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 

REPLY BRIEF FOR THE PETITIONERS 

SETH P. WAXMAN 

Solicitor General 

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

TABLE OF AUTHORITIES 

Cases: 

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

9, 10 

Ginzburg v. United States, 383 U.S. 463 (1966) ................. 
8 

New York v. Ferber, 458 U.S. 747 (1982) ................. 
5, 9, 10 

Osborne v. Ohio, 495 U.S. 103 (1990) .................................. 
6 

United States v. Acheson, 195 F.3d 645 (11th Cir. 
1999) ........................................................................... 
1, 3, 4, 6, 8 

United States v. Hilton, 167 F.3d 61 (1st Cir.), 
cert. denied, 528 U.S. 844 (1999) .................... 
1, 3, 6, 8, 9, 10 

United States v. Mento, 231 F.3d 912 (4th Cir. 
2000) ...................................................................... 
1, 4, 6, 8, 9, 10 

Constitution and statute: 

U.S. Const. Amend. I ............................................................... 

3, 4 

Child Pornography Prevention Act of 1996, 18 U.S.C. 
2251 et seq. ............................................................ 

1, 2, 3, 4, 5, 8 

18 U.S.C. 2251 .................................................................... 
3 

18 U.S.C. 2251 note (Supp. IV 1998) ...................... 
2, 6, 7, 9 

18 U.S.C. 2252 .................................................................... 
3 

18 U.S.C. 2252A(a)(5)(B) (Supp. IV 1998) .................... 
8, 9 

18 U.S.C. 2252A(c) (Supp. IV 1998) ............................... 
9 

18 U.S.C. 2256(8)(A) (Supp. IV 1998) ............................ 
2 

18 U.S.C. 2256(8)(B) (Supp. IV 1998) ............................ 
1 

18 U.S.C. 2256(8)(C) (Supp. IV 1998) ............................ 
2 

18 U.S.C. 2256(8)(D) (Supp. IV 1998) ............................ 
1 

18 U.S.C. 2257 .................................................................... 
10 

Miscellaneous: 

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

(I) 

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 

REPLY BRIEF FOR THE PETITIONERS 

As we explain in our petition, certiorari is warranted in 
this case because the court of appeals invalidated two 
important provisions of the Child Pornography Prevention 
Act of 1996 (CPPA), 18 U.S.C. 2251 et seq. In particular, the 
court of appeals held unconstitutional the provisions of the 
CPPA that define 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). Certiorari 
is also warranted because the court’s holding is incorrect and 
conflicts with the decisions of three other circuits, United 
States v. Hilton, 167 F.3d 61 (1st Cir.), cert. denied, 528 U.S. 
844 (1999); United States v. Acheson, 195 F.3d 645 (11th Cir. 
1999); and United States v. Mento, 231 F.3d 912 (4th Cir. 
2000). 

(1) 

2 

1. Respondents contend (Br. in Opp. 21) that the Court 
should not grant review because “the court’s ruling excised 
only two limited portions of the statute, leaving the 
remaining portions of the CPPA in full effect.” Respondents’ 
effort to downplay the significance of the court’s sweeping 
ruling ignores the central purpose of the amendments 
Congress enacted in the CPPA. 

The CPPA contains four definitions of child pornography. 
The decision below entirely invalidates two of those four 
definitions, and those definitions are the only ones that 
address the serious dangers to children posed by computer- 
generated child pornography not involving real children. 
The two invalidated definitions respond to Congress’s speci- 
fic findings that computer-generated child pornography not 
involving real children can be used just as effectively by 
pedophiles to seduce children into sexual activity and to 
incite their own abusive behavior as child pornography 
depicting real children. 18 U.S.C. 2251 note (Supp. IV 1998) 
(Findings 3, 4, 8, 9 and 10). They also respond to Congress’s 
determination that prohibitions against dissemination and 
possession of child pornography involving real children may 
soon become effectively unenforceable. S. Rep. No. 358, 
104th Cong., 2d Sess. 20 (1996). 

Respondents’ assertion (Br. in Opp. 21) that Congress’s 
purposes can be fully achieved through the two definitions 
that are unaffected by the court’s ruling is incorrect. The 
two unaffected definitions address the use of real children in 
visual depictions of sexually explicit conduct. See 18 U.S.C. 
2256(8)(A) (Supp. IV 1998) (defining child pornography as 
any visual depiction that “involves the use of a minor 
engaging in sexually explicit conduct”); 18 U.S.C. 2256(8)(C) 
(Supp. IV 1998) (defining child pornography as any visual 
depiction that “has been created, adapted, or modified to 
appear that an identifiable minor is engaging in sexually 
explicit conduct”). Those definitions either duplicate or mod- 

3 

estly expand prohibitions that existed before the enactment 
of the CPPA. See 18 U.S.C. 2251, 2252. They do nothing to 
address the dangers posed by computer-generated child 
pornography that either does not involve real children or 
that cannot be proven to involve real children. 

