US v. Kantor

• Decision Date: 06 November 1987
• Docket Number: No. CR-87-164-JSL.,CR-87-164-JSL.
• Citation: 677 F. Supp. 1421
• Court: U.S. District Court — Central District of California
• Parties: UNITED STATES of America, Plaintiff, v. Ronald Renee KANTOR, et al., Defendants.

677 F. Supp. 1421

UNITED STATES of America, Plaintiff, v. Ronald Renee KANTOR, et al., Defendants.

No. CR-87-164-JSL.

United States District Court, C.D. California.

November 6, 1987.

Ronni B. Maclaren, Los Angeles, Cal., for plaintiff.

John H. Weston, Brown, Weston & Sarno, Cathy E. Crosson, Anthony Michael Glassman, Beverly Hills, Cal., for defendants.

MEMORANDUM OPINION ON DEFENDANTS' MOTION TO DISMISS THE INDICTMENT AND GOVERNMENT'S MOTION TO EXCLUDE EVIDENCE

LETTS, District Judge.

This is a case of first impression in this Circuit. It tests the constitutional ambit of the Child Protection Act, 18 U.S.C. Section 2251 et seq. ("Section 2251(a)")¹. Section 2251(a) makes it unlawful to employ persons under the age of 18 to engage in sexually explicit conduct for the purpose of filming or photography.

This case requires a determination of the extent, if any, to which defendants' knowledge of the actual age of the performer is relevant under the statute.

The one count indictment alleges:

On or about August 2, 1984, within the Central District of California, defendants RONALD RENE KANTOR and RUPERT SEBASTIAN MACNEE employed and used a minor, namely, Traci Lords, to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, namely, a film entitled "Those Young Girls," with the defendants having reason to know that the film would be transported in interstate commerce and the film actually having been transported in interstate commerce.

At said time and place, defendant JAMES MARVIN SOUTER, JR. aided, abetted, induced and procured the commission of the offense alleged above.

Defendants have moved to dismiss the indictment. For purposes of the motion, defendants do not contest either that they caused Lords to engage in sexually explicit conduct for the purpose of filming or that Lords was 16 years old at the time.

Defendants do contend, however, that unless Section 2251(a) is construed to require proof by the government of defendants' actual knowledge that Lords was under 18, the statute violates both the first and fifth Amendments to the Constitution. Alternatively, the defendants contend, that even if proof of their knowledge that Lords was under 18 is not constitutionally required, they must at least be permitted to show that they acted on the basis of a reasonable, good faith mistake of fact concerning Lords' age. The government has responded to the latter contention with a motion in limine to prevent defendants from introducing any evidence as to the state of their knowledge or belief concerning Lords' age.

The Court has concluded that both motions must be denied.²

I. BACKGROUND

The issues in this case arise out of the Supreme Court's decision in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), and the 1984 amendments³ enacted by Congress to Section 2251 et seq. which take the Ferber decision into account.⁴ In Ferber, in considering the New York statute,⁵ the Supreme Court held that the first amendment does not limit state regulation of child pornography strictly to the regulation of materials which meet the obscenity test of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed. 2d 419 (1973).⁶ In response to Ferber, Congress amended Section 2251 et seq. to eliminate the requirement of proof that the visual depiction of a minor is obscene under the Miller test.⁷

The defendants urge that these amendments robbed Section 2251(a) of the minimum element of scienter required under both the fifth amendment and the first amendment. Defendants also argue that by virtue of its overbreadth, Section 2251(a) has a "chilling" effect which violates the first amendment, as construed in numerous Supreme Court decisions.

A. The Ferber Opinion

Because the major issues in this case arise out of Ferber, it is necessary to delineate as precisely as possible some of what the Supreme Court did and did not decide in that case.

The defendants in Ferber mounted a two-fold challenge to the constitutionality of the New York statute. First, they argued that New York did not have the power under the first amendment to prohibit the dissemination of nonobscene material depicting children engaged in sexual conduct. The Supreme Court rejected that contention⁸ and the scope of its decision in that regard is not at issue here. Second, the defendants urged that, even assuming that New York had the legislative power to prohibit the dissemination of nonobscene material depicting children engaged in sexual conduct, the state had exercised this power so broadly that the New York statute should be struck down facially under the first amendment "overbreadth doctrine."⁹ The Supreme Court also rejected this contention.¹⁰ Unlike the first contention, however, the scope and ramifications of the Ferber Court's rejection of the defendant's overbreadth argument are very much at issue here.

