CPPA. The CPPA, therefore, has had a chilling 
effect on their speech which is sufficient to constitute 
standing. See, e.g., San Diego County Gun Rights 
Committee v. Reno, 98 F.3d 1121, 1129 (9th Cir. 1996) 
(holding that a chilling effect on speech is a sufficient 
basis to establish standing in overbreadth facial chal- 
lenges to government actions involving free speech); 
Stoianoff v. Montana, 695 F.2d 1214, 1223 (9th Cir. 
1983). 

Furthermore, plaintiffs contend that they have 
standing to bring their suit because the affirmative 
defense set out in 18 U.S.C. § 2252A(c) does not protect 
consumers and distributors who possess the potentially 
illegal materials but who are not involved in the 
production of sexually explicit materials, and who 
therefore have no way of knowing whether or not the 
persons depicted are real and are not minors. Plaintiffs 
have set forth affidavits of businesses and individuals 
engaged in distributing, selling, or renting sexually 
explicit materials who have withheld or stopped 
distributing certain of plaintiffs’ products that plaintiffs 
argue should fit within the statutory defense, out of 
fear that they will be prosecuted under the CPPA for 

lation by the CPPA. As a result, defendants argue, plaintiffs can- 
not demonstrate a real and immediate threat of injury and there- 
fore cannot bring this claim. See Barr, 956 F.2d at 1187. The 
Court rejects this argument. The parameters of pornography are 
difficult to define, and dismissing plaintiffs’ claims for lack of stand- 
ing is not appropriate in this case, given the variety of the 
plaintiffs’ products. 

56a 

possession of the materials. Plaintiffs are no longer 
marketing or sending those products to its distributors. 
See Virginia v. Am. Booksellers Ass’n., Inc., 484 U.S. 
383, 393 (1988) (harm resulting from speech regulation 
may be one of self-censorship). 

The Court finds that plaintiffs’ allegations are suffi- 
cient to establish the requisite standing to bring their 
claims before the Court. 

B. Standard of Review 

In evaluating the constitutionality of legislation that 
infringes free speech under the First Amendment, the 
Supreme Court has identified the appropriate criteria 
by which the language of the act and the purposes 
underlying the passage of the act shall be judged. 
“[T]he government may impose reasonable restrictions 
on the time, place, or manner of protected speech, 
provided the restrictions are justified without reference 
to the content of the regulated speech, that they are 
narrowly tailored to serve a significant governmental 
interest, and that they leave open ample alternative 
channels for communication of the information.” Ward 

v. Rock Against Racism, 491 U.S. 781, 791, reh’g 
denied, 492 U.S. 937 (1989) (internal quotations 
omitted). 

In order to determine whether a regulation is 
content-neutral, “the principal inquiry . . . is whether 
the government has adopted a regulation of speech 
because of disagreement with the message it conveys.” 
Id. A “regulation that serves purposes unrelated to the 
content of expression is deemed neutral, even if it has 
an incidental effect on some speakers or messages but 
not others.” Id.; see also City of Renton v. Playtime 

57a 

Theatres, Inc., 475 U.S. 41, 47-48, reh’g denied, 475 U.S. 
1132 (1986) (upholding ordinance prohibiting adult 
motion picture theaters within 1,000 feet of residential 
zones, churches, parks, or schools on basis that regu- 
lation was content-neutral because it was aimed at the 
secondary effects of such theaters on the surrounding 
community). If it can be shown that the regulation is 
justified without reference to the content of the speech, 
then it is deemed content-neutral. Renton, 475 U.S. at 

48. 

The contested provisions of the CPPA are content- 
neutral regulations. They have clearly been passed in 
order to prevent the secondary effects of the child 
pornography industry, including the exploitation and 
degradation of children and the encouragement of 
pedophilia and molestation of children. Furthermore, 
the Supreme Court has afforded “greater leeway” to 
regulations of child pornography. New York v. Ferber, 
458 U.S. 747, 756 (1982). The Supreme Court has 
“sustained legislation aimed at protecting the physical 
and well-being of youth even when the laws have oper- 
ated in the sensitive area of constitutionally protected 
rights.” Id. at 757. Given the nature of the evils that 
anti-child pornography laws are intended to prevent, 
the CPPA can easily be deemed a content-neutral 
regulation. For even if no children are involved in the 
production of sexually explicit materials, the devastat- 
ing secondary effect that such materials have on society 
and the well-being of children merits the regulation of 
such images. 

