Appeal from the United States District Courtfor the Northern District of CaliforniaSamuel Conti, District Judge, PresidingArgued and SubmittedMarch 10, 1998--San Francisco, CaliforniaFiled December 17, 1999Before: Warren J. Ferguson and Sidney R. Thomas,Circuit Judges, and Donald W. Molloy,1 District Judge.Opinion by Judge Molloy;Dissent by Judge FergusonSUMMARY The summary, which does not constitute a part of the opinion of the court, is copyrighted C 1999 by West Group.
_____________________________Criminal Law and Procedure/Due ProcessThe court of appeals affirmed a judgment of the districtcourt in part and reversed in part. The court held that theChild Pornography Prevention Act (CPPA) is unconstitutionalto the extent that it proscribes computer images that do notinvolve the use of real children in their production or dissemi-nation.Section 2556(8) of the CPPA defines child pornography asany visual depiction, including computer images, of sexuallyexplicit conduct. Subsection (B) bans sexually explicit depic-tions that "appear to be" minors; subsection (D) prohibitsdepictions that "convey the impression" that they contain sex-ually explicit portrayals of minors.Appellant Free Speech Coalition (FSC) is a trade associa-tion of businesses involved in the production and distributionof "adult-oriented materials." FSC brought a federal declara-tory/injunctive action challenging the constitutionality of theCPPA. The complaint alleged that the statute violates the FirstAmendment because it is not content-neutral, and is unconsti-tutionally vague and overbroad where it fails to define"appears to be" and "conveys the impression." FSC alsoasserted that the statute imposes an impermissible priorrestraint on protected speech, and creates a permanent chill onprotected expression.The district court ruled that the challenged provisions of theCPPA are content-neutral regulations because the statute waspassed to prevent the secondary effects of "virtual" child por-nography, i.e., the encouragement of pedophiles and theexploitation and degradation of children. The court also deter-mined that the CPPA is not unconstitutionally vague becauseit gives sufficient guidance to a person of reasonable intelli-gence as to what it prohibits, and not overbroad because itbans only what is necessary to prevent the secondary effects.The district court found that because the CPPA does notrequire advance approval for production and distribution ofadult pornography that does not use minors and does noteffect a complete ban on constitutionally protected material,it does not constitute an improper prior restraint on speech.The district court granted summary judgment for the gov-ernment. FSC appealed.[1] When a statute restricts speech by its content, it is pre-sumptively unconstitutional. The CPPA fails both tests forsubjective neutrality: it expressly aims to curb a particular cat-egory of expression (child pornography) by singling out thattype of expression based on its content, and banning it. Blan-ket suppression of an entire type of speech is by its verynature a content-discriminating act. The CPPA is not a time,place, or manner regulation.[2] If the CPPA was to survive the constitutional inquiry,the government had to establish a compelling interest that isserved by the statute, and show that the CPPA is narrowly tai-lored to fulfill that interest.[3] The Supreme Court has required state statutes crimi-nalizing child pornography to limit the offense to works thatvisually depict explicit sexual conduct by children below aspecified age. [4] The CPPA can criminalize the use of fic-tional images that involve no human being, whether that per-son is over the statutory age and looks younger, or a fictionalperson under the prohibited age. Images that are or can beentirely the product of the mind are criminalized.[5] The statute criminalizes even those materials that do notinvolve a recognizable minor. While the government is givengreater leeway in regulating child pornography, materials ordepictions of sexual conduct that do not involve live perfor-mance or visual reproductions of live performances retainFirst Amendment protection. [6] Congress has no compellinginterest in regulating sexually explicit materials that do notcontain visual images of actual children.[7] Any victimization of children that may arise frompedophiles' sexual responses to pornography apparentlydepicting children engaging in explicit sexual activity is nota sufficiently compelling justification for the CPPA's speechrestrictions. To hold otherwise would enable the criminaliza-tion of figments of creative technology that do not involveany human victim in their creation or presentation.[8] While computer-generated images of child pornographyare repugnant, they do not involve real children, and there isno demonstrated basis to link such images with harm to realchildren. Absent this nexus, the CPPA does not withstandconstitutional scrutiny. [9] By criminalizing visual depictionsthat "appear to be" or "convey the impression" of child por-nography, even when no child is ever used or harmed by itsproduction, Congress has outlawed the type of depictions pro-tected by the First Amendment.[10] The articulated compelling state interest cannot justifythe criminal proscription when no actual children are involvedin the illicit images, either by production or depiction.Because Congress did not provide a compelling interest, itwas not necessary to address the "narrow tailoring" require-ment.[11] The CPPA's criminalizing of material that "appears tobe a minor" and "conveys the impression" that the material isa minor engaged in explicit sexual activity, is void for vague-ness. It does not give the person of ordinary intelligence a rea-sonable opportunity to know what is prohibited, and fails toprovide explicit standards for those who must apply it, withthe attendant dangers of arbitrary and discriminatory applica-tion.[12] The two phrases in question are highly subjective.There is no explicit standard as to what they mean. Thephrases provide no measure to guide an ordinarily intelligentperson about prohibited conduct, and any such person couldnot be reasonably certain about whose perspective defines theappearance of a minor, or whose impression that a minor isinvolved leads to criminal prosecution.[13] The absence of explicit definitions allows law-enforcement officials to exercise their discretion subjectively.The vagueness of the key phrases permits enforcement in anarbitrary and discriminatory fashion.[14] Although overbreadth must be substantial before thestatute involved will be invalidated on its face, such over-breadth was present in this case. On its face, the CPPA pro-hibits material that has been accorded First Amendmentprotection. That is, non-obscene sexual expression that doesnot involve actual children is protected expression under theFirst Amendment. This rule abides even when the subjectmatter is distasteful.[15] The Supreme Court has restricted the regulation ofpornographic material involving minors because of the harmcaused by its creation, not necessarily because of the conse-quences of its creation. The government's interest in prohibit-ing computer-generated child pornographic depictions is notthe same as its interest in prohibiting child pornography pro-duced by using actual children. In the latter instance theremay be harm to a child. In the former there is no harm to anactual child if no real human is used in the production of thematerial. What is left is an inconsistent effort to regulate theconsequences of abusing children to make such images, eventhough no children are used in its production. [16] TheCPPA's inclusion of constitutionally protected activity makesit overbroad.[17] Prior restraint describes administrative and judicialorders forbidding certain communications before communica-tion occurs. The CPPA penalizes speech only after it occurs.As such, it is not a prior restraint. The possibility of self-censorship and the contention that the CPPA has a chillingeffect do not amount to a prior restraint.Judge Ferguson dissented, writing that Congress providedcompelling evidence that virtual child pornography causesharm to real children, and that the challenged terms are notoverbroad or void for vagueness.
_____________________________COUNSEL H. Louis Sirkin, Sirkin, Pinales, Mizibov & Schwartz, Cincin-nati, Ohio, for the plaintiffs-appellants.Jacob M. Lewis, United States Department of Justice, Wash-ington, D.C. for the defendants-appellees.