2. Respondents also contend (Br. in Opp. 24-26) that 
there is no “actual” conflict in the circuits on the question 
presented in this case. According to respondents, the deci- 
sions in Hilton, Acheson, and Mento contain only “dicta” on 
the constitutionality of the CPPA. Respondents are mis- 
taken. 

In Hilton, the district court dismissed an indictment 
charging the defendant with knowing possession of child 
pornography, in violation of the CPPA, on the ground that 
the “appears to be” definition in the CPPA is unconstitu- 
tionally vague and overbroad. 167 F.3d at 65, 67. The 
government appealed, and the sole questions presented were 
“whether the CPPA’s definition of child pornography is so 
overbroad as to contravene the First Amendment or so 
vague as to violate due process.” Id. at 65. The First Circuit 
squarely resolved those questions on the merits, sum- 
marizing its decision as follows: “We hold that the law, 
properly construed, survives Hilton’s facial constitutional 
challenge. It neither impinges substantially on protected 
expression nor is so vague as to offend due process.” Ibid. 

In Acheson, the defendant pleaded guilty to knowingly 
receiving and possessing child pornography, in violation of 
the CPPA, but reserved the right to appeal to challenge the 
constitutionality of the Act. 195 F.3d at 648. On appeal, the 
defendant did not contend that he was personally engaged in 
conduct protected by the First Amendment. Id. at 650. 
Instead, he argued that the CPPA’s “appears to be” 
language renders the CPPA unconstitutionally overbroad 
and vague and that the district court therefore should have 
dismissed his indictment. Id. at 650, 652. The Eleventh 

4 

Circuit entertained the defendant’s claims and rejected them 
on the merits, holding that “[t]he CPPA’s overbreadth is 
minimal when viewed in light of its plainly legitimate 
sweep,” id. at 650, and that “the CPPA defines the criminal 
offense with enough certainty to put an ordinary person on 
notice of what conduct is prohibited,” id. at 652. 

In Mento, the defendant pleaded guilty to possessing child 
pornography, in violation of the CPPA, but reserved the 
right to appeal the district court’s holding that the CPPA is 
facially constitutional. 231 F.3d at 915. The Fourth Circuit 
expressly rejected the defendant’s contention that the 
“appears to be” definition renders the CPPA uncon- 
stitutionally overbroad and vague. Id. at 921-922. It sum- 
marized its decision as follows: “We hold that the CPPA 
does not impermissibly regulate protected speech and does 
not, therefore, offend the First Amendment.” Id. at 923. 

Thus, the courts in Hilton, Acheson, and Mento all 
squarely held that the “appears to be” definition does not 
render the CPPA facially overbroad or vague. In contrast, 
the decision below invalidated the “appears to be” definition 
as unconstitutionally overbroad and vague. Pet. App. 2a. 
There is therefore a square conflict between the decisions in 
Hilton, Acheson, and Mento and the decision below. 

Respondents assert (Br. in Opp. 25-26) that the consti- 
tutional rulings in Hilton, Acheson, and Mento are dicta, 
because the defendants in those cases possessed (or at least 
did not dispute that they possessed) visual depictions of real 
children. None of those courts, however, ruled against the 
defendant on that ground. Instead, applying settled First 
Amendment principles, all three courts entertained the 
defendant’s facial challenge to the validity of the CPPA, and 
ruled against the defendant based on a determination that 
the CPPA is not facially overbroad or vague. Those con- 
stitutional rulings therefore constitute square holdings; they 
do not remotely fall into the category of dicta. 

5 

3. Finally, respondents argue (Br. in Opp. 9-20) that the 
decision below is correct. Respondents’ arguments, how- 
ever, do not demonstrate that the provisions at issue here 
are unconstitutional, much less that a conflict in the circuits 
on the constitutionality of an Act of Congress should not be 
resolved by this Court. 

a. Respondents argue (Br. in Opp. 11-12, 14) that New 
York v. Ferber, 458 U.S. 747 (1982), holds that the govern- 
ment’s compelling interest in regulating child pornography is 
limited to works involving real children. Respondents 
derive their reading of Ferber from a sentence in the opinion 
stating that the government’s interest is “limited to works 
that visually depict sexual conduct by children below a 
specified age.” 458 U.S. at 764. On its face, however, that 
sentence does not draw a distinction between pictures of real 
children and computer-generated images of participants who 
appear to be children. 