Plaintiffs’ contention that the CPPA is content- 
specific is unpersuasive. They claim that the terms of 
the CPPA clearly target materials that convey certain 

58a 

ideas to their viewers. The Court finds that the CPPA 
is designed to counteract the effect that such materials 
has on its viewers, on children, and to society as a 
whole, and is not intended to regulate or outlaw the 
ideas themselves. If child pornography is targeted by 
the regulation, it is due to the effect of the pornography 
on innocent children, not to the nature of the materials 
themselves, especially if that pornography contains 
computer-generated images of children. See, e.g., Am. 
Library Ass’n v. Reno, 33 F.3d 78, 86 (D.C. Cir. 1994) 
(legislation requiring producers of sexually explicit 
material to document the names and ages of the per- 
sons portrayed was content-neutral, as it was intended 
“not to regulate the content of sexually explicit materi- 
als, but to protect children by deterring the production 
and distribution of child pornography”); Chesapeake 
B&M, Inc., v. Hartford County, 58 F.3d 1005, 1010 (4th 
Cir.), cert denied, 116 S. Ct. 567 (1995). 

According to the Supreme Court, “[a] content-neutral 
regulation will be sustained under the First Amend- 
ment if it advances important governmental interests 
unrelated to the suppression of free speech and does 
not burden substantially more speech than necessary to 
further those interests.” Turner Broadcasting Sys., 
Inc. v. Fed. Communications Comm’n, 117 S. Ct. 1174, 
1186 (1997). 

The CPPA clearly advances important and com- 
pelling government interests: the protection of children 
from the harms brought on by child pornography and 
the industry that such pornography has created. It is 
beyond debate that the protection of children from 
sexual exploitation is an important government inter- 
est; indeed, the Supreme Court has deemed the 

59a 

protection of the physical and psychological well-being 
of minors to be a “compelling” interest. Ferber, 458 
U.S. at 756-7; see also Sen. Rep. at 9 (There is a “com- 
pelling governmental interest [in prohibiting] all forms 
of child pornography.”) Furthermore, the CPPA bur- 
dens no more speech than necessary in order to protect 
children from the harms of child pornography. As 
stated aforesaid, the CPPA specifically defines “sexu- 
ally explicit conduct” as “sexual intercourse, including 
genital-genital, oral-genital, anal-genital, or oral-anal, 
whether between persons of the same or opposite sex; 
bestiality; masturbation; sadistic or masochistic abuse; 
or lascivious exhibition of the genitals or pubic area of 
any person.” 18 U.S.C. § 2256(2). It also defines “child 
pornography” as any visual depiction of sexually ex- 
plicit conduct where the production involves the actual 
use of minors engaging in such conduct, the depiction is 
or appears to be of a minor engaging in such conduct, 
the depiction has been created, adapted, or modified to 
appear that a minor is engaging in such conduct, or the 
depiction is advertised, presented or promoted in such a 
way as to convey the impression that a minor is engag- 
ing in such conduct. 18 U.S.C. § 2256(8). Although 
there may be a degree of ambiguity in the phrase 
“appears to be a minor,” any ambiguity regarding 
whether a particular person depicted in a particular 
work appears to be over the age of eighteen can be 
resolved by examining whether the work was marketed 
and advertised as child pornography. Given that the 
goal of the CPPA is to prevent the digital manipulation 
of images to create child pornography even when no 
children were actually used in the production of the 
material, the CPPA meets that goal by regulating the 
narrowest range of materials that might fall within the 
targeted category and including an explicit definition of 

60a 

the prohibited conduct. Congress certainly intended to 
exclude from the CPPA’s reach materials that do not 
involve the actual or apparent depiction of children: 
“[The CPPA] does not, and is not intended to, apply to a 
depiction produced using adults engaging in sexually 
explicit conduct, even where a depicted individual may 
appear to be a minor.” Sen. Rep. at 21. 

