From: Declan McCullagh <declan@well.com>
Date: Fri, 15 Aug 1997 05:53:57 +0800
To: cypherpunks@toad.com
Subject: "Morphed" child porn case ruling text (FSC v. Reno)
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[My report is at: http://pathfinder.com/netly/opinion/0,1042,1287,00.html
--Declan]



               UNITED STATES DISTRICT COURT
             NORTHERN DISTRICT OF CALIFORNIA
 

THE FREE SPEECH COALITION, et al.,
Plaintiffs,

v.

JANET RENO, et al.,
Defendants.
 

No. C 97-0281 SC
ORDER RE MOTIONS FOR SUMMARY JUDGMENT

FILED AUG 12 1997, Richard W. Wieking, Clerk, U.S. District Court,
Northern District of California


I. INTRODUCTION

Plaintiffs in this action consist of a trade
association that defends First Amendment rights
against censorship, the publisher of a book "dedicated
to the education and expression of the ideals and
philosophy associated with nudism," and individual
artists whose works include nude and erotic
photographs and paintings. Plaintiffs have filed a
pre-enforcement challenge to the constitutionality of
certain provisions of the Child Pornography Prevention
Act of 1996 ("CPPA"), alleging that they are vague,
overbroad, and constitute impermissible
content-specific regulations and prior restraints on
free speech. Both plaintiffs and defendants have moved
for summary judgment.

II. BACKGROUND

Congress has passed several laws(1) in an ongoing
attempt to combat child pornography, the market that
such pornography has created and maintained, and the
harms that such pornography wreaks on children's
physical, psychological, emotional, and mental health.
S. Rep. No. 104-358, at 8 (1996) ("Sen. Rep."). The
most recent of these laws was passed in 1996, and was
enacted specifically to combat the use of computer
technology to produce pornography that conveys the
impression that children were used in the photographs
or images. In passing the legislation, Congress
recognized that the dangers of child pornography are
not limited to its effect on the children actually
used in the pornography. Additionally, child
pornography "stimulates the sexual appetites and
encourages the activities of child molesters and
pedophiles, who use it to feed their sexual
fantasies." Sen. Rep. At 12. Child pornography is also
used by child molesters and pedophiles "as a device to
break down the resistance and inhibitions of their
victims or targets of molestation, especially when
these are children." Id. at 13. "A child who may be
reluctant to engage in sexual activity with an adult,
or to pose for sexually explicit photos, can sometimes
be persuaded to do so by viewing depictions of other
children participating in such activity." Id.

Congress recognized that computer technology is
capable of "alter[ing] perfectly innocent pictures of
children. . . to create visual depictions of those
children engaging in any imaginable form of sexual
conduct." Id. at 15. These computer-generated pictures
are often indistinguishable from photographic images
of actual children. "Computer generated images which
appear to depict minors engaging in sexually explicit
conduct are just as dangerous to the well-being of. .
. children as material using actual children." Id. at
19. Thus, Congress passed the 1996 Act in order to
prevent the effects that such computer-generated
images might have, even if no children were actually
used in the creation of the images.  

Specifically, the CPPA 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
such 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).

The CPPA goes on the define "sexually explicit
conduct" as actual or simulated:

(A) sexual intercourse, including genital-genital,
oral-genital, anal-genital, or oral-anal, whether
between persons of the same 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).

The CPPA also provides an affirmative defense for
violations of the Act if:  

(1) the alleged child pornography was produced using
an actual person or persons engaging in sexually
explicit conduct; (2) each such person was an adult at
the time the material was produced; and (3) the
defendant did not advertise, promote, present,
describe, or distribute the material in such a manner
as to convey the impression that it is or contains a
visual depiction of a minor engaging in sexually
explicit conduct.

18 U.S.C. 2252A(c).

Plaintiffs contend that the CPPA "sweeps within its
purview materials that involve no actual children and
that traditionally and logically have never been
considered to be child pornography." Pls.' Mem in
Supp. Of Mot. For Summ. Judg. at 3. They argue that
the CPPA, by prohibiting images that appear to be of
children, actually criminalizes the production and
sale of legitimate works that include images that look
like children, but that in reality were made using
adults, not children. They allege that the CPPA's "use
of overbroad and vague language criminalizes forms of
expression in violation of the First and Fifth
Amendments." Pls.' Mem. in Supp. of Mot. for Summ.
Judg. at 4.