Although the Court in Ferber declined to hold that the New York statute was constitutionally invalid, the Court did not decide how much overbreadth would be permitted in the potential reach of a statute, before the statute would be unconstitutionally overbroad.¹¹ The four opinions by which the Supreme Court expressed its collective view make clear only that a majority of the members of the Court were able to reconcile other differences in principle on the basis of a shared view that the overbreadth of the New York statute was de minimis. Justice White, writing for the Court, expressed this view as follows:

We hold that Section 263.15 is not substantially overbroad. We consider this the paradigmatic case of a state statute whose legitimate reach dwarfs its arguably impermissible application.... While the reach of the statute is directed at the hard core of child pornography, the Court of Appeals was understandably concerned that some protected expression ... would fall prey to the statute. ... Yet we seriously doubt, and it has not been suggested, that these arguably impermissible applications of the statute amount to more than a tiny fraction of the materials within the statute's reach. Nor will we assume that the New York courts will widen the possibly invalid reach of the statute by giving an expansive construction to the proscription on "lewd exhibitions of the genitals." Under these circumstances, Section 263.15 is "not substantially overbroad and ... whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied."

Ferber, 458 U.S. at 773-74, 102 S.Ct. at 3363 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615-16, 93 S.Ct. 2908, 2917-18, 37 L.Ed.2d 2908 (1973)).

Justice O'Connor and Justices Brennan and Marshall, albeit in slightly different words, explained their refusal to apply the overbreadth doctrine in Ferber on the basis of their conclusion that the overbreadth was de minimis.¹² Justice Stevens did not dispute this conclusion, but expressed a preference for refusing to consider the issue until a case arises that presents facts as to which application of the statute is overbroad.¹³

As can be seen from the foregoing, Ferber gives very little guidance for application to specific facts as to how much overbreadth must be apparent before the overbreadth doctrine will be applied.

This Court does not believe that Ferber provides meaningful guidance as to "what more than obscenity may be prohibited by child pornography laws," as suggested by District Court Judge West in United States v. Reedy, 632 F.Supp. 1415 (W.D.Okla. 1986).¹⁴

In the view of this Court, Judge West's salutory effort in Reedy to add substance to this wide open definition of "child pornography" was not successful, primarily because it was necessarily strained. The concept of "latent offensiveness," for example, is particularly difficult. Moreover, it is difficult to imagine how a jury might go about the task of determining whether an individual picture could not appeal to the prurient interest of someone, or taken alone and devoid of any other context, did or did not have serious artistic merit. Indeed, it would seem likely that, standing alone, even the most obscene photographs, by lay standards, might be susceptible to being judged by relative artistic merit. Alternatively, a most sensitive and artistic photograph by lay standards might appeal to the prurient interests of someone.

More significantly, however, Judge West's Ferber "test" is not successful because, by focusing on the "effect of an isolated excerpt upon a particularly susceptible person"¹⁵ rather than the harm to the children from both doing the physical acts and the filming of the acts, such a test would permit legislative censorship of materials which would go far beyond the legitimate interest in protection of children.¹⁶

As previously stated,¹⁷ this Court believes that the degree of overbreadth of potential applications which the Supreme Court will be willing to countenance before applying the overbreadth doctrine depends in large part upon how much of the overbreadth extends to materials which are well outside of the bounds of pornography by common lay understanding. On this assumption, the Ferber "test" as formulated in Reedy would permit too much overbreadth if applied to all cases.

If Ferber does provide a "test," it is to be found in the following language in Justice White's opinion that the offense must be:

"limited to works that visually depict sexual conduct by children below a specified age. The category of `sexual conduct' proscribed must also be suitably limited and described."¹⁸

B. Issues not Addressed in Ferber

Before turning to the analysis of this case, it should also be noted that the Supreme Court in Ferber did not decide any issues of scienter¹⁹ or whether fifth amendment due process requires that a defense be available to an employer whose violation of the statute resulted entirely from a good faith mistake concerning the...