The affirmative defense laid out in 18 U.S.C. 
§ 2252A(c) limits even further the scope of the CPPA 
by removing from the range of criminal behavior the 
exact type of activity in which plaintiffs claim to 
engage. Plaintiffs contend that their works do not 
involve actual children, and that their works are not 
marketed or advertised as works featuring sexually 
explicit conduct by children. Their behavior, then, falls 
squarely within the category specifically set out by 
Congress as beyond the scope of the CPPA. The Court 
finds that the incidental harms laid out by the plaintiffs 
as support for their assertion of standing in this action 
do not amount to the CPPA’s regulating “substantially 
more speech than necessary to further” the goal of 
preventing the dangers of child molestation and pedo- 
philia. 

22 See Pls.’ Opp. to Defs.’ Mot. for Summ. Judg. 
at 7-8. Although the effects of a content-neutral speech 
regulation may be substantial, if they are incidental and 
largely unavoidable, they will pass constitutional 
muster. Am. Library Ass’n. v. Reno, 33 F.3d at 87-8. 
Also, “[t]he mere assertion of some possible self- 
censorship resulting from a statute is not enough to 

22 These incidental harms include the depiction of images 
created within the imagination of the artist. If the images depicted 
are of children, albeit imaginary ones, and not of actual adults or 
imaginary people who unequivocally appear to be adults, then the 
evils associated with child pornography cannot be avoided. 

61a 

render an antiobscenity law unconstitutional.” Fort 
Wayne Books, Inc. v. Indiana, 489 U.S. 46, 60(1989). 
The contested provisions of the CPPA survive the 
intermediate scrutiny set forth by the Supreme Court 
for content-neutral regulations. 

The instant case is quite similar to that which the 
Supreme Court confronted in New York v. Ferber, 458 
U.S. 747 (1982). In Ferber, the Court upheld a New 
York statute that prohibited persons from knowingly 
promoting a sexual performance by a child under the 
age of 16 by distributing material which depicts such a 
performance. The Court concluded that the statute did 
not violate the First Amendment. According to the 
Court, the unprotected nature of the works involved 
permitted the state to prohibit the particular category 
of works from distribution, especially given the 
compelling state interest in protecting children from 
the harms of child pornography. 458 U.S. at 765. 

The final inquiry this Court must make is whether 
the regulations leave open alternative channels for 
communication of the information at issue. Defendants 
contend that “plaintiffs are free to communicate any 
substantive message they desire, through any medium 
they desire, as long as they are not depicting actual or 
computer-generated children engaged in sexually 
explicit conduct.” Defs.’ Mem. in Supp. of Mot. for 
Summ. Judg. at 20. The Court finds this argument per- 
suasive. Because plaintiffs allege that their materials 
are not produced using minor children, and that they do 
not market their materials so as to suggest that they 
are child pornography or to exploit the sexual qualities 
of the work as child pornography, plaintiffs should have 
no trouble conforming their activities to fit within the 

62a 

confines of the text of the CPPA or to escape the reach 
of the law altogether. 

C. Overbreadth and Vagueness 

Plaintiffs contend that the CPPA is unconstitu- 
tionally overbroad and vague. First, regulations that 
prohibit constitutionally protected speech as well as 
activity that can legitimately be prohibited are 
considered to be overbroad. Thornhill v. Alabama, 310 
U.S. 88, 97 (1940). Plaintiffs base their overbreadth 
argument on the assertion that the CPPA “impermissi- 
bly suppresses material that is protected under the 
First Amendment” by defining child pornography as 
including visual depictions of adults that appear to be 
minors. Pls.’ Mem. in Supp. of Mot. for Summ. Judg. 
at 12. In doing so, plaintiffs argue, the CPPA “bans a 
wide array of sexually-explicit, non-obscene material 
that has serious literary, artistic, political, and scientific 
value.” Pls.’ Mem. in Supp. of Mot. for Summ. Judg. at 

13. Finally, plaintiffs cite the Supreme Court’s recent 
ruling in Reno v. ACLU that the governmental interest 
in protecting children “does not justify an unnecessarily 
broad suppression of speech addressed to adults.” 1997 
U.S. LEXIS 4037 at *54 (striking as unconstitutional 
two provisions of the Communications Decency Act of 
1996 that prevent the transmission of “indecent” and 
“patently offensive” materials over the Internet). 