_____________________________OPINION MOLLOY, District Judge:I.The question presented in this case is whether Congressmay constitutionally proscribe as child pornography computerimages that do not involve the use of real children in theirproduction or dissemination. We hold that the First Amend-ment prohibits Congress from enacting a statute that makescriminal the generation of images of fictitious childrenengaged in imaginary but explicit sexual conduct.II.In this case, the district court found that the Child Pornog-raphy Prevention Act of 1996 ("CPPA" or the "Act") wascontent-neutral, was not unconstitutionally vague or over-broad, and did not constitute an improper prior restraint ofspeech. The district court also found that the Child Pornogra-phy Prevention Act's affirmative defense did not impermiss-ibly shift the burden of proof to a defendant by virtue of anunconstitutional presumption.While we agree that the plaintiffs have standing to bringthis case and that the Act is not an improper prior restraint ofspeech, the balance of the district court's analysis does notcomport 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 aminor, are vague and overbroad and thus do not meet therequirements of the First Amendment. Consequently we holdthat while these two provisions of the Act do not pass consti-tutional muster, the balance of the Child Pornography Preven-tion Act is constitutional when the two phrases are stricken.Whether the statutory affirmative defense is constitutional isa 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 atrade association of businesses involved in the production anddistribution of "adult-oriented materials." Bold Type, Inc. isa publisher of a book "dedicated to the education and expres-sion of the ideals and philosophy associated with nudism;"Jim Gingerich is a New York artist whose paintings includelarge-scale nudes; and Ron Raffaelli is a professional photog-rapher whose works include nude and erotic photographs.The Free Speech Coalition sought declaratory and injunc-tive relief by a pre-enforcement challenge to certain provi-sions of the Child Pornography Prevention Act of 1996. Thecomplaint was filed in the Northern District of California.Both parties moved for summary judgment. The district courtdetermined the CPPA was constitutional and granted the gov-ernment's motion for summary judgment. See The FreeSpeech Coalition v. Reno, No. C 97-0281 VSC, 1997 WL487758, at *7 (N.D. Cal. Aug. 12, 1997).2 At the same timeit denied Free Speech's cross motion for summary judgment.See id. After the district court's adverse ruling, Free Speechappealed.In this appeal, Free Speech argues the district court wasmistaken in its determination that the legislation is contentneutral. They also argue that the district court was wrong tohold that the Act is not unconstitutionally vague. The argu-ment is that where the statute fails to define "appears to be"and "conveys the impression," it is so vague a person of ordi-nary intelligence cannot understand what is prohibited. FreeSpeech also questions the district court's holding that theaffirmative defense provided in the Act is constitutional.Finally, Free Speech appeals the lower court's determinationthat the Act does not impose a prior restraint on protectedspeech and that it does not create a permanent chill on pro-tected expression.B.Child pornography is a social concern that has evadedrepeated attempts to stamp it out. State legislatures and Con-gress have vigorously tried to investigate and enact laws toprovide a basis to prosecute those persons involved in the cre-ation, distribution, and possession of sexually explicit materi-als made by or through the exploitation of children. Ourconcern is with the most recent federal law enacted as part ofthe effort to rid society of the exploitation of children for sex-ual gratification, the Child Pornography Prevention Act of1996.1.The original federal legislation specifically prohibiting thesexual exploitation of children has been amended severaltimes since it was enacted as the Protection of ChildrenAgainst Sexual Exploitation Act of 1977. See Pub. L. No. 95-225, 92 Stat. 7 (1977) (codified as amended at 18 U.S.C.SS 2251-2253). The conduct prohibited by this law criminal-ized using a minor to engage in sexually explicit conduct forthe purpose of producing any visual depiction of such conductwith the knowledge that it was or would be transported ininterstate or foreign commerce. See id. Visual depiction wasdefined as including undeveloped film. See United States v.Smith, 795 F.2d 841, 846-47 (9th Cir. 1986). The term alsoincluded reproductions of photographs or pictures. See UnitedStates v. Porter, 709 F. Supp. 770, 774 (E.D. Mich. 1989),aff'd, 895 F.2d 1415 (6th Cir. 1990) (unpublished mem.). Thelanguage of 18 U.S.C. SS 2251 and 2252 has survived over-breadth and vagueness challenges. See, e.g., United States v.Reedy, 845 F.2d 239, 241 (10th Cir. 1988).The Protection of Children Against Sexual Exploitation Actwas enacted based upon congressional findings that child por-nography and prostitution were highly organized, highly prof-itable, and exploited countless numbers of real children in itsproduction. See New York v. Ferber,
458 U.S. 747
, 749 n.1(1982) (citing S. Rep. No. 95-438, at 5 (1977)). While the Actcriminalized the commercial production and distribution ofvisual depictions of real children under the age of sixteenengaging in sexually explicit conduct, it also extended theprohibitions of the Mann Act, 18 U.S.C. SS 2421-2424, so asto criminalize the interstate transportation of children or juve-niles for the purpose of prostitution. See Pub. L. No. 95-225,S 3, 92 Stat. 7 (1977). The Act criminalized a broad range ofsexual acts.2.The Protection of Children Against Sexual Exploitation Acthad its problems. According to the Final Report of the Attor-ney General's Commission on Pornography, only one personwas convicted under the Act's production prohibition. SeeAttorney General's Comm'n On Pornography, Final Report604 (1986) (hereinafter "AG Report"). As a consequence ofthe law's deficiencies and the Supreme Court's ruling inFerber, Congress enacted the Child Protection Act of 1984.See Pub. L. No. 98-292, 98 Stat. 204 (1984) (codified asamended at 18 U.S.C. SS 2251-2253). The Child ProtectionAct did away with the earlier requirement that the prohibitedmaterial be considered obscene under Miller v. California,
413 U.S. 15
(1973), before its production, dissemination, orreceipt was criminal. See id. S 4. The Child Protection Actalso raised the age limit for protecting children involved in theproduction of sexually explicit material from sixteen years toeighteen years. See id. S 5.When the Child Protection Act of 1984 was enacted Con-gress recognized that a great deal of pornographic traffickinginvolving children was not for profit. Thus, the 1984 law alsodid away with the requirement that the production or distribu-tion of the material be for the purpose of sale. See id. SS 4, 5.The 1984 law also picked up on a key phrase from Ferber,where the Supreme Court discussed limits on the classifica-tion of child pornography, stating that the "nature of the harmto be combated requires that the state offense be limited toworks that visually depict sexual conduct . . . . " Ferber, 458U.S. at 764. Congress changed the phrase "visual or printmedium" in the former law to the phrase "visual depiction."See Pub. L. No. 98-292, SS 3, 4, 98 Stat. 204 (1984). Finally,Congress substituted the word "lascivious" for the word"lewd" in the definition of "sexual conduct " to make it clearthat the depiction of children engaged in sexual activity wasunlawful even if it did not meet the adult obscenity standard.See id. S 5.3.In 1986, Congress amended the law once again. The ChildSexual Abuse and Pornography Act of 1986, Public Law No.99-628, S 2, 100 Stat. 3510 (1986) (codified as amended at 18U.S.C. S 2251), banned the production and use of advertise-ments for child pornography. Another statutory change madewrongdoers subject to liability for personal injuries to chil-dren resulting from the production of child pornography. SeeChild Abuse Victims' Rights Act of 1986, Pub. L. No. 99-500, 100 Stat. 1783 (1986) (codified as amended at 18 U.S.C.S 2255). By passing these Acts, Congress continued its questto end "kiddie porn."4.The continuing effort to marshal a means of stopping childpornography resulted in the passage of the Child Protectionand Obscenity Enforcement Act of 1988. See Pub. L. No.100-690, 102 Stat. 4181 (1988) (codified as amended at 18U.S.C. SS 2251A-2252). This law made it unlawful to use acomputer to transport, distribute, or receive child pornogra-phy. See id. S 7511. It also added a new section to the crimi-nal law that prohibited the buying, selling, or otherwiseobtaining of temporary custody or control of children for thepurpose of producing child pornography. See id. S 7512. Thenew law required record keeping and imposed disclosurerequirements on the producers of certain sexually explicitmatter. See id. S 7513.5.In 