U.S. v. Acheson

Decision Date12 November 1999
Docket NumberNo. 98-3559,98-3559
Citation195 F.3d 645
Parties(11th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JACK ACHESON, JR., Defendant-Appellant
CourtU.S. Court of Appeals — Eleventh Circuit

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before TJOFLAT and DUBINA, Circuit Judges, and STORY*, District Judge.

STORY, District Judge:

In this case we consider the constitutionality of the Child Pornography Prevention Act of 1996 (CPPA). Defendant Acheson pled guilty to violating the Act; now he challenges his conviction asserting the CPPA is unconstitutionally vague, overbroad, and generally violates the First Amendment. The district court concluded the CPPA is constitutional. We agree and affirm Defendant's conviction as we hold the CPPA puts a reasonable person on notice of what conduct it prohibits, is not substantially overbroad, and does not run afoul of the First Amendment.

I. Background

After his arrest for violating the CPPA, Defendant Acheson pled guilty to (1) knowingly receiving visual depictions of minors engaged in sexually explicit conduct transported in interstate commerce by means of the computer, and (2) knowingly possessing material containing three or more images of child pornography. As he entered his guilty plea, Acheson reserved the right to appeal the constitutionality of the Act. This appeal of the denial of Defendant's Motion to Dismiss the superseding indictment followed.

In pleading guilty to the offenses, Acheson admitted the truthfulness of the government's proffer in which the Assistant United States Attorney told the story leading up to Defendant's arrest. These admissions form the factual basis of this case. In September 1996 the United States Customs Department, acting on a tip from German authorities, discovered that a person using the screen name Firehawk96 had downloaded computer graphic files containing child pornography. In August 1997 FBI agents received additional information that Firehawk96 had obtained more sexually explicit images of children over America On Line. After learning Firehawk96 was Acheson's screen name, officers searched his home and seized his computer. On his computer, officials found over 500 computer images of child pornography1 which Firehawk96 received between January 1996 and November 1997.

II. The CPPA

Child pornography is no new problem; its presence in cyberspace is. See United States v. Hilton, 167 F.3d 61, 65 & n.1 (1st Cir. 1999) (documenting international response to effects of technological advances on child pornography trade). Congress's first comprehensive child pornography legislation came in 1977 when it enacted the Sexual Exploitation of Children Act. Pub. L. No. 95-222, 92 Stat. 7 (1977) (codified as amended at 18 U.S.C.A. 2251-2253 (West 1984 & Supp. 1999)). Later amendments extended the statutes' scope to include the use of computers to transport, distribute, or receive child pornography. Child Protection and Obscenity Enforcement Act of 1988, Pub. L. No. 100-690, 102 Stat. 4486 (1988) (codified as amended at 18 U.S.C.A. 2252 (West 1984 & Supp. 1999)).

In further response to changing technological conditions, Congress enacted the CPPA which prohibits "virtual" child pornography-computer-altered images that are practically indistinguishable from actual photographs of minors in sexually explicit situations. In order to criminalize the possession of these images, Congress defined "child pornography" as follows:

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.A. 2256(8) (West Supp.1999).

In this case, Defendant contends the "appears to be" language renders the statute impermissibly vague, overbroad, and generally violative of the First Amendment. A brief review of the purposes behind the enactment of the CPPA helps frame our inquiry into the constitutionality of the CPPA.

In expanding the reach of federal child pornography statutes, Congress addressed several closely related concerns. Congress recognized that new "technologies make it possible to produce . . . visual depictions of what appear to be children engaging in sexually explicit conduct that are virtually indistinguishable to the unsuspecting viewer from unretouched photographic images of actual children engaging in sexually explicit conduct." CPPA, Pub. L. No. 104-208, 1(1), 110 Stat. 3009-26 (1996). Pedophiles often rely on child pornography to win over their victims. Virtual pornography is a powerful tool in pedophiles' arsenals as "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." CPPA, Pub. L. No 104-208, 1(3), 110 Stat. 3009-26 (1996).