The Court finds that the CPPA is not overbroad. It 
specifies that only materials that do not use adults and 
that appear to be child pornography, even if they are 
digitally produced, are prohibited. By plaintiffs’ own 
admission, plaintiffs’ products do not fall into these 
categories and are also exempt under the CPPA’s 
affirmative defense provisions. It is highly unlikely 

63a 

that the types of valuable works plaintiffs fear will be 
outlawed under the CPPA—depictions used by the 
medical profession to treat adolescent disorders, 
adaptations of sexual works like “Romeo and Juliet,” 
and artistically-valued drawings and sketches of young 
adults engaging in passionate behavior—will be treated 
as “criminal contraband.” As long as a work does not 
depict children, or what appears to be children, 
engaged in sexually explicit conduct as defined by the 
statute, and the work is not marketed as child porno- 
graphy or in such a way that exploits its sexual nature 
as child pornography, then there is no likelihood that 
the work will be prohibited by the CPPA. The CPPA is 
not overbroad because it prohibits only those works 
necessary to prevent the secondary pernicious effects 
of child pornography from reaching minors. 

Plaintiffs contend that the CPPA is also unconstitu- 
tionally vague because it does not give a person of 
ordinary intelligence a reasonable opportunity to know 
what is prohibited so that he may act accordingly. 
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). 
However, the CPPA does exactly what the Supreme 
Court has required of child pornography legislation as 
set out in Ferber: it must (1) adequately define the 
prohibited conduct; (2) be limited to visual depictions of 
children below a specific age; and (3) suitably limit and 
describe the category of forbidden “sexual conduct.” 
458 U.S. at 764. The CPPA clearly and specifically 
defines the prohibited conduct as the depiction of 
children—engaged in sexually explicit conduct. It is 
limited to visual depictions of minors, but simply 
redefines the term “depiction” to include images of 
children that were produced using computers or other 
artificial means. Finally, it suitably limits and 

64a 

describes the category of forbidden conduct. As long as 
the person portrayed in the work is an adult, and the 
work is not marketed or advertised as child 
pornography and does not convey the impression that it 
is child pornography, then the CPPA’s affirmative 
defense applies and removes the work from the scope of 
its provisions. The Court finds that the CPPA is not 
unconstitutionally vague, as it gives sufficient guidance 
to a person of reasonable intelligence as to what it 
prohibits. 

23 

D. Prior Restraint 

Plaintiffs contend that the CPPA imposes a prior 
restraint on speech by enacting a complete ban on 
material that contains sexually-explicit depictions of 
adults who appear to be minors and by chilling the 
expression of “artists, photographers, film makers, 
publishers, and merchants” by preventing them from 
disseminating such depictions. Plaintiffs also contend 
that the CPPA places unbridled discretion in the hands 
of government officials and deals an unnecessarily 
severe punishment for an incorrect determination of 
whether an adult appears to be a minor. The Court 
agrees with defendants that the CPPA neither com- 
pletely bans depictions of adults who appear to be 
minors nor punishes producers or distributors who 
create works in which adults appear who might be 
mistaken as minors. Indeed, the affirmative defense 
laid out in 18 U.S.C. § 2252A(c) clearly permits the use 

23 For examples of other cases that have upheld similarly 
worded child pornography statutes against vagueness challenges, 
see, e.g., U.S. v. Smith, 795 F.2d 841 (9th Cir. 1986), cert. denied, 
481 U.S. 1032 (1987); U.S. v. Lamb, 945 F. Supp. 441 (N.D.N.Y. 
1996). 