1990 the Supreme Court decided Osborne v. Ohio, 495U.S. 103 (1990). Osborne upheld an Ohio law that prohibitedpossessing and viewing child pornography. See 495 U.S. at111. Soon thereafter, the Child Protection Restoration andPenalties Enhancement Act of 1990 was passed. See Pub. L.No. 101-647, S 301, 104 Stat. 4789 (1990) (codified asamended at 18 U.S.C. S 2252(a)(4)). This law criminalizedthe possession of three or more pieces of child pornography.See id. S 323. Again in 1994, the federal law concerning childpornography was amended to punish the production or impor-tation of sexually explicit depictions of a minor. See Pub. L.No. 103-322, S 16001, 108 Stat. 2036 (1994) (codified asamended at 18 U.S.C. S 2259). But, as with all the predeces-sor protective laws, this statute protected real children fromexploitation. See id. The law also mandated restitution for vic-tims of child pornography. See id. S 40113.Throughout the legislative history, Congress has definedthe problem of child pornography in terms of real children.Up until 1996 the actual participation and abuse of childrenin the production or dissemination or pornography involvingminors was the sine qua non of the regulating scheme. Thelegislation tracked the decisions of the Supreme Court as wellas the swift development of technology and its nearly infinitepossibilities. The statutory odyssey was from adult pornogra-phy secured or not by the First Amendment, to child pornog-raphy permitted or not, to pseudo child pornography protectedor not, until in 1996 the law was amended to prohibit virtualchild pornography. The 1996 law, the law at issue here,changed course. The regulation direction shifted from defin-ing child pornography in terms of the harm inflicted upon realchildren to a determination that child pornography was evil inand of itself, whether it involved real children or not. Thisshift forms the basis of the constitutional challenge FreeSpeech makes here.6.The Child Pornography Prevention Act of 1996 expandedthe law to combat the use of computer technology to producepornography containing images that look like children. Thenew law sought to stifle the use of technology for evil pur-poses. This of course was a marked change in the criminalregulatory scheme. Congress had always acted to preventharm to real children. In the new law, Congress shifted theparadigm from the illegality of child pornography thatinvolved the use of real children in its creation to forbid a"visual depiction" that "is, or appears to be, of a minor engag-ing in sexually explicit conduct." See 18 U.S.C.A.S 2256(8)(B) (West Supp. 1999).The premise behind the Child Pornography Prevention Actis the asserted impact of such images on the children whomay view them. The law is also based on the notion that childpornography, real as well as virtual, increases the activities ofchild molesters and pedophiles.7.18 U.S.C. S 2256(8)3 defines child pornography as "anyvisual depiction, including any photograph, film, video, pic-ture, or computer or computer-generated image or picture,whether made or produced by electronic, mechanical, or othermeans, of sexually explicit conduct[.]" 4 At issue in this appealare the definitions contained in subsections (B) and (D) ofS 2256(8). Section 2256(8)(B) bans sexually explicit depic-tions that appear to be minors. Section 2256(8)(D) bans visualdepictions that are "advertised, promoted, presented,described or distributed in such a manner that conveys theimpression" that they contain sexually explicit depictions ofminors.Because we hold the language at issue is unconstitutional,we do not consider the challenge to the affirmative defense in18 U.S.C. S 2252A(c).5III.Standing is a question of law reviewed de novo. See Johnsv. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997).A party has standing to bring a claim before a court if theparty has suffered " `actual or threatened injury as a result ofthe putatively illegal conduct of the defendant.' " See TheFree Speech Coalition, 1997 WL 487758, at *2 (citing ValleyForge Christian College v. Americans United for Separationof Church & State, Inc.,
454 U.S. 464, 472
(1982)).The record shows the individuals and businesses withinThe Free Speech Coalition withheld or stopped distributingproducts out of fear that they would be prosecuted for suchbehavior. The district court was correct in finding the factspresented here are sufficient to confer standing. The govern-ment does not question the district court's standing decision.IV.A.A challenge to the constitutionality of a federal statute isreviewed de novo. See Crawford v. Lundgren, 96 F.3d 380,384 (9th Cir. 1996). A district court's decision to grant sum-mary judgment is reviewed de novo. See Margolis v. Ryan,140 F.3d 850, 852 (9th Cir. 1998). When the district courtupholds a restriction on speech, we conduct an independent denovo examination 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 theChild Pornography Prevention Act are content-neutral regula-tions. See The Free Speech Coalition, 1997 WL 487758, at*7. The district judge reasoned that the law was passed to pre-vent the secondary effects of the child pornography industry,specifically the exploitation and degradation of children. Seeid. The court also found that the Act addressed the need tocontrol child pornography because virtual pornography led tothe encouragement of pedophilia and the molestation of chil-dren. See id. This reasoning was based on a finding that theCPPA is intended "to counteract the effect that[real or virtualchild pornography] has on its viewers, on children, and tosociety as a whole." Id. The lower court expressly found thelegislation was not intended to regulate or outlaw the ideasthemselves. 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.May 28, 1999), the First Circuit found that the Act at issuewas content-based because it expressly aims to curb a particu-lar category of expression, child pornography, by singling outthe type of expression based on its content and then banningit. The Hilton court's determination that blanket suppressionof an entire type of speech is a content-discriminating act isa legal conclusion with which we agree. The child pornogra-phy law is at its essence founded upon content-based classifi-cation of speech.The CPPA prohibits any sexually explicit depiction that"appears to be" of a minor or that is distributed or advertisedin such a manner as to "convey the impression" that thedepiction portrays a minor. Thus, the CPPA distinguishesfavored from disfavored speech on the basis of the content ofthat speech. See Crawford, 96 F.3d at 384.Part of the rationale for the Act is the congressional deter-mination that "a major part of the threat to children posed bychild pornography is its effects on the viewers of suchmaterial[.]" S. Rep. No. 104-358, at 17 (1996). The Congresssurmised that "the effect is the same whether the child por-nography consists of photographic depictions of actual chil-dren or visual depictions produced wholly or in part bycomputer." Id. One Senator referred to the notion that"[c]omputer imaging technology has given child pornogra-phers a new way to create `synthetic' child pornographywhich is virtually indistinguishable from `traditional' childpornography." Id. at 26. This belief was then carried to itslogical content-based conclusion that " `synthetic' child por-nography which looks real to the naked eye will have thesame effect upon viewers as `traditional' child pornography."Id.The government contends the district court was right infinding that the law is content-neutral. The government arguesthat because Congress enacted the CPPA to address the sec-ondary effects of speech appearing to depict children's sexualactivity, this secondary-effects justification for the CPPAhinges upon the effect of pornography seemingly involvingchildren upon its viewers.[1] When a statute restricts speech by its content, it is pre-sumptively unconstitutional. See Crawford, 96 F.3d at 385.As the First Circuit determined in Hilton: The CPPA fails both tests for substantive neutrality: 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. Fur- thermore, 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.167 F.3d at 68-69 (footnote omitted). The CPPA is not a time,place, or manner regulation.2.[2] Under the circumstances, if the CPPA is to survive theconstitutional inquiry the government must establish a com-pelling interest that is served by the statute, and it must showthat the CPPA is narrowly tailored to fulfill that interest. SeeCrawford, 96 F.3d at 385-86.The district court found that even if no children areinvolved in the production of such materials the devastatingsecondary effect that sexually explicit materials involving theimages of children have on society, and on the well being ofchildren, merits the regulation of such images. See The FreeSpeech Coalition, 1997 WL 487758, at *4. This legislativefinding supported the lower court's finding of a compellingstate interest. See id. We believe this legal determination iswrong.There are three compelling interests put forward wheninstituting efforts to curb child pornography using images ofactual children. The first interest is that child pornographyrequires the participation of actual children in sexuallyexplicit situations to create the images. The second intereststems from the belief that dissemination of such pornographicimages may encourage more sexual abuse of children becauseit whets the appetite of pedophiles. The third interest is thatsuch images are morally and aesthetically repugnant.[3] The Supreme Court has required state statutes crimi-nalizing child pornography to limit the offense to "works thatvisually depict explicit sexual conduct by children below aspecified age." Ferber,
