167 F.3d 61 (1st Cir. 1999), 98-1513, United States v. Hilton

Docket Nº:98-1513.
Citation:167 F.3d 61
Party Name:UNITED STATES of America, Appellant, v. David HILTON, Defendant, Appellee.
Case Date:January 27, 1999
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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167 F.3d 61 (1st Cir. 1999)

UNITED STATES of America, Appellant,


David HILTON, Defendant, Appellee.

No. 98-1513.

United States Court of Appeals, First Circuit

January 27, 1999

Rehearing and Suggestion for Rehearing En Banc Denied March 1, 1999.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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F. Mark Terison, Assistant United States Attorney, with whom Jay P. McCloskey, United States Attorney, and Gail Fisk Malone, Assistant United States Attorney, were on brief for appellant.

Peter E. Rodway for appellee.

Lisa R. Green, Michael A. Bamberger, and Sonnenschein Nath & Rosenthal, for American Booksellers Foundation For Free Expression, Freedom To Read Foundation, International Periodical Distributors Association, Periodical and Book Association of America, Inc., Publishers Marketing Association, Video Software Dealers Association, General Media Communications, Inc.; R. Bruce Rich and Jonathan Bloom for Association of American Publishers, Inc., on brief for amici curiae.

Before BOUDIN, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges.

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BOWNES, Senior Circuit Judge.

In 1996, Congress enacted the Child Pornography Prevention Act (the "CPPA"), 18 U.S.C. § 2252A, to attack the rise of computerized or "virtual" child pornography. These images may take many forms--a photograph of a real child may be scanned and replicated, an innocent picture of a child may be manipulated by computer to create a sexually-oriented photo, or a fake child (ranging from a simple cartoon character to a high-resolution image resembling a real child) can be generated wholly by computer graphics.

The law prohibits, inter alia, knowing possession of visual images depicting minors or those who "appear to be" minors engaging in sexually explicit conduct. This case presents constitutional issues of first impression in this circuit: 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.

In resolving defendant David Hilton's motion to dismiss the indictment in his favor, the United States District Court for the District of Maine answered both questions in the affirmative. The court was troubled by a perceived difficulty in determining whether a depicted person appeared to be under 18 years old and by its belief that the statute impermissibly criminalizes possession of adult pornography.

We reverse. 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.


We assess the constitutionality of the CPPA de novo. See United States v. DeLuca, 137 F.3d 24, 40 n. 19 (1st Cir.1998). In doing so, we must carefully consider fundamental constitutional norms in light of recent technological advances to determine whether Congress's objectives and the statutory scheme it has established are in accord with our constitutional design.

We begin by providing an overview of the CPPA and by considering the underlying legislative purposes of the Act. Congress enacted the CPPA to modernize federal law by enhancing its ability to combat child pornography in the cyberspace era. 1 See S.Rep. No. 104-358, at pt. I (1996) (declaring that statute addresses "problem of 'high-tech kiddie porn' "). Lawmakers wished to improve law enforcement tools to keep pace with technological improvements that have made it possible for child pornographers to use computers to "morph" or alter innocent images of actual children to create a composite image showing them in sexually explicit poses. Through readily available desktop computer programs, one can even create a realistic picture of an imaginary child engaged in sexual activity and pass off that creation as an image of a real child.

The statute's operative provisions, taken together, criminalize the reproduction, possession, sale, and distribution of child pornography. See 18 U.S.C. § 2252A(a). They also prohibit the pandering of material as child pornography by making it a crime to advertise, promote, or present material "in such a manner that it conveys the impression

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that the material is, or contains" child pornography. 18 U.S.C. § 2256(8)(D).

The statute defines child pornography as:

any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where--(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct; (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or (D) such visual depiction is advertised, promoted, 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). A "visual depiction" includes--but is not necessarily limited to--"undeveloped film and videotape, and data stored on computer disk or by electronic means which is capable of conversion into a visual image." 18 U.S.C. § 2256(5). A "minor," in turn, means "any person under the age of eighteen years." 18 U.S.C. § 2256(1). Sexually explicit conduct is described as "actual or simulated--(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same sex or opposite sex; (B) bestiality; (C) masturbation; (D) sadistic or masochistic abuse; or (E) lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. § 2256(2).

There is some overlap in the definition of child pornography--material created by manipulating an image of an "identifiable minor" 2 would typically, but not necessarily, appear to be of a minor; similarly, an image showing an actual minor would probably also "appear to be a minor." On the other hand, images of a purely fictional child might only satisfy the "appears to be a minor" test. Under the statutory framework established by Congress, a defendant charged with unlawful distribution or sale would be entitled to a complete defense by showing that the person depicted actually was an adult (provided that the material was not promoted or presented to give the impression that it depicts an actual minor). See 18 U.S.C. § 2252A(c). The affirmative defense is not made available, however, to those charged with unlawful possession of child pornography. 3

Congress broadened the scope of federal anti-child pornography statutes to address a set of related concerns aimed at the ultimate goal of destroying the underground supply of child pornography in all of its manifestations. First, the legislature desired to reduce the sheer volume of computerized child pornography that could be used by child molesters and pedophiles to "stimulate or whet their own sexual appetites." S. Rep. 104-358, at pt. IV(B).

Second, Congress sought to ban computer-generated images that are "virtually indistinguishable" from those of real children, but are made without live children. Id. These images can be created with very little expense, and often are bought, sold, or traded in the same manner as images created through the use of real children. They can be downloaded from Internet sites, viewed on computer screens, or stored on hard drives or floppy disks for later use. Until now, such materials were largely beyond the reach of federal law, which had focused on representations of actual minors.

Third, the new law was designed to protect the privacy of actual children whose innocuous

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images are altered to create sexually explicit pictures. Lawmakers hoped to deter the creation of such invasive material and encourage the destruction of that which currently exists. See id. at § 2(7).

Fourth, Congress wished to deprive child abusers of a "criminal tool" frequently used to facilitate the sexual abuse of children. After hearing from an array of experts, Congress specifically found that virtual pornography created without the involvement of real minors (often via computer technology alone) is increasingly used by pedophiles and child molesters to seduce or entice children into participating in sexual activity by breaking down their natural inhibitions. Congress determined that "a child who is reluctant to engage in sexual activity with an adult, or to pose for sexually explicit photographs, can sometimes be convinced by viewing depictions of other children 'having fun' participating in such activity." Id. at § 2(3). This material is routinely used to instruct children how to perform certain sexual acts. Images made by manipulating an innocent picture of a real child to show sexual conduct can also be used to blackmail that child into submitting to abuse and remaining in fearful silence about it. Congress deemed the threat of these forms of physical and emotional abuse to be as grave as when images of real children are used, for a child shown a computer-generated image cannot be expected to know whether the child portrayed in an image is that of a real child or merely a fanciful creation.


We recount the relatively short history of this case. On December 17, 1997, a federal grand jury indicted Hilton for criminal possession of computer disks containing three or more images of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Well before trial, Hilton moved to dismiss the indictment, mounting solely a facial attack on the CPPA. He argued that the statute, by its terms, was unconstitutionally vague and overbroad, and therefore unenforceable.

On March 26, 1998, the United States District Court...

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