65a 

of adults, even if they look like minors, as long as the 
works in which they appear are not marketed as child 
pornography. In addition, “[n]o government official is 
vested with authority to permit or deny plaintiffs the 
right to produce these works, and thus the [CPPA] 
imposes no unconstitutional prior restraint on speech.” 
Defs.’ Opp. to Pls.’ Mot. for Summ. Judg. at 17-18. The 
CPPA represents no more of a prior restraint on speech 
than the New York statute at issue in Ferber, and the 
CPPA comes within the rationale of the Supreme 
Court’s holding in that case. Because the CPPA does 
not require advance approval for production or distr- 
ibution of adult pornography that does not use minors, 
and does not effect a complete ban on constitutionally 
protected material, it does not constitute an improper 
prior restraint on speech. 

IV. CONCLUSION 

Therefore, this court finds that the CPPA meets 
constitutional standards and is therefore constitutional 
as written. For the foregoing reasons, plaintiffs’ motion 
for summary judgment is hereby DENIED. Defen- 
dants’ motion for judgment on the pleadings is 

GRANTED. 

IT IS SO ORDERED. 

Dated: August 12, 1997. 

/s/ SAMUEL CONTI 

United States District 

Judge 

66a 

APPENDIX D 

UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF CALIFORNIA 

No. C 97-0281 SC 

THE FREE SPEECH COALITION, ET AL., PLAINTIFFS 

v. 

JANET RENO, ET AL., DEFENDANTS 

[Filed: Aug. 12, 1997] 

JUDGMENT 

In accordance with the Order granting defendants’ 
motion for judgment on the pleadings, it is hereby 
ordered, adjudged, and decreed that judgment be 
entered in favor of defendants and against plaintiffs. 

IT IS SO ORDERED. 

Dated: August 12, 1997. 

/s/ SAMUEL CONTI 

United States District 

Judge 

67a 

APPENDIX E 

1. Section 2251 Note of Title 18 of the United States 
Code states in pertinent part as follows: 

CONGRESSIONAL FINDINGS 

Pub. L. 104-208, Div. A, Title I, § 101(a) [Title I, 
§ 121, subsec. 1], Sept. 30, 1996, 110 Stat. 3009-26, 
provided that: “Congress finds that— 

“(1) the use of children in the production of sexually 
explicit material, including photographs, films, videos, 
computer images, and other visual depictions, is a form 
of sexual abuse which can result in physical or psy- 
chological harm, or both, to the children involved; 

“(2) where children are used in its production, child 
pornography permanently records the victim’s abuse, 
and its continued existence causes the child victims of 
sexual abuse continuing harm by haunting those 
children in future years; 

“(3) child pornography is often used as part of a 
method of seducing other children into sexual activity; 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; 

“(4) 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; such use of child pornography can 
desensitize the viewer to the pathology of sexual abuse 

68a 

or exploitation of children, so that it can become 
acceptable to and even preferred by the viewer; 

“(5) new photographic and computer imaging 
technologies make it possible to produce by electronic, 
mechanical, or other means, 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; 

“(6) computers and computer imaging technology 
can be used to— 

“(A) alter sexually explicit photographs, films, and 
videos in such a way as to make it virtually impossible 
for unsuspecting viewers to identify individuals, or to 
determine if the offending material was produced using 
children; 

“(B) produce visual depictions of child sexual 
activity designed to satisfy the preferences of individ- 
ual child molesters, pedophiles, and pornography 
collectors; and 

“(C) alter innocent pictures of children to create 
visual depictions of those children engaging in sexual 
conduct; 

“(7) the creation of distribution of child pornogra- 
phy which includes an image of a recognizable minor 
invades the child’s privacy and reputational interests, 
since images that are created showing a child’s face or 
other identifiable feature on a body engaging in sexu- 

69a 

ally explicit conduct can haunt the minor for years to 
come; 

“(8) 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, 
or on a child where the material is being used as a 
means of seducing or breaking down the child’s inhibi- 
tions to sexual abuse or exploitation, is the same 
whether the child pornography consists of photographic 
depictions of actual children or visual depictions 
produced wholly or in part by electronic, mechanical, or 
other means, including by computer, which are virtually 
indistinguishable to the unsuspecting viewer from 
photographic images of actual children; 