458 U.S. at 764
. The Ferber Courtspecifically focused on the harm to children. See 458 U.S. at758. It also found that distribution of pornographic images is"intrinsically related" to the harm suffered by child victimsbecause the images produced are a permanent record of thechild's participation, exacerbated by its dissemination. See id.at 759. The Court reasoned that the distribution network forsuch images needs to be terminated if it is to be effectivelycontrolled. See id. The Ferber Court acknowledged that "if itwere necessary for literary or artistic value, a person over thestatutory age who perhaps looked younger could be utilized."Id. at 763.[4] The language of the statute questioned here can crimi-nalize the use of fictional images that involve no humanbeing, whether that fictional person is over the statutory ageand looks younger, or indeed, a fictional person under the pro-hibited age. Images that are, or can be, entirely the product ofthe mind are criminalized. The CPPA's definition of childpornography extends to drawings or images that "appear" tobe minors or visual depictions that "convey" the impressionthat a minor is engaging in sexually explicit conduct, whetheran actual minor is involved or not. The constitutionality ofthis definition is not supported by existing case law.[5] The rationale articulated in Ferber and the constitu-tional permissibility of regulating the category of child por-nography as a separate class is not justified by considerationof the effects such images have on others, even if those effectsexist. Instead the focus of analysis is on the harm to the chil-dren actually used in the production of the materials.6 Nothingin Ferber can be said to justify the regulation of such materi-als other than the protection of the actual children used in theproduction of child pornography. The language of the statutecriminalizes even those materials that do not involve a recog-nizable minor. This shift is a significant departure fromFerber. While the government is given greater leeway in reg-ulating child pornography, materials or depictions of sexualconduct "which do not involve live performance or photo-graphic or other visual reproduction of live performances,retain[s] First Amendment protection." Ferber, 458 U.S. at765.[6] Ferber considered the possibility of simulations of sex-ually explicit acts involving non-recognizable minors andimplicitly found them to be constitutionally protected. See id.at 763. The Court also implicitly rejected the regulation ofpornography that does not involve minors. See id. Thus, thecase law demonstrates that Congress has no compelling inter-est in regulating sexually explicit materials that do not containvisual images of actual children. Furthermore, to the extentCongress' justification for the CPPA relies upon such pornog-raphy's effect on third parties--children victimized bypedophiles who consume sexually explicit depictions thatappear to involve minors--the Seventh Circuit has articulateda compelling reason for preventing such third party injuryfrom superseding First Amendment rights.In American Booksellers Ass'n, Inc. v. Hudnut , 771 F.2d323, 334 (7th Cir. 1985), aff'd,
475 U.S. 1001
(1986), theSeventh Circuit invalidated a city ordinance prohibiting por-nography that portrayed women submissively or in a degrad-ing manner. In Hudnut, an argument about the consequencesof pornography was put forth to justify the Indianapolis ordi-nance. See 771 F.2d at 328. The defendants maintained thatpornography influences attitudes, and that the ordinance wasa way to alter the socialization of men and women rather thanto vindicate community standards of offensiveness. See id. at328-29. It was argued that the ordinance would play animportant role "in reducing the tendency of men to viewwomen as sexual objects, a tendency that leads to both unac-ceptable attitudes and discrimination in the workplace andviolence away from it." Id. at 325. The Court accepted thepremise that "depictions of subordination tend to perpetuatesubordination" which in turn leads to "affront and lower payat work, insult and injury at home, and battery and rape on thestreets." Id. at 329. Even so, the Hudnut court reasoned thatpornography's role, if any, in preserving systems of sexualoppression "simply demonstrate[d] the power of pornographyas speech . . . . Pornography affects how people see the world,their fellows, and social relations." Id.As the Seventh Circuit noted, however, the unhappy effectsof pornography depend on mental intermediation. See id. Thisis particularly so when the images are not of real humanbeings, but are representations of a loathsome mind reducedto virtual reality by the technology of graphic computer art.Further, Sexual responses often are unthinking responses, and the association of sexual arousal with the subordina- tion of women therefore may have a substantial effect. But almost all cultural stimuli provoke uncon- scious responses . . . . If the fact that speech plays a role in a process of conditioning were enough to per- mit governmental regulation, that would be the end of freedom of speech.Id. at 330.[7] By the same token, any victimization of children thatmay arise from pedophiles' sexual responses to pornographyapparently depicting children engaging in explicit sexualactivity is not a sufficiently compelling justification forCPPA's speech restrictions. This is so because to hold other-wise enables the criminalization of foul figments of creativetechnology that do not involve any human victim in their cre-ation or in their presentation. Cf. Jacobson v. United States,
503 U.S. 540, 548
-49 (1992) (invalidating a federal child por-nography conviction and holding that even the compellinginterest in protecting children from sexual exploitation doesnot justify modifications in otherwise applicable rules ofcriminal procedure); United States v. X-citement Video, Inc.,
513 U.S. 64, 78
(1994) (interpreting 18 U.S.C. S 2252 torequire the prosecution to prove the defendant knew the mate-rial was produced with the use of a minor, in part because tofind otherwise would be constitutionally problematic).[8] The critical ingredient of our analysis is the relationshipbetween the dissemination of fabricated images of child por-nography and additional acts of sexual abuse. Factual studiesthat establish the link between computer-generated child por-nography and the subsequent sexual abuse of children appar-ently do not yet exist. See Ronald W. Adelman, TheConstitutionality of Congressional Efforts to Ban Computer-Generated Child Pornography: A First Amendment Assess-ment of S. 1237, 14 J. Marshall J. Computer & Info. L. 483,488, 490 (1996). The legislative justification for the proposi-tion was based upon the Final Report of the Attorney Gener-al's Commission on Pornography, a report that predates theexisting technology. See id. at 490. The Final Report empha-sized the victimization of real children by adult distribution ofthe pornographic material. The report shows that the use ofsexually explicit photos or films of actual children to lureother children played a small part in the overall probleminvolving harm to children. See id. (citing AG Report at 649-50). Thus, while such images are unquestionably morallyrepugnant, they do not involve real children nor is there ademonstrated basis to link computer-generated images withharm to real children. Absent this nexus, the law does notwithstand constitutional scrutiny.7[9] By criminalizing all visual depictions that "appear tobe" or "convey the impression" of child pornography, evenwhere no child is ever used or harmed in its production, Con-gress has outlawed the type of depictions explicitly protectedby the Supreme Court's interpretation of the First Amend-ment. Because the 1996 Act attempts to criminalize dis-avowed impulses of the mind, manifested in illicit creativeacts, we determine that censorship through the enactment ofcriminal laws intended to control an evil idea cannot satisfythe constitutional requirements of the First Amendment.Our determination is not to suggest that anyone condonesthe implicit or explicit harmful secondary effects of child por-nography. Rather it is a determination to measure the statuteby First Amendment standards articulated by the SupremeCourt. To accept the secondary effects argument as the gaugeagainst which the statute must be measured requires a remark-able shift in the First Amendment paradigm. Such a transfor-mation, how speech impacts the listener or viewer, would turnFirst Amendment jurisprudence on its head.