Nor does anything else in Ferber suggest that the Court 
intended to prevent Congress from addressing the serious 
dangers posed to children by computer-generated child 
pornography. In Ferber, the State asserted as its sole 
interest the prevention of psychological harm to children 
who are involved in the production of child pornography. 
Moreover, at the time of Ferber, the technology for pro- 
ducing computer-generated images that are virtually 
indistinguishable from pictures of real children had not yet 
developed. The Court in Ferber therefore had no occasion to 
decide whether the new dangers to children associated with 
computer technology could justify prohibitions like those at 
issue here. 

While Ferber did not resolve that question, its general 
framework provides strong support for the constitutionality 
of the CPPA’s prohibitions. The Court identified the com- 
pelling interest at issue in that case as the “prevention of 
sexual exploitation and abuse of children.” 458 U.S. at 757. 

6 

That interest is advanced by prohibitions against the dis- 
semination and possession of depictions that “appear to be” 
children engaged in sexually explicit conduct or that “con- 
vey[]” such an “impression.” As Congress found, pedophiles 
can use computer-generated child pornography not involving 
real children as effectively as child pornography involving 
real children to seduce children into sexual activity and to 
whet their appetites for sexual abuse. 18 U.S.C. 2251 note 
(Supp. IV 1998) (Finding 8). Moreover, advancing tech- 
nology makes it increasingly difficult, if not impossible, to 
prove that a pornographic image involves a real child. 
S. Rep. No. 358, supra, at 20. Accordingly, prohibitions 
against dissemination and possession of pornographic 
depictions that appear to be of children or that convey that 
impression may often be the only effective way to reach 
persons who disseminate or possess pornography involving 
real children. Thus, as three courts of appeals have 
concluded, the prohibitions at issue here are fully consistent 
with Ferber. See Hilton, 167 F.3d at 71-73; Acheson, 195 
F.3d at 651-652; Mento, 231 F.3d at 919-921; see also Osborne 

v. Ohio, 495 U.S. 103, 111 (1990) (one interest supporting a 
prohibition against possession of child pornography is 
preventing pedophiles from using pictures of child 
pornography to seduce children into sexual activity). 

b. Respondents also argue (Br. in Opp. 13-14) that there 
is no evidence to support Congress’s findings that prohi- 
bitions against computer-generated child pornography ad- 
vance the government’s compelling interest in preventing 
harm to children. In particular, respondents argue that 
evidence that pedophiles use child pornography to seduce 
children into sexual activity and to whet their own appetites 
for sexual abuse is insufficient to support the prohibitions at 
issue here, absent specific evidence that pedophiles use 
computer-generated images as opposed to images of real 
children to accomplish those purposes. But Congress had 

7 

evidence before it, and respondents do not dispute, that com- 
puter technology can be used to produce visual depictions 
“that are virtually indistinguishable from unretouched 
photographic images of actual children engaging in sexually 
explicit conduct.” 18 U.S.C. 2251 note (Supp. IV 1998) 
(Finding 5). Congress could rely on that evidence to con- 
clude that computer-generated images in the hands of 
pedophiles pose precisely the same dangers to children as 
pictures of real children. 18 U.S.C. 2251 note (Supp. IV 
1998) (Findings 8, 9). Indeed, it would be difficult to reach 
any other conclusion. 

For similar reasons, respondents err in contending (Br. in 
Opp. 6) that there is an insufficient evidentiary basis for 
Congress’s finding that persons who possess and disseminate 
pornographic images of real children may escape prosecution 
unless they are prosecuted under the prohibitions at issue 
here. That conclusion is also supported by Congress’s 
finding that computer-generated images can be produced 
that are virtually indistinguishable from images of real 
children. As a matter of logic, when the government’s 
evidence consists of the images themselves, a defendant will 
almost always be able to argue that there is a reasonable 
doubt concerning whether the images are of real children or 
of participants who only appear to be children. 

c. Respondents also err in contending (Br. in Opp. 14) 
that the prohibitions at issue here are not narrowly tailored. 
Those prohibitions are narrowly tailored to address the 
dangers that flow from computer-generated images of child 
pornography that are virtually indistinguishable from 
images involving real children. Respondents identify no less 
restrictive alternative that would address those dangers as 
well. 

d. Respondents argue (Br. in Opp. 15-17) that the provi- 
sions at issue here are unconstitutionally vague. According 
to respondents (id. at 16), the Act leaves a person wondering 

8 

“Appears to whom to be a minor?” That criticism is un- 
persuasive. 