III. LEGAL ANALYSIS

A. Standing

Defendants first argue that plaintiffs do not have
standing to bring a claim in this Court, as they have
not suffered "actual or threatened injury as a result
of the putatively illegal conduct of the defendant."
Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464,
472 (1982). Defendants contend that plaintiffs'
activities fall squarely within the affirmative
defense set out in 18 U.S.C. 2252A(c), as plaintiffs
have admitted that their works involve the depiction
only of non-minors(2) and that they do not market
their works as child pornography.(3)

Plaintiffs counter that they have indeed been injured
by the CPPA, as plaintiffs have, in some cases,
discontinued the production, distribution, and
possession of the certain materials for fear of
prosecution under the CPPA. The CPPA, therefore, has
had a chilling effect on their speech which is
sufficient to constitute standing. See, e.g., San
Diego County Gun Rights Committee v. Reno, 98 F.3d
1121, 1129 (9th Cir. 1996)(holding that a chilling
effect on speech is a sufficient basis to establish
standing in overbreadth facial challenges to
government actions involving free speech); Stoianoff
v. Montana, 695 F.2d 1214, 1223 (9th Cir. 1983).

Furthermore, plaintiffs contend that they have
standing to bring their suit because the affirmative
defense set out in 18 U.S.C. 2252A(c) does not protect
consumers and distributors who possess the potentially
illegal materials but who are not involved in the
production of sexually explicit materials, and who
therefore have no way of knowing whether or not the
persons depicted are real and are not minors.
Plaintiffs have set forth affidavits of businesses and
individuals engaged in distributing, selling, or
renting sexually explicit materials who have withheld
or stopped distributing certain of plaintiffs'
products that plaintiffs argue should fit within the
statutory defense, out of fear that they will be
prosecuted under the CPPA for possession of the
materials. Plaintiffs are no longer marketing or
sending those products to its distributors. See
Virginia v. Am. Booksellers Ass'n., Inc., 484 U.S.
383, 393 (1988)(harm resulting from speech regulation
may be one of self-censorship).

The Court finds that plaintiffs' allegations are
sufficient to establish the requisite standing to
bring their claims before the Court.

B. Standard of Review

In evaluating the constitutionality of legislation
that infringes free speech under the First Amendment,
the Supreme Court has identified the appropriate
criteria by which the language of the act and the
purposes underlying the passage of the act shall be
judged. "[T]he government may impose reasonable
restrictions on the time, place, or manner of
protected speech, provided the restrictions are
justified without reference to the content of the
regulated speech, that they are narrowly tailored to
serve a significant governmental interest, and that
they leave open ample alternative channels for
communication of the information." Ward v. Rock
Against Racism, 491 U.S. 781, 791, reh'g denied, 492
U.S. 937 (1989)(internal quotations omitted).

In order to determine whether a regulation is
content-neutral, "the principal inquiry. . . is
whether the government has adopted a regulation of
speech because of disagreement with the message it
conveys." Id. A "regulation that serves purposes
unrelated to the content of expression is deemed
neutral, even if it has an incidental effect on some
speakers or messages but not others." Id.; see also
City of Renton v. Playtime Theaters, Inc., 475 U.S.
41, 47-48, reh'g denied 475 U.S. 1132 (1986)(upholding
ordinance prohibiting adult motion picture theaters
within 1,000 feet of residential zones, churches,
parks, or schools on basis that regulation was
content-neutral because it was aimed at the secondary
effects of such theaters on the surrounding
community). If it can be shown that the regulation is
justified without reference to the content of the
speech, then it is deemed content-neutral. Renton, 475
U.S. at 48.