[10] In short, we find the articulated compelling state inter-est cannot justify the criminal proscription when no actualchildren are involved in the illicit images either by productionor depiction. Because we find that Congress has not provideda compelling interest, we do not address the "narrowtailoring" requirement.3.The district court found the CPPA is not unconstitutionallyvague as it gives sufficient guidance to a person of reasonableintelligence as to what it prohibits. See The Free SpeechCoalition, 1997 WL 487758, at *6. The Hilton court scruti-nized the statute with a "skeptical eye" because the new lawimpinges on freedom of expression. See 167 F.3d at 75. Indoing so, it concluded, as the district court did here, that theCPPA was not unconstitutionally vague. See id. at 76-77. Inmaking its determination the First Circuit applied an objectivestandard to determine the meaning of the phrase,"appears tobe a minor." See id. at 75.A statute is void for vagueness if it fails to "define thecriminal offense with sufficient definiteness that ordinarypeople can understand what conduct is prohibited and in amanner that does not encourage arbitrary or discriminatoryenforcement." Kolender v. Lawson,
461 U.S. 352, 357
(1983).The requirement involves an understanding by a putativeactor about what conduct is prohibited. It is impermissible todefine a criminal offense so vaguely that an ordinary personis left guessing about what is prohibited and what is not.Notice that does not provide a meaningful understanding ofwhat conduct is prohibited is vague and unenforceable. Suchis the case with the statutory language prohibiting materialthat "appears to be" or that "conveys the impression."[11] The CPPA's criminalizing of material that "appears tobe a minor" and "convey[s] the impression" that the materialis a minor engaged in explicit sexual activity, is void forvagueness. It does not "give the person of ordinary intelli-gence a reasonable opportunity to know what is prohibited,"and it fails to provide explicit standards for those who mustapply it, "with the attendant dangers of arbitrary and discrimi-natory application." Greyned v. City of Rockford, 408 U.S.104, 108-09 (1972).[12] The two phrases in question are highly subjective.There is no explicit standard as to what the phrases mean. Thephrases provide no measure to guide an ordinarily intelligentperson about prohibited conduct and any such person couldnot be reasonably certain about whose perspective defines theappearance of a minor, or whose impression that a minor isinvolved leads to criminal prosecution.[13] In the same light, the absence of definitions for thesekey phrases in the CPPA allows law enforcement officials toexercise their discretion, subjectively, about what "appears tobe" or what "conveys the impression" of prohibited material.Thus, the vagueness of the statute's key phrases regardingcomputer images permits enforcement in an arbitrary and dis-criminatory fashion. Cf. City of Chicago v. Morales, 119 S.Ct.1849, 1862 (1999) (finding anti-loitering ordinance unconsti-tutionally vague, in part because "the `no apparent purpose'standard [used in defining `loitering'] is inherently subjec-tive" and "depends on whether some purpose is`apparent' tothe officer on the scene.").4.The district court held that the CPPA is not overbroadbecause it prohibits only those works necessary to prevent thesecondary pernicious effects of child pornography fromreaching minors. See The Free Speech Coalition , 1997 WL487758, at *6. In addition, the First Circuit reasoned that "afew possibly impermissible applications of the Act does notwarrant its condemnation[,]" and found that"[w]hatever over-breadth may exist at the edges are more appropriately curedthrough a more precise case-by-case evaluation of the facts ina given case." Hilton, 167 F.3d at 74. We do not agree.[14] Although overbreadth must "be`substantial' beforethe statute involved will be invalidated on its face[,]" Ferber,
458 U.S. at 769
, such overbreadth is present here. On its face,the CPPA prohibits material that has been accorded FirstAmendment protection. That is, non-obscene sexual expres-sion that does not involve actual children is protected expres-sion under the First Amendment. See id. at 764-65. This ruleabides even when the subject matter is distasteful.Congress may serve its legitimate purpose in protectingchildren from abuse by prohibiting pornography actuallyinvolving minors. The Senate considered the constitutionalimpediment discussed here but disagreed with the assertionthat it could not prohibit visual depictions that "appear to be"of minors engaging in sexually explicit conduct when thedepictions were produced without using actual children. SeeS. Rep. No. 104-358, at 21 (1996). The Senate reasoned thatadvances in technology distinguished the Ferber Court'sholding because in 1982 when Ferber was decided "the tech-nology to produce visual depictions of child sexual activityindistinguishable from unretouched photographs of actualchildren engaging in `live performances' did not exist." Id.[15] The danger with this analysis is that it suggests that themore realistic an imaginary creation is, the less protection itis entitled to under the First Amendment. This is not becauseof any harm caused in its creation, rather it is because of theconsequences of its purported reality. Yet, the Supreme Courthas restricted the regulation of pornographic material involv-ing minors because of the harm caused by its creation, notnecessarily because of the consequences of its creation. Thegovernment's interest in prohibiting computer-generated childpornographic depictions is not the same as its interest in pro-hibiting child pornography produced by using actual children.In the latter instance there may be direct and indirect harm toa child. In the former instance there is no harm, and there canbe none, to an actual child, if no real human is used in the pro-duction of the images. What is left then is an inconsistenteffort to regulate the evil consequences of abusing children tomake such images, even though no children are used in itsproduction.[16] As explained, the CPPA is insufficiently related to theinterest in prohibiting pornography actually involving minorsto justify its infringement of protected speech. See Village ofSchaumburg v. Citizens for a Better Env't,
444 U.S. 620
, 637-39 (1980) (village could serve its legitimate interest in pre-venting fraud by less intrusive measures than direct prohibi-tion of solicitation; concluding that village ordinance wasoverbroad, as it had insufficient relationship with protectionof public safety or residential privacy to justify interferencewith protected speech). The CPPA's inclusion of constitution-ally protected activity as well as legitimately prohibited activ-ity makes it overbroad. See Broadrick v. Oklahoma, 413 U.S.601, 612 (1973) (describing Supreme Court's findings ofoverbreadth in cases in which statutes burden protectedspeech and rights of association).5.The district court found that because the CPPA does notrequire advance approval for production or distribution ofadult pornography that does not use minors and does noteffect a complete ban on constitutionally protected material,it does not constitute an improper prior restraint on speech.See The Free Speech Coalition, 1997 WL 487758, at *7. Weagree.[17] Prior restraint describes "administrative and judicialorders forbidding certain communications" before the com-munication occurs. See Alexander v. United States, 509 U.S.544, 550 (1993). The CPPA only penalizes speech after itoccurs. As such it is not a prior restraint of speech. See id. at553-54. The possibility of self-censorship and the contentionthat the CPPA has a chilling effect do not amount to a priorrestraint. See Fort Wayne Books, Inc. v. Indiana ,
489 U.S. 46
,60 (1989).V.We hold that the language of "appears to be a minor" setforth in 18 U.S.C. S 2256(8)(B) and the language "convey[s]the impression" set forth in 18 U.S.C. S 2256(8)(D) areunconstitutionally vague and overbroad. The statute is sever-able. See Pub. L. No. 104-208, 110 Stat. 3009, S 101 (1996).The law is enforceable, except for these amendments to 18U.S.C. S 2256, S 4 of Senate Bill 1237, through the freestanding savings provisions of S 9, codified at 18 U.S.C.S 2256(9).8The judgment of the district court is AFFIRMED on thequestions of standing and prior restraint. The judgment of thedistrict court is REVERSED on the questions of the constitu-tionality of the statutory language "appears to be a minor" and"convey[s] the impression."The pending motion by Stop Prisoner Rape, to file anamicus brief in this case, is denied.The case is remanded to the district court with instructionsto enter judgment on behalf of the plaintiffs consistent withthis opinion.AFFIRMED IN PART, REVERSED AND REMANDEDIN PART.