“(9) the danger to children who are seduced and 
molested with the aid of child sex pictures is just as 
great when the child pornographer or child molester 
uses visual depictions of child sexual activity produced 
wholly or in part by electronic, mechanical, or other 
means, including by computer, as when the material 
consists of unretouched photographic images of actual 
children engaging in sexually explicit conduct; 

“(10)(A) the existence of and traffic in child 
pornographic images creates the potential for many 
types of harm in the community and presents a clear 
danger to all children; and 

“(B) it inflames the desires of child molesters, 
pedophiles, and child pornographers who prey on chil- 
dren, thereby increasing the creation and distribution 
of child pornography and the sexual abuse and 
exploitatoin of actual children who are victimized as a 
result of the existence and use of these materials; 

70a 

“(11)(A) the sexualizatoin and eroticization of 
minors through any form of child pornographic images 
has a deleteroius effect on all children by encouraging a 
societal perception of children as sexual objects and 
leading to further sexual abuse and exploitatoin of 
them; and 

“(B) this sexualization of minors creates an un- 
wholesome environment which affects the psychologi- 
cal, mental and emotional development of children and 
undermines the efforts of parents and families to 
encourage the sound mental, moral and emotional 
development of them; and 

“(12) prohibiting the possession and viewing of child 
pornography will encourage the possessors of such 
material to rid themselves of or destroy the material, 
thereby helping to protect the victims of child 
pornography and to eliminate the market for the sexual 
exploitative use of children; and 

“(13) the elimination of child pornography and the 
protection of children from sexual exploitation provide 
a compelling governmental interest for prohibiting the 
production, distribution, possession, sale, or viewing of 
visual depictions of children engaging in sexually 
explicit conduct, including both photographic images of 
actual children engaging in such conduct and depictions 
produced by computer or other means which are 
virtually indistinguishable to the unsuspecting viewer 
from photographic images of actual children engaging 
in such conduct.” 

71a 

§ 2252A. Certain activities relating to material 
constituting or containing child pornography 

(a) Any person who— 

(1) knowingly mails, or transports or ships in 
interstate or foreign commerce by any means, 
including by computer, any child pornography; 

(2) knowingly receives or distributes— 

(A) any child pornography that has been 
mailed, or shipped or transported in interstate 
or foreign commerce by any means, including 
by computer; or 

(B) any material that contains child 
pornography that has been mailed, or shipped 
or transported in interstate or foreign com- 
merce by any means, including by computer; 

(3) knowingly reproduces any child pornogra- 
phy for distribution through the mails, or in inter- 
state or foreign commerce by any means, including 
by computer; 

(4) either— 

(A) in the special maritime and territorial 
jurisdiction of the United States, or on any land 
or building owned by, leased to, or otherwise 
used by or under the control of the United 
States Government, or in the Indian country 
(as defined in section 1151), knowingly sells or 
possesses with the intent to sell any child 
pornography; or 

72a 

(B) knowingly sells or possesses with the 
intent to sell any child pornography that has 
been mailed, or shipped or transported in 
interstate or foreign commerce by any means, 
including by computer, or that was produced 
using materials that have been mailed, or 
shipped or transported in interstate or foreign 
commerce by any means, including by com- 
puter; or 

(5) either— 

(A) in the special maritime and territorial 
jurisdiction of the United States, or on any land 
or building owned by, leased to, or otherwise 
used by or under the control of the United 
States Government, or in the Indian country 
(as defined in section 1151), knowingly pos- 
sesses any book, magazine, periodical, film, 
videotape, computer disk, or any other mate- 
rial that contains an image of child pornogra- 
phy; or 

(B) knowingly possesses any book, maga- 
zine, periodical, film, videotape, computer disk, 
or any other material that contains an image of 
child pornography that has been mailed, or 
shipped or transported in interstate or foreign 
commerce by any means, including by com- 
puter, or that was produced using materials 
that have been mailed, or shipped or trans- 
ported in interstate or foreign commerce by 
any means, including by computer, 

shall be punished as provided in subsection (b). 

