Free Speech Coalition v. Reno, 97-16536

• Citation: 198 F.3d 1083
• Decision Date: 17 December 1999
• Docket Number: No. 97-16536,97-16536
• Parties: (9th Cir. 1999) THE FREE SPEECH COALITION, on its own behalf and on behalf of its members; BOLD TYPE, INC.; JIM GINGERICH; RON RAFFAELLI, Plaintiffs-Appellants, v. JANET RENO, Attorney General, UNITED STATES DEPARTMENT OF JUSTICE, Defendants-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1083

198 F.3d 1083 (9th Cir. 1999)

THE FREE SPEECH COALITION, on its own behalf and on behalf of its members; BOLD TYPE, INC.; JIM GINGERICH; RON RAFFAELLI, Plaintiffs-Appellants, v. JANET RENO, Attorney General, UNITED STATES DEPARTMENT OF JUSTICE, Defendants-Appellees.

No. 97-16536

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted March 10, 1998

Filed December 17, 1999

[Copyrighted Material Omitted]

COUNSEL: H. Louis Sirkin, Sirkin, Pinales, Mizibov & Schwartz, Cincinnati, Ohio, for the plaintiffs-appellants.

Jacob M. Lewis, United States Department of Justice, Washington, D.C. for the defendants-appellees.

Michael A. Bamberger, Sonnecschein Nath & Rosenthal, New York, NY, for Amicus Curiae.

Appeal from the United States District Court for the Northern District of California; Samuel Conti, District Judge, Presiding. D.C. No. CV 97-00281-SC

Before: Warren J. Ferguson and Sidney R. Thomas, Circuit Judges, and Donald W. Molloy,¹ District Judge.

Opinion by Judge MOLLOY; Dissent by Judge FERGUSON.

OPINION

MOLLOY, District Judge:

I.

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

II.

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

While we agree that the plaintiffs have standing to bring this case and that the Act is not an improper prior restraint of speech, the balance of the district court's analysis does not comport with what we believe is required by the Constitution. We find that the phrases "appears to be" a minor, and "convey[s] the impression" that the depiction portrays a minor, are vague and overbroad and thus do not meet the requirements of the First Amendment. Consequently we hold that while these two provisions of the Act do not pass constitutional muster, the balance of the Child Pornography Prevention Act is constitutional when the two phrases are stricken. Whether the statutory affirmative defense is constitutional is a question that we leave for resolution in a different case.

A.

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

The Free Speech Coalition sought declaratory and injunctive relief by a pre-enforcement challenge to certain provisions of the Child Pornography Prevention Act of 1996. The complaint was filed in the Northern District of California. Both parties moved for summary judgment. The district court determined the CPPA was constitutional and granted the government's motion for summary judgment. See The Free Speech Coalition v. Reno, No. C 97-0281 VSC, 1997 WL 487758, at *7 (N.D. Cal. Aug. 12, 1997).² At the same time it denied Free Speech's cross motion for summary judgment. See id. After the district court's adverse ruling, Free Speech appealed.

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

B.

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

1.

The original federal legislation specifically prohibiting the sexual exploitation of children has been amended several times since it was enacted as the Protection of Children Against Sexual Exploitation Act of 1977. See Pub. L. No. 95225, 92 Stat. 7 (1977) (codified as amended at 18 U.S.C. SS 2251-2253). The conduct prohibited by this law criminalized using a minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct with the knowledge that it was or would be transported in interstate or foreign commerce. See id. Visual depiction was defined as including undeveloped film. See United States v. Smith, 795 F.2d 841, 846-47 (9th Cir. 1986). The term also included reproductions of photographs or pictures. See United States v. Porter, 709 F. Supp. 770, 774 (E.D. Mich. 1989), aff'd, 895 F.2d 1415 (6th Cir. 1990) (unpublished mem.). The language of 18 U.S.C. SS 2251 and 2252 has survived overbreadth and vagueness challenges. See, e.g., United States v. Reedy, 845 F.2d 239, 241 (10th Cir. 1988).

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

2.

The Protection of Children Against Sexual Exploitation Act had its problems. According to the Final Report of the Attorney General's Commission on Pornography, only one person was convicted under the Act's production prohibition. See Attorney General's Comm'n On Pornography, Final Report 604 (1986) (hereinafter "AG Report"). As a consequence of the law's deficiencies and the Supreme Court's ruling in Ferber, Congress enacted the Child Protection Act of 1984. See Pub. L. No. 98-292, 98 Stat. 204 (1984) (codified as amended at 18 U.S.C. SS 2251-2253). The Child Protection Act did away with the earlier requirement that the prohibited material be considered obscene under Miller v. California, 413 U.S. 15 (1973), before its production, dissemination, or receipt was criminal. See id. S 4. The Child Protection Act also raised the age limit for protecting children involved in the production of sexually explicit material from sixteen years to eighteen years. See id. S 5.

When the Child Protection Act of 1984 was enacted Congress recognized that a great deal of pornographic trafficking involving children was not for profit. Thus, the 1984 law also did away with the requirement that the production or distribution of the material be for the purpose of sale. See id. SS 4, 5. The 1984 law also picked up on a key phrase from Ferber, where the Supreme Court discussed limits on the classification of child pornography, stating that the "nature of the harm to be combated requires that the state offense be limited to works that visually depict sexual conduct . . . . " Ferber, 458 U.S. at 764. Congress changed the phrase "visual or print medium" 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 clear that the depiction of children engaged in sexual activity was unlawful even if it did not meet the adult obscenity standard. See id. S 5.

3.

In 1986, Congress amended the law once again. The Child Sexual Abuse and Pornography Act of 1986, Public Law No. 99-628, S 2, 100 Stat. 3510 (1986) (codified as amended at 18 U.S.C. S 2251), banned the production and use of advertisements for child pornography. Another statutory change made wrongdoers subject to liability for personal injuries to children resulting from the production of child pornography. See Child Abuse Victims' Rights Act of 1986, Pub. L. No. 99500, 100 Stat. 1783 (1986) (codified as amended at 18 U.S.C. S 2255). By passing these Acts, Congress continued its quest to end "kiddie porn."

4.

The continuing effort to marshal a means of stopping child pornography resulted in the passage of the Child Protection and Obscenity Enforcement Act of 1988. See Pub. L. No. 100-690, 102 Stat. 4181 (1988) (codified as amended at 18 U.S.C. SS 2251A-2252). This law made...