_____________________________FERGUSON, Circuit Judge, Dissenting:The majority holds that Congress cannot regulate virtualchild pornography1 because it does not require the use ofactual children in its production. Slip Op. at 14662. Withoutthe use of actual children, the majority believes that Congressis simply attempting to regulate "evil idea[s]." Id. I disagree.Congress has provided compelling evidence that virtual childpornography causes real harm to real children. As a result,virtual child pornography should join the ranks of real childpornography as a class of speech outside the protection of theFirst Amendment. In addition, I do not believe that the statu-tory terms "appears to be" or "conveys the impression" aresubstantially overbroad or void for vagueness. Accordingly, Iwould find the Child Pornography Prevention Act of 1996("CPPA") constitutional.I.For more than two decades, Congress has been trying toeliminate the scourge of child pornography. See Slip Op. at14647-51. Each time Congress passes a law, however, childpornographers find a way around the law's prohibitions. SeeS. Rep. No. 104-358, at 26 (statement of Sen. Grassley). Thiscycle recently repeated itself and prompted Congress to enactthe CPPA.Prior to the CPPA, federal law imposed penalties on indi-viduals who produced, distributed, or possessed visual depic-tions of actual minors engaging in sexually explicit conduct.See 18 U.S.C.A. S 2252 (West Supp. 1999). Recent advancesin computer-imaging technology, however, have made thislaw ineffective for two reasons. First, purveyors of child por-nography can now produce visual depictions that appear to beactual children engaged in sexual conduct "without usingchildren" at all, "thereby placing such depictions outside thescope of federal law." 141 Cong. Rec. S13542 (daily ed. Sept.13, 1995) (remarks of Sen. Hatch). Second, even where actualchildren are used, computers can "alter sexually explicit pho-tographs, films, and videos in such a way as to make it virtu-ally impossible for prosecutors to identify individuals, or toprove that the offending material was produced using[actual]children." Id.In an effort to close these loopholes, Congress enacted theCPPA which, inter alia, bans visual depictions that "appear[ ]to be of a minor engaging in sexually explicit conduct" or thatare "advertised, promoted, presented, described, or distributedin such a manner that conveys the impression that the materialis or contains a visual depiction of a minor engaging in sexu-ally explicit conduct." 18 U.S.C.A. SS 2256(8)(B), (D) (WestSupp. 1999). Along with the CPPA, Congress included thir-teen detailed legislative findings that explain why virtual childpornography needs to be prohibited. See 18 U.S.C.A. S 2251(West Supp. 1999), Historical and Statutory Notes, Congres-sional Findings (hereinafter "Congressional Findings").Despite these detailed legislative findings, the majorityrules that Congress failed to articulate a "compelling stateinterest" to justify criminalizing virtual child pornography.Slip Op. at 14662. The majority argues that Congress cannotconstitutionally regulate virtual child pornography because itdoes not depict "actual children." Id. Once "actual children"are eliminated from the equation, the majority believes thatCongress is impermissibly trying to regulate "evil idea[s]." Id.I disagree for the following reasons.First. The majority improperly suggests that preventingharm to depicted children is the only legitimate justificationfor banning child pornography. Although this was theSupreme Court's focus in New York v. Ferber,
458 U.S. 747
(1982), the Court has subsequently indicated a willingness toconsider additional factors. See Osborne v. Ohio , 495 U.S.103, 110-11 (1990). In Osborne, the Supreme Courtaddressed the issue of whether Ohio could ban the possessionof child pornography. Id. at 108. In finding it could, the Courtrelied not only on the harm caused to the children who wereused in its production (i.e., Ferber), but also on the harm thatchildren suffer when child pornography is used to seduce orcoerce them into sexual activity. Id. at 111. Thus, in Osborne,the Court indicated that protecting children who are not actu-ally pictured in the pornographic image is a legitimate andcompelling state interest. See Id. See also United States v.Hilton, 167 F.3d 61, 70 (1st Cir.) (recognizing the SupremeCourt's "subtle, yet crucial, extension" of valid state intereststo include protecting children not actually depicted), cert.denied 120 S. Ct. 115 (1999). Under the reasoning ofOsborne, the majority had an obligation to consider justifica-tions beyond just the harm caused to the children depicted inthe image.Second. The majority ignores the fact that many of the jus-tifications Congress relied on when it passed the CPPA havealready been endorsed by the Supreme Court. For example,the Court in Osborne recognized that states have a legitimateinterest in preventing pedophiles from "us[ing ] child pornog-raphy to seduce other children into sexual activity." Osborne,
495 U.S. at 111
. Virtually parroting this justification, Con-gress enacted the CPPA after finding that "child pornographyis often used as part of a method of seducing other childreninto sexual activity; a child who is reluctant to engage in sex-ual activity with an adult, or to pose for sexually explicit pho-tographs, can sometimes be convinced by viewing depictionsof other children `having fun' participating in such activity."Congressional Findings, at 3.2 In addition, Congress foundthat when child pornography is "used as a means of seducingor breaking down a child's inhibitions," the images areequally as effective regardless of whether they are real photo-graphs or computer-generated pictures that are "virtuallyindistinguishable." Congressional Findings , at 8.3The Supreme Court has also recognized that states have alegitimate interest in destroying the child pornography mar-ket. Osborne,
495 U.S. at 110
. In enacting the CPPA, Con-gress declared that the statute would encourage people todestroy all forms of child pornography, thereby reducing themarket for the material. Congressional Findings , at 12. At thehearing before the Senate Judiciary Committee, witnesses tes-tified that persons who trade and sell images that are indistin-guishable from those of actual children engaged in sexualactivity "keep the market for child pornography thriving."Senate Hearing, at 91 (testimony of Bruce Taylor).4 This isbecause pictures that look like children engaged in sexualactivities can be exchanged for pictures that are of actual chil-dren engaged in such activities. By limiting the productionand distribution of images that appear to be of children havingsex, the CPPA helps rid the market of all child pornography.5Third. Even though Congress presented some new justifica-tions that the Supreme Court has not specifically endorsed,the majority still had an obligation to consider them as longas they advance the general goal of protecting children. Inboth Ferber and Osborne, the Court stated that "[i]t is evidentbeyond the need for elaboration that a State's interest in `safe-guarding the physical and psychological well-being of aminor' is `compelling.' " Osborne,
495 U.S. at 109
, quotingFerber,
458 U.S. at 756
-57. "A democratic society rests, forits continuance, upon the healthy, well-rounded growth ofyoung people into full maturity as citizens." Ferber, 458 U.S.at 757. Thus, the Court will generally "sustain[ ] legislationaimed at protecting the physical and emotional well-being ofchildren even when the laws . . . operate[ ] in sensitive areas."Id.The lesson from Ferber and Osborne is that legislatorsshould be given "greater leeway" when acting to protect thewell-being of children. See Id. at 756. The majority, however,ignores this principle and fails to consider any of the new jus-tifications supporting the CPPA. For example, the majorityfails to address Congress' concern that computer-imagingtechnology is making it increasingly difficult in criminal casesfor the government "to meet its burden of proving that a por-nographic image is of a real child." S. Rep. No. 104-358, at20. At a hearing before the Senate Judiciary Committee, Dep-uty Assistant Attorney General Kevin Di Gregory told thecommittee that in one federal child pornography case, thedefendant relied on advances in computer technology to arguethat the government had failed to meet its "burden of provingthat each item of the alleged child pornography did, in fact,depict an actual minor rather than an adult made to look likeone." Id. at 17, citing United States v. Kimbrough, 69 F.3d723, 733 (5th Cir. 1995), cert. denied, 116 S.Ct. 1547 (1996).Although jurors in that case rejected this argument, Congressrecognized that as computer imaging software progressed,similar arguments might undermine "the enforcement ofexisting laws against the sexual exploitation of children," S.Rep. No. 104-358, at 17, by raising "a built-in reasonabledoubt argument in every child exploitation/pornographyprosecution." Id. at 16. Congress believed that the CPPA wasnecessary to close this loophole, and therefore, the majorityshould have factored this concern into its evaluation of thecase.Fourth. The majority ignores the fact that child pornogra-phy, real or virtual, has little or no social value. See Ferber,
458 U.S. at 762
(stating that the value of child pornographyis "exceedingly modest, if not de minimis"). It is well estab-lished that "[t]he protection given to speech and press wasfashioned to assure unfettered interchange of ideas for bring-ing about the political and social changes desired by people."Roth v. United States,
354 U.S. 476, 484
(1957)."All ideashaving even the slightest redeeming social importance --unorthodox ideas, controversial ideas, even ideas hateful tothe prevailing climate of opinion -- have . . . full protection. . ." Id. The First Amendment, however, does not protect cer-tain limited categories of speech that are "utterly withoutredeeming social importance." Id. See also R.A.V. v. City ofSt. Paul,
505 U.S. 377, 382
-83 (1992) (stating that "[f]rom1791 to present . . . our society, like other free but civilizedsocieties, has permitted restrictions upon the content ofspeech in a few limited areas, which are of such slight valueas a step to truth that any benefit that may be derived fromthem is clearly outweighed by the social interest in order andmorality"). These categories include obscenity, Roth, 354U.S. at 483, libel, Beauharnais v. Illinois,
343 U.S. 250
, 266(1952), and "fighting words," Chaplinsky v. New Hampshire,
315 U.S. 568, 571
-73 (1942). Child pornography is also oneof these categories of speech. Ferber,
458 U.S. at 763