73a 

(b)(1) Whoever violates, or attempts or conspires to 
violate, paragraphs1 (1), (2), (3), or (4) of subsection (a) 
shall be fined under this title or imprisoned not more 
than 15 years, or both, but, if such person has a prior 
conviction under this chapter [18 U.S.C.A. § 2251 et 
seq], chapter 109A [18 U.S.C.A. § 2141 et seq.], or 
chapter 117 [18 U.S.C.A. § 2421 et seq.], or under the 
laws of any State relating to aggravated sexual abuse, 
sexual abuse, or abusive sexual conduct involving a 
minor or ward, or the production, possession, receipt, 
mailing, sale, distribution, shipment, or transportation 
of child pornography, such person shall be fined under 
this title and imprisoned for not less than 5 years nor 
more than 30 years. 

(2) Whoever violates, or attempts or conspires to 
violate, subsection (a)(5) shall be fined under this title 
or imprisoned not more than 5 years, or both, but, if 
such person has a prior conviction under this chapter 
[18 U.S.C.A. § 2251 et seq], chapter 109A [18 U.S.C.A. 
§ 2141 et seq.], or chapter 117 [18 U.S.C.A. § 2421 et 
seq.], or under the laws of any State relating to aggra- 
vated sexual abuse, sexual abuse, or abusive sexual 
conduct involving a minor or ward, or the production, 
possession, receipt, mailing, sale, distribution, ship- 
ment, or transportation of child pornography, such 
person shall be fined under this title and imprisoned for 
not less than 2 years nor more than 10 years. 

(c) It shall be an affirmative defense to a charge of 
violating paragraphs1 (1), (2), (3), or (4) of subsection (a) 
that— 

1 So in original. Probably should be “paragraph”. 

1 So in original. Probably should be “paragraph”. 

74a 

(1) the alleged child pornography was produced 
using an actual person or persons engaging in 
sexually explicit conduct; 

(2) each such person was an adult at the time 
the material was produced; and 

(3) the defendant did not advertise, promote, 
present, describe, or distribute the material in such 
a manner as to convey the impression that it is or 
contains a visual depiction of a minor engaging in 
sexually explicit conduct. 

(d) AFFIRMATIVE DEFENSE.—It shall be an affirma- 
tive defense to a charge of violating subsection (a)(5) 
that the defendant— 

(1) possessed less than three images of child 
pornography; and 

(2) promptly and in good faith, and without 
retaining or allowing any person, other than a law 
enforcement agency, to access any image or copy 
thereof— 

(A) took reasonable steps to destroy each 
such image; or 

(B) reported the matter to a law 
enforcement agency and afforded that agency 
access to each such image. 

§ 2256. 

Definitions for chapter 

For the purposes of this chapter, the term— 

* * * * * 

75a 

(2) “sexually explicit conduct” means actual or 
simulated— 

(A) sexual intercourse, including genital-genital, 
oral-genital, anal-genital, or oral-anal, whether 
between persons of the same or opposite sex; 

(B) bestiality; 

(C) masturbation; 

(D) sadistic or masochistic abuse; or 

(E) lascivious exhibition of the genitals or pubic 
area of any person; 

* * * * * 

(8) “child pornography” means any visual depiction, 
including any photograph, film, video, picture, or com- 
puter or computer-generated image or picture, whether 
made or produced by electronic, mechanical, or other 
means, of sexually explicit conduct, where— 

(A) the production of such visual depiction in- 
volves the use of a minor engaging in sexually 
explicit conduct; 

(B) such visual depiction is, or appears to be, of a 
minor engaging in sexually explicit conduct; 

(C) such visual depiction has been created, 
adapted, or modified to appear that an identifiable 
minor is engaging in sexually explicit conduct; or 

(D) such visual depiction is advertised, promoted, 
presented, described, or distributed in such a man- 
ner that conveys the impression that the material is 

76a 

or contains a visual depiction of a minor engaging in 
sexually explicit conduct; and 

* * * * *