FREE SPEECH v RENO, U.S. 9th Circuit Court of Appeals, (97-16536) - December 1999

Appeal from the United States District Court for the Northern District of California Samuel Conti, District Judge, Presiding
Argued and Submitted March 10, 1998, San Francisco, California
Filed December 17, 1999
Before: Warren J. Ferguson and Sidney R. Thomas, Circuit Judges, and Donald W. Molloy, District Judge. Opinion by Judge Molloy; Dissent by Judge Ferguson

The court of appeals affirmed a judgment of the district court in part and reversed in part. The court held that the Child Pornography Prevention Act (CPPA) is unconstitutional to the extent that it proscribes computer images that do not involve the use of real children in their production or dissemination.

Section 2556(8) of the CPPA defines child pornography as any visual depiction, including computer images, of sexually explicit conduct. Subsection (B) bans sexually explicit depictions that "appear to be" minors; subsection (D) prohibits depictions that "convey the impression" that they contain sexually explicit portrayals of minors.

When a statute restricts speech by its content, it is presumptively unconstitutional. The CPPA fails both tests for subjective 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. The CPPA is not a time, place, or manner regulation.

The statute criminalizes even those materials that do not involve a recognizable minor. While the government is given greater leeway in regulating child pornography, materials or depictions of sexual conduct that do not involve live performance or visual reproductions of live performances retain First Amendment protection.

Congress has no compelling interest in regulating sexually explicit materials that do not contain visual images of actual children.

Any victimization of children that may arise from pedophiles’ sexual responses to pornography apparently depicting children engaging in explicit sexual activity is not a sufficiently compelling justification for the CPPA’s speech restrictions. To hold otherwise would enable the criminalization of figments of creative technology that do not involve any human victim in their creation or presentation.

While computer-generated images of child pornography are repugnant, they do not involve real children, and there is no demonstrated basis to link such images with harm to real children. Absent this nexus, the CPPA does not withstand constitutional scrutiny.

The CPPA’s criminalizing of material that "appears to be a minor" and "conveys the impression" that the material is a minor engaged in explicit sexual activity, is void for vagueness. It does not give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, and fails to provide explicit standards for those who must apply it, with the attendant dangers of arbitrary and discriminatory application.

The Supreme Court has restricted the regulation of pornographic material involving minors because of the harm caused by its creation, not necessarily because of the consequences of its creation. The government’s interest in prohibiting computer-generated child pornographic depictions is not the same as its interest in prohibiting child pornography produced by using actual children. In the latter instance there may be harm to a child. In the former there is no harm to an actual child if no real human is used in the production of the material. What is left is an inconsistent effort to regulate the consequences of abusing children to make such images, even though no children are used in its production. The CPPA’s inclusion of constitutionally protected activity makes it overbroad.


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