-64.Why should virtual child pornography be treated differentlythan real child pornography? Is it more valued speech? I donot think so. Both real and virtual child pornography containvisual depictions of children engaging in sexually explicitactivity. The only difference is that real child pornographyuses actual children in its production, whereas virtual childpornography does not. While this distinction is noteworthy, itdoes not somehow transform virtual child pornography intomeaningful speech. Virtual child pornography, like its coun-terpart real child pornography, is of "slight social value" andconstitutes "no essential part of the exposition of ideas." SeeChaplinsky,
315 U.S. at 572
. Therefore, the majority is wrongto accord virtual child pornography the full protection of theFirst Amendment.Fifth. The majority improperly analyzes the CPPA under astrict scrutiny approach. Slip Op. at 14655. In so doing, themajority misreads the Supreme Court's previous child por-nography decisions. These decisions indicate that the propermode of analysis is to weigh the state's interest in regulatingchild pornography against the material's limited social value.See Ferber,
458 U.S. at 756
-64; Osborne,
495 U.S. at 108
-111. The Supreme Court used this test in Ferber and foundthat "the balance of competing interests [was] clearly struckand that it [was] permissible to consider these materials aswithout the protection of the First Amendment." Id. at 764.See also Osborne,
495 U.S. at 111
(finding that the "gravityof the State's interests" outweighed Osborne's limited FirstAmendment right to possess child pornography).Virtual child pornography should be evaluated in a similarfashion. The majority should have weighed Congress' reasonsfor banning virtual child pornography against the limitedvalue of such material.6 If the majority had, it would haverealized that Congress' interests in destroying the child por-nography market and in preventing the seduction of minorsoutweigh virtual child pornography's exceedingly modestsocial value. Since the balance of competing interests tips infavor of the government, virtual child pornography shouldjoin the ranks of real child pornography as a class of speechoutside the protection of the First Amendment.II.The analysis does not end with a finding that virtual childpornography is without First Amendment protection. Statutescan be found unconstitutional if they are worded so broadlythat they "criminalize an intolerable range of constitutionallyprotected conduct." Osborne,
495 U.S. at 112
. This casefocuses on the CPPA's new definition of child pornographywhich prohibits visual depictions that "appear[ ] to be," or arepromoted or distributed "in such a manner that conveys theimpression," that they are "of a minor engaging in sexuallyexplicit conduct." 18 U.S.C.A. SS 2256(8)(B), (D) (WestSupp. 1999). The majority holds that this language is over-broad because it bans "material that has been accorded FirstAmendment protection." Slip Op. at 14664. I disagree.As a general rule, statutes should not be invalidated asoverbroad unless the overbreadth is "substantial . . . in rela-tion to the statute's plainly legitimate sweep." Broadrick v.Oklahoma,
413 U.S. 601, 615
(1973). The Court has cau-tioned that the overbreadth doctrine is "strong medicine" thatshould be employed "sparingly and only as a last resort." Id.at 613. Accordingly, a statute should not be invalidated asoverbroad "when a limiting construction has been or could beplaced on the challenged statute." Id.Appellants suggest that the "appears to be" language is sobroad that everyday artistic expressions like paintings, draw-ings, and sculptures that depict youthful looking subjects in asexual manner will be criminalized under the CPPA. How-ever, even a glancing look at the legislative history belies thisassertion. Congress enacted the CPPA to address the problemof "computer-generated" child pornography. S. Rep. No. 104-358, at 7. In the findings filed with the CPPA, Congressrepeatedly stated that the law is targeted at visual depictionsthat are "virtually indistinguishable to the unsuspectingviewer from unretouched photographic images of actual chil-dren engaging in sexually explicit conduct." CongressionalFindings, at 5, 8, 13. The Senate Judiciary Committeeexplained that the "appears to be" language was necessary tocover the "same type of photographic images already prohib-ited, 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 thatthe CPPA merely extends the existing prohibitions on "real"child pornography to a narrow class of computer-generatedpictures easily mistaken for real photographs of real children.See Congressional Findings, at 13. Therefore, I agree with theUnited States Court of Appeals for the First Circuit whichfound that "drawings, cartoons, sculptures, and paintingsdepicting youthful persons in sexually explicit poses plainlylie beyond the Act." Hilton, 167 F.3d at 72. "By definition,they would not be `virtually indistinguishable' from an imageof an actual minor." Id. "The CPPA therefore does not posea 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 con-stitutionally protected photographic images of adults in sexu-ally explicit poses. This contention, however, is also withoutmerit. The CPPA explicitly states that "[i]t shall be an affir-mative defense" to a charge of distributing, reproducing orselling child pornography that the pornography (1)"was pro-duced 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 theimpression that it is or contains visual depictions of a minorengaging in sexually explicit conduct." 18 U.S.C.A.S 2252A(c) (West Supp. 1999). The CPPA thus shields fromprosecution sexually explicit visual depictions so long as theyare produced using actual adults and "the material has notbeen pandered as child pornography." S. Rep. No. 104-358,at 10, 21. Persons -- like the appellants in this case -- whoproduce and distribute works depicting the sexual conduct ofactual adults, and do not market the depictions as if they con-tain sexual images of children, are thus explicitly protectedfrom culpability under the CPPA.While there may be other potentially impermissible appli-cations 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
. Rather than invalidate part of thestatute based on possible problems that may never occur, it isbest to deal with those situations on a case-by-cases basis. SeeFerber,
458 U.S. at 781
(Stevens, J., concurring) (noting that"[h]ypothetical rulings are inherently treacherous and prone tolead us into unforeseen errors"). Accordingly, I would findthat the CPPA is not substantially overbroad. See Hilton, 167F.3d at 71-74 (finding that the CPPA is not unconstitutionallyoverbroad); United States v. Acheson, 1999 WL 1028538, at*3-5 (11th Cir. Nov. 12, 1999) (same).III.I also disagree with the majority that the CPPA is unconsti-tutionally vague. It is well settled that a statute is not void forvagueness unless it fails to "define the criminal offense withsufficient definiteness that ordinary people can understandwhat conduct is prohibited." Kolender v. Lawson, 461 U.S.352, 357 (1983).Here, the key phrases of the CPPA are clearly defined. TheCPPA applies to visual depictions of a minor engaging in sex-ually explicit conduct. A minor is defined as "any personunder the age of eighteen years." 18 U.S.C.A.S 2256(1)(West Supp. 1999). In addition, "sexually explicit conduct" isdefined as actual or simulated "sexual intercourse . . . ; bes-tiality; masturbation; sadistic or masochistic abuse; or lascivi-ous exhibition of the genitals or pubic area." 18 U.S.C.A.S 2256(2) (West Supp. 1999). Given the detailed definition ofsexually explicit activity, it is unlikely that a person of ordi-nary intelligence would be unable to determine what activitiesare prohibited.The majority nevertheless finds fault with the CPPAbecause it believes that the terms "appears to be " and"conveys the impression" are highly subjective and could beenforced "in an arbitrary and discriminatory fashion." SlipOp. at 14663-64. Once again, I disagree. With regard to theapparent age of the depicted individuals, the government canuse the same type of objective evidence that it relied onbefore the CPPA went into effect. For example, in casesinvolving prepubescent individuals, the government can showthe jury the pictures and the jury can determine for itselfwhether 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 ofthe jury to decide whether the prepubescent girls are "minors"based upon their own "observation of the pictures"), cert.denied
498 U.S. 1024
(1991). In cases in which the depictedchildren have reached puberty, the government can call expertwitnesses to testify as to the physical development of thedepicted person, and present testimony regarding the way thecreator, distributor, or possessor labeled the disks, files, orvideos. See e.g. United States v. Robinson, 137 F.3d 652, 653(1st Cir. 1998) (noting that the pornographic photographslisted the ages of boys depicted). Thus, contrary to the majori-ty's assertion, the determination of whether an image"appears to be" or "conveys the impression " of a minorengaging in sexually explicit activity is not "highlysubjective." Instead, I agree with the First Circuit whichfound that the standard "is an objective one. " Hilton, 167 F.3dat 75. "A jury must decide, based on the totality of the cir-cumstances, whether an unsuspecting viewer would considerthe depiction to be an actual individual under the age of eigh-teen engaging in sexual activity." Id.As an additional safeguard against arbitrary prosecutions,the government must satisfy the element of scienter before itcan obtain a valid conviction under the CPPA. See 18U.S.C.A. S 2252A (West Supp. 1999). In any CPPA prosecu-tion, the government must prove beyond a reasonable doubtthat the individual "knowingly" produced, distributed, or pos-sessed sexually explicit material and that the material depictsa person who appeared to the pornographer to be under theage of eighteen. See Id. See also United States v. X-CitementVideo, Inc.,
513 U.S. 64, 78
(1994) (holding that the scienterrequirement "extends to both the sexually explicit nature ofthe material and to the age of the performers")."Thus, adefendant who honestly believes that the individual depictedin the image appears to be 18 years old or older (and isbelieved by a jury), or who can show that he knew the imagewas created by having a youthful-looking adult pose for it,must be acquitted, so long as the image was not presented ormarketed as if it contained a real minor." Hilton, 167 F.3d at75-76. Based on these safeguards, the majority's concernsabout arbitrary and discriminatory prosecutions are mis-placed. See Id. at 74-77 (finding that the CPPA is not uncon-stitutionally vague); Acheson, 1999 WL 1028538, at *6-7(same).IV.In sum, the CPPA is not, as the majority claims, an attemptto regulate "evil idea[s]." Instead, the CPPA is an importanttool in the fight against child sexual abuse. The CPPA's defi-nition of child pornography provides adequate notice of thetype of images that are prohibited and does not substantiallyencroach on protected expression. Accordingly, I would findthe CPPA constitutional.