The contested provisions of the CPPA are
content-neutral regulations. They have clearly been
passed in order to prevent the secondary effects of
the child pornography industry, including the
exploitation and degradation of children and the
encouragement of pedophilia and molestation of
children. Furthermore, the Supreme Court has afforded
"greater leeway" to regulations of child pornography.
New York v. Ferber, 458 U.S. 747, 756 (1982). The
Supreme Court has "sustained legislation aimed at
protecting the physical and well-being of youth even
when the laws have operated in the sensitive area of
constitutionally protected rights." Id. at 757. Given
the nature of the evils that anti-child pornography
laws are intended to prevent, the CPPA can easily be
deemed a content-neutral regulation. For even if no
children are involved in the production of sexually
explicit materials, the devastating secondary effect
that such materials have on society and the well-being
of children merits the regulation of such images.

Plaintiffs' contention that the CPPA is
content-specific is unpersuasive. They claim that the
terms of the CPPA clearly target materials that convey
certain ideas to their viewers. The Court finds that
the CPPA is designed to counteract the effect that
such materials has on its viewers, on children, and to
society as a whole, and is not intended to regulate or
outlaw the ideas themselves. If child pornography is
targeted by the regulation, it is due to the effect of
the pornography on innocent children, not to the
nature of the materials themselves, especially if that
pornography contains computer-generated images of
children. See, e.g., Am. Library Ass'n v. Reno, 33
F.3d 78, 86 (D.C. Cir. 1994)(legislation requiring
producers of sexually explicit material to document
the names and ages of the persons portrayed was
content-neutral, as it was intended "not to regulate
the content of sexually explicit materials, but to
protect children by deterring the production and
distribution of child pornography"); Chesapeake B&M
Inc., v. Hartford County, 58 F.3d 1005, 1010 (4th
Cir.), cert denied, 116 S.Ct. 567 (1995).

According to the Supreme Court, "[a] content-neutral
regulation will be sustained under the First Amendment
if it advances important governmental interests
unrelated to the suppression of free speech and does
not burden substantially more speech than necessary to
further those interests." Turner Broadcasting Sys.,
Inc. v. Fed. Communications Comm'n, 117 S.Ct. 1174,
1186 (1997).

The CPPA clearly advances important and compelling
government interests: the protection of children from
the harms brought on by child pornography and the
industry that such pornography has created. It is
beyond debate that the protection of children from
sexual exploitation is an important governmental
interest; indeed, the Supreme Court has deemed the
protection of the physical and psychological
well-being of minors to be a "compelling" interest.
Ferber, 458 U.S. at 756-7; see also Sen. Rep. At 9
(There is a "compelling governmental interest [in
prohibiting] all forms of child pornography.")
Furthermore, the CPPA burdens no more speech than
necessary in order to protect children from the harms
of child pornography. As stated aforesaid, the CPPA
specifically defines "sexually explicit conduct" as
"sexual intercourse, including genital-genital,
oral-genital, anal-genital, or oral-anal, whether
between persons of the same or opposite sex;
bestiality; masturbation; sadistic or masochistic
abuse; or lascivious exhibition of the genitals or
pubic area of any person." 18 U.S.C. 2256(2). It also
defines "child pornography" as any visual depiction of
sexually explicit conduct where the production
involves the actual use of minors engaging in such
conduct, the depiction is or appears to be of a minor
engaging in such conduct, the depiction has been
created, adapted, or modified to appear that a minor
is engaging in such conduct, or the depiction is
advertised, presented or promoted in such a way as to
convey the impression that minor is engaging in such
conduct. 18 U.S.C. 2256(8). Although there may be a
degree of ambiguity in the phrase "appears to be a
minor," any ambiguity regarding whether a particular
person depicted in a particular work appears to be
over the age of eighteen can be resolved by examining
whether the work was marketed and advertised as child
pornography. Given that the goal of the CPPA is to
prevent the digital manipulation of images to create
child pornography even when no children were actually
used in the production of the material, the CPPA meets
that goal by regulating the narrowest range of
materials that might fall within the targeted category
and including an explicit definition of the prohibited
conduct. Congress certainly intended to exclude from
the CPPA's reach materials that do not involve the
actual or apparent depiction of children: "[The CPPA]
does not, and is not intended to, apply to a depiction
produced using adults engaging in sexually explicit
conduct, even where a depicted individual may appear
to be a minor." Sen. Rep. At 21.

