THE FREE SPEECH v RENO, 9716536o
U.S. 9th Circuit Court of Appeals
THE FREE SPEECH v RENO
9716536o
THE FREE SPEECH COALITION, on its
own behalf and on behalf of its
members; BOLD TYPE, INC.; JIM
GINGERICH; RON RAFFAELLI, No. 97-16536
Plaintiffs-Appellants,
D.C. No.
v. CV 97-0000281-SC
JANET RENO, Attorney General, ORDER
UNITED STATES DEPARTMENT OF
JUSTICE,
Defendants-Appellees.
Filed July 24, 2000
Before: Warren J. Ferguson and Sidney R. Thomas,
Circuit Judges, and Donald W. Molloy,1 District Judge.
ORDER; Dissent by Judge Wardlaw
_________________________________________________________________
ORDER
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 suggestion for
rehearing en banc and Judge Molloy recommends rejection of
the suggestion; Judge Ferguson voted to grant the petition for
rehearing and recommended granting the suggestion for
rehearing en banc.
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 suggestion 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 decision 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 provi-
sions 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 Amend-
ment 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. Hil-
ton, 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).
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, disre-
gard 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. Fer-
ber, 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 majority 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 "evidence 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 Trafficking 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" children is real, whether or not
the pornographic images which look real (or else they would
not effectively serve their purpose) are actually computer-
generated.
Second, Congress has a compelling interest in ensuring 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. S 2256(8):
As the technology of computer-imaging progresses,
it will become increasingly difficult, if not impossi-
ble, to distinguish computer-generated from photo-
graphic depictions of child sexual activity. It will
therefore become almost impossible for the Govern-
ment to meet its burden of proving that a porno-
graphic 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. 104-358, pt. IV(B); see also Hilton , 167 F.3d at
73 ("As technology improves and access to technology
increases, efforts to eradicate the child pornography industry
could be effectively frustrated if Congress were prevented
from targeting sexually explicit material that `appears to be'
of real children."). Defendants 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 situation, the
Supreme Court held that the First Amendment did not bar the
State of New York from prohibiting the distribution of porno-
graphic images of children produced outside the state, noting
that "[i]t is often impossible to determine where such material
is produced." Ferber, 485 U.S. at 766 n.19. Just as the inabil-
ity 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 find-
ings which were based on substantial evidence of the danger
to real children of the rapidly advancing computer technol-
ogy. See S. Rep. No. 104-358, pt. IV(B); see also Turner
Broadcasting Sys. v. FCC, 520 U.S. 180, 195 (1997) (requir-
ing courts to "accord substantial deference to the predictive
judgments of Congress" in First Amendment cases).
The distinction between "actual" child pornography --
unprotected speech -- and "virtual" child pornography --
speech so highly regarded by the panel majority that it applied
the highest level of judicial 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 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 counter-
part real child pornography, is of "slight social
value" and constitutes "no essential part of the expo-
sition of ideas."
Free Speech Coalition, 198 F.3d at 1100 (Ferguson, J., dis-
senting) (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 enact-
ment, 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 inter-
est in protecting our children. It does so in the context of tech-
nology 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.
_______________________________________________________________
FOOTNOTES
1 The Honorable Donald W. Molloy, United States District Judge for the
District of Montana, sitting by designation.
1 The government was able to overcome this defense in Kimbrough only
because it located and produced the original magazine images, which pre-
dated the computer technology, from which the computer-generated
images were scanned. See S. Rep. No. 104-358, pt. IV(B).