First, the relevant inquiry under the “appears to be” pro- 
vision 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.” Hilton, 167 F.3d at 75; 
Acheson, 195 F.3d at 652; see also Mento, 231 F.3d at 922. In 
a large core of cases, the physical characteristics of the 
depicted participants will match the physical characteristics 
of prepubescent children. In such cases, a person can have 
no difficulty understanding that the depictions are prohi- 
bited. Second, the CPPA’s scienter requirement further 
reduces any danger that the Act will serve as a trap for the 
unwary. Unless the government can prove that the 
defendant knew that the child appeared to be under the age 
of 18, the defendant must be acquitted. Hilton, 167 F.3d at 
75 (citing 18 U.S.C. 2252A(a)(5)(B) (Supp. IV 1998)); 
Acheson, 195 F.3d at 653. Respondents’ vagueness argu- 
ment ignores both of those features of the Act. 

For similar reasons, the “conveys the impression” provi- 
sion is not unconstitutionally vague. The relevant inquiry is 
also easily understood: the question is whether a reasonable 
unsuspecting viewer would conclude from the way the 
depiction is advertised, promoted, presented, described, or 
distributed that the person depicted is under the age of 18. 
In most cases, that inquiry can be readily answered. In 
addition to the physical characteristics of the participants, 
the language used to market the depiction will help to 
establish whether the applicable standard is satisfied. Cf. 
Ginzburg v. United States, 383 U.S. 463 (1966) (holding that 
the government may prosecute a business for engaging in 
the “pandering” of sexually explicit materials). And the 
scienter requirement further narrows the prohibition to 
those who know that the material has been marketed in a 

9 

prohibited manner. 18 U.S.C. 2252A(a)(5)(B) (Supp. IV 
1998). 

e. Respondents also contend (Br. in Opp. 17-20) that the 
Act is unconstitutionally overbroad because it reaches visual 
depictions of what appear to be children engaged in sexual 
activity even when such depictions are necessary for literary 
or artistic value. That concern is misguided. The Act is 
aimed at visual depictions of children engaged in sexually 
explicit conduct. A large core of that material has no serious 
literary or artistic value. Moreover, the Act does not reach 
drawings, cartoons, sculptures, and paintings that depict 
youthful-looking persons in sexual poses. Hilton, 167 F.3d at 
72; Mento, 231 F.3d at 922. And the Act also supplies an 
affirmative defense for persons who disseminate visual 
depictions involving adults who appear to be children pro- 
vided that such material is not marketed as child pornogra- 
phy, 18 U.S.C. 2252A(c) (Supp. IV 1998). Because the Act is 
aimed at a large core of material that has no serious literary 
or artistic value, and leaves open ample opportunities for the 
creation of sexually explicit works having serious literary or 
artistic value, the Act is not substantially overbroad. 
Ferber, 458 U.S. at 773-774; Broadrick v. Oklahoma, 413 
U.S. 601, 615-616 (1973). 

Respondents argue (Br. in Opp. 18) that the Act does 
reach drawings, cartoons, sculptures, and paintings of 
youthful-looking persons in sexually explicit poses. Respon- 
dents’ expansive reading of the Act, however, is unjustified. 
As Congress’s findings demonstrate, Congress understood 
the terms “appears to be a minor” and “conveys the impres- 
sion” of a minor to refer to depictions that are virtually 
indistinguishable from unretouched photographs of real 
children. 18 U.S.C. 2251 note (Supp. IV 1998) (Finding 5). 
Drawings, cartoons, sculptures and paintings of youthful- 
looking persons engaged in sexual activity do not satisfy that 

10 

standard. The Act therefore does not cover such artistic 
works. Hilton, 167 F.3d at 72; Mento, 231 F.3d at 922. 

Respondents’ objections (Br. in Opp. 19-20) to the affirma- 
tive defense for distributors are also unpersuasive. Respon- 
dents argue (id. at 19) that the affirmative defense for dis- 
tributors does not protect artists who create sexually 
explicit images out of their imaginations. But such artists 
have the option of either (1) creating drawings, cartoons, 
sculptures or paintings, or (2) using adults as models, pro- 
vided that they do not market the depictions as child 
pornography. For similar reasons, the Act’s failure to afford 
an affirmative defense to persons who do not know how an 
image is created (ibid.) does not demonstrate substantial 
overbreadth. Such persons can distribute and possess 
drawings, cartoons, sculptures, and paintings, and distribute 
depictions that they know involve adults and are not 
marketed as child pornography. See 18 U.S.C. 2257 (re- 
quiring producers of matter containing visual depictions of 
sexually explicit conduct to create and maintain records 
pertaining to each of the performers in such depictions to 
ensure that they are not minors). 

In sum, the Act is not substantially overbroad. Whatever 
overbreadth may exist can be cured through case-by-case 
adjudication. Ferber, 458 U.S. at 774; Broadrick, 413 U.S. at 
615- 616. 

* * * * * 

For these reasons and the reasons stated in the petition, 
the petition for a writ of certiorari should be granted. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

JANUARY 2001