___________________________FOOTNOTES 1 The Honorable Donald W. Molloy, United States District Judge for theDistrict of Montana, sitting by designation.2 The Opinion of the district court is not published in the Federal Supple-ment.3 18 U.S.C. S 2256(8) defines child pornography as: [A]ny 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 involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is, or appears to be, of a minor engag- ing 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 manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct . . . .4 "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 per- son.18 U.S.C.A. S 2256(2) (West Supp. 1999).5 The CPPA, 18 U.S.C. S 2252A(c), provides an affirmative defense forviolations 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 impres- sion that it is or contains a visual depiction of a minor engaging in sexually explicit conduct.6 The dissent rhetorically asks "Why should virtual child pornography betreated differently than real child pornography?" and then suggests thereis no "value" in any pornography involving children, whether it involvesreal persons or imaginary computer images. This is the critical fault in thesecondary effects analysis because it shifts the argument focus fromwhether the questioned speech or images are constitutionally protected toa focus on how the speech or image affects those who hear it or see it.7 The dissent's argument about the secondary effects justification forpermitting the statutory regulation here is not sound because it makes toomuch of dicta set forth in Osborne v. Ohio,
495 U.S. 103
(1989). In thefirst place Osborne involved real children. Protecting harm to real childrenis the point that constitutionally limits the power of Congress to ban someforms of expression.The premise of the secondary effects argument assumes that childrenwill be enticed by pedophiles to illicit sexual behavior, and consequentinjury, if they look at pictures of other kids engaged in sexually explicitconduct. Even if the pictures don't involve real kids, the "realism" of com-puter images that "appear to be" or "create the impression" of real childrencan be used by pedophiles to entice a vulnerable child into illegal sexualacts. Thus, according to the dissent, there is a justification to protect kidsfrom the harmful secondary effects of images that don't involve real peo-ple. The vulnerability argument makes no constitutional sense in light ofFerber's acknowledgment that adults who look like minors can be usedin place of minors in sexually explicit "art" or film depictions. In otherwords, if the dissent's argument is sound, it would work to bar expressionof constitutionally protected speech under Ferber. Nothing would keep thedetermined pedophile from using Ferber protected images to entice thevulnerable child into harmful sexual conduct.A similar fault lies in the dissent's reasoning regarding "drawings, car-toons, sculptures, and paintings depicting youthful persons in sexuallyexplicit poses [that] plainly lie beyond the Act," citing Hilton, 167 F.3dat 72. Children are enamored by cartoons and drawings. They are regu-larly used as a means of teaching and entertaining. Much debate existsabout the effects that cartoons and video or computer games have on vio-lent behaviors or other antisocial behaviors involving children. It isunsound to reason that cartoons cannot suggest pornographic behavior orthat cartoons could not be used to entice a vulnerable child into illicit sex-ual behavior. Cf. Fritz the Cat (1972) (X-rated cartoon movie, looselybased on Underground Comics' character by Robert Crumb, depictingcat's adventures in group sex, college radicalism, and other hazards of lifein the 1960's).Many innocent things can entice children into immoral or offensivebehavior, but that reality does not create a constitutional power in the Con-gress to regulate otherwise innocent behavior. By the dissent's reasoninga pedophile could use cartoons depicting explicit sexual conduct involvingminors to entice a child into engaging in sexually explicit behavior but thiswould "plainly lie beyond the Act." Cartoons or other images cannot beconstitutionally distinguished from other fictional images based upon thequality of the realism.The dissent wrongly suggests that our holding accords "virtual childpornography the full protection of the First Amendment." Because thestatute is severable, our holding demonstrates that if morphed computerimages are of an identifiable child, the statute is enforceable because thereis then the potential for harm to a real child.8 The Senate specifically dealt with the notion that the inclusion ofentirely computer-generated images might render the law unconstitutional.Section 9 of Senate Bill 1237, codified at 18 U.S.C.S 2256(9), was addedas 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 visualdepictions of sexually explicit conduct." 18 U.S.C.A. S 2256(9) (WestSupp. 1999). Section 9 was added because of the concern that the defini-tion of "child pornography" and its application through S 4 of the Act, thelanguage at issue here, "may be at risk of judicial invalidation insofar asit reaches images that do not depict actual minors. " S. Rep. No. 104-358,at 11 (1996).1 Computer-generated child pornography comes in many different forms.For purposes of clarity, however, I will divide it into two categories. Thefirst 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 actualor "identifiable minor." Through a technique called "morphing," a pictureof a real person is transformed into a picture of a child engaging in sexu-ally explicit activity. See S. Rep. No. 104-358, at 15-16. Although thecomputer-generated image looks real, the children depicted in the imagedo not actually exist. See Id. The picture is therefore 100% "virtual."Computer-altered child pornography, by contrast, contains the image ofan actual or "identifiable minor." This type of child pornography can becreated by scanning the photo of a child into the computer and then withthe aid of the "cut and paste" feature, attaching the child's face onto thebody 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. S 2256(9) (West Supp. 1999). Computer-altered child por-nography is banned under 18 U.S.C.A. S 2256(8)(C) (West Supp. 1999).Appellants did not challenge this provision, and therefore, it will not bediscussed here.2 The congressional findings were based in large part on testimony pre-sented to the Senate Judiciary Committee. See Child Pornography Preven-tion Act of 1995: Hearing before the Senate Judiciary Committee, 104thCong., 2d Sess. (1996) (hereinafter "Senate Hearing").3 See Senate Hearing, at 70 (statement of Bruce Taylor, Chief Counselfor the National Law Center for Children and Families) (stating that "realand apparent [child pornography] . . . are equally dangerous because bothhave . . . the same seductive effect on a child victim").4 See also Senate Hearing, at 35 (testimony of Dr. Victor Cline, Emeri-tus Professor in Psychology at the University of Utah); Id. at 20, 23, 30(testimony of Jeffrey J. Dupilka, Deputy Chief Postal Inspector for Crimi-nal Investigations).5 See Senate Hearing, at 122 (testimony of Professor Frederick Schauer,Frank Stanton Professor of the First Amendment, Kennedy School ofGovernment, Harvard University) (stating that it is "undoubtedly true" that"somewhere in this chain of computer-generated production there aregoing to be real children . . . involved").6 Scholarly writers also support using a balancing test to determinewhether virtual child pornography is "outside the protection of the FirstAmendment." See e.g. Adam J. Wasserman, Virtual.Child.Porn.Com:Defending the Constitutionality of the Criminalization of Computer-Generated Child Pornography by the Child Pornography Prevention Actof 1996 -- A Reply to Professor Burke and Other Critics, 35 Harv. J. on