Not only does virtual pornography serve this end as effectively as the real thing, it also whets the appetite of child molesters just as much as child pornography created through the use of real children. CPPA, Pub. L. No. 104-208, 1(8), 110 Stat. 3009-26 to 3009-27 (1996). Thus, defining child pornography in a manner which captures images that "appear to be" minors engaged in sexually explicit activity serves the two goals of the Act which are "the elimination of child pornography and the protection of children from sexual exploitation." CPPA, Pub. L. No. 104-208, 1(13), 110 Stat. at 3009-27 (1996).

III. Discussion

From the First Amendment's proclamation "Congress shall make no law . . . abridging freedom of speech" springs a vast body of law. U.S. Const. amend. I. One part of that law holds some types of speech make up "no essential part of any exposition of ideas," and thus may be freely regulated "because of their constitutionally proscribable content." See R.A.V. v. City of St. Paul, 505 U.S. 377, 383-85, 112 S.Ct. 2538, 2543-44, 120 L.Ed.2d 305 (1992) (discussing "unprotected" status of fighting words, obscenity, and libel). Child pornography is one type of unprotected speech. New York v. Ferber, 458 U.S. 747, 763, 102 S.Ct. 3348, 3357, 77 L.Ed. 1113 (1982).

A. Challenge Under General First Amendment Principles

Acheson contends the CPPA generally violates the First Amendment because it bans protected speech, but he makes no attempt to show any of the 500 or so images of children in sexually explicit situations recovered from his computer are protected speech. Accordingly, we construe his general First Amendment challenge as a facial challenge to the validity of the CPPA. In making a facial challenge to the validity of the CPPA, he "bears the burden of proving the law could never be constitutionally applied." Jacobs v. The Florida Bar, 50 F.3d 901, 906 n.20 (11th Cir. 1995).

The constitutionality of the CPPA is to be examined in the context of Congress's power to regulate child pornography. The CPPA is a content-based restriction on speech, as it is the content of an image of a minor or cyber-minor engaged in sexually explicit conduct that defines its unlawful character. See United States v. Hilton, 167 F.3d 61, 68 (1999) ("Blanket suppression of an entire type of speech is by its very nature a content-discriminating act.").

Content-based restrictions must be narrowly drawn to serve a compelling governmental interest. Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 1164, 99 L.Ed.2d 333 (1988). Notwithstanding the "risk of suppressing protected expression," Congress and the states are "entitled to greater leeway in the regulation of pornographic depictions of children." Ferber, 458 U.S. at 756, 102 S.Ct. at 3354. It is beyond question that "the prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance." Id. at 757, 102 S.Ct. at 3355. Criminalizing the possession of child pornography is justified in light of these concerns. Osborne v. Ohio, 495 U.S. 103, 111, 110 S.Ct. 1691, 1697, 109 L.Ed. 2d. 98 (1990).

As "it is well-settled that child pornography, an unprotected category of expression identified by its content, may be freely regulated," Hilton, 167 F.3d at 69, Appellant's facial challenge fails. His arguments regarding the scope and content of the statute are best analyzed under the overbreadth and vagueness doctrines.

B. Overbreadth

The overbreadth doctrine allows a litigant who would not ordinarily have standing to attack a statute's validity to raise a constitutional challenge. An overbreadth challenge is based on the statute's "possible direct and indirect burdens on speech." American Booksellers v. Webb, 919 F.2d 1493, 1499-500 (11th. Cir. 1990). The overbreadth doctrine "protects the public from the chilling effect such a statue has on protected speech; the court will strike down the statute even though in the case before the court the governmental entity enforced the statute against those engaged in unprotected activities." Nationalist Movement v. City of Cumming, 934 F.2d 1482, 1485 (11th Cir. 1991) (Tjoflat, J., dissenting).

In considering the overbreadth doctrine, we remain mindful its application is "strong medicine," and "has been employed...

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