The affirmative defense laid out in 18 U.S.C. 2252A(c)
limits even further the scope of the CPPA by removing
from the range of criminal behavior the exact type of
activity in which plaintiffs claim to engage.
Plaintiffs contend that their works do not involve
actual children, and that their works are not marketed
or advertised as works featuring sexually explicit
conduct by children. Their behavior, then, falls
squarely within the category specifically set out by
Congress as beyond the scope of the CPPA. The Court
finds that the incidental harms laid out by the
plaintiffs as support for their assertion of standing
in this action do not amount to the CPPA's regulating
"substantially more speech than necessary to further"
the goal of preventing the dangers of child
molestation and pedophilia.(4) See Pls.' Opp. to
Defs.' Mot. for Summ. Judg. at 7-8. Although the
effects of a content-neutral speech regulation may be
substantial, if they are incidental and largely
unavoidable, they will pass constitutional muster. Am.
Library Ass'n. v. Reno, 33 F.3d at 87-8. Also, "[t]he
mere assertion of some possible self-censorship
resulting from a statute is not enough to render an
antiobscenity law unconstitutional." Fort Wayne Books,
Inc. v. Indiana 489 U.S. 46, 60 (1989). The contested
provisions of the CPPA survive the intermediate
scrutiny set forth by the Supreme Court for
content-neutral regulations.

The instant case is quite similar to that which the
Supreme Court confronted in New York v. Ferber, 458
U.S. 747 (1982). In Ferber, the Court upheld a New
York statute that prohibited person from knowingly
promoting a sexual performance by a child under the
age of 16 by distributing material which depicts such
a performance. The Court concluded that the statute
did not violate the First Amendment. According to the
Court, the unprotected nature of the works involved
permitted the state to prohibit the particular
category of works from distribution, especially given
the compelling state interest in protecting children
from the harms of child pornography. 458 U.S. at 765.

The final inquiry this Court must make is whether the
regulations leave open alternative channels for
communication of the information at issue. Defendants
contend that "plaintiffs are free to communicate any
substantive message they desire, through any medium
they desire, as long as they are not depicting actual
or computer-generated children engaged in sexually
explicit conduct." Defs.' Mem. In Supp. of Mot. for
Summ. Judg. at 20. The Court finds this argument
persuasive. Because plaintiffs allege that their
materials are not produced using minor children, and
that they do not market their materials so as to
suggest that they are child pornography or to exploit
the sexual qualities of the work as child pornography,
plaintiffs should have no trouble conforming their
activities to fit within the confines of the text of
the CPPA or to escape the reach of the law altogether.

C. Overbreadth and Vagueness

Plaintiffs contend that the CPPA is unconstitutionally
overbroad and vague. First, regulations that prohibit
constitutionally protected speech as well as activity
that can legitimately be prohibited are considered to
be overbroad. Thornhill v. Alabama, 310 U.S. 88, 97
(1940). Plaintiffs base their overbreadth argument on
the assertion that the CPPA "impermissibly suppresses
material that is protected under the First Amendment"
by defining child pornography as including visual
depictions of adults that appear to be minors. Pls.'
Mem. In Supp. of Mot. for Summ. Judg. at 12. In doing
so, plaintiffs argue, the CPPA "bans a wide array of
sexually-explicit, non-obscene material that has
serious literary, artistic, political, and scientific
value." Pls.' Mem. in Supp. of Mot. for Summ. Judg. at
13. Finally, plaintiffs cite the Supreme Court's
recent ruling in Reno v. ACLU that the governmental
interest in protecting children "does not justify an
unnecessarily broad suppression of speech addressed to
adults." 1997 U.S. LEXIS 4037 at *54 (striking as
unconstitutional two provisions of the Communications
Decency Act of 1996 that prevent the transmission of
"indecent" and "patently offensive" materials over the
Internet).

The Court finds that the CPPA is not overbroad. It
specifies that only materials that do not use adults
and that appear to be child pornography, even if they
are digitally produced, are prohibited. By plaintiffs'
own admission, plaintiffs' products do not fall into
these categories and are also exempt under the CPPA's
affirmative defense provisions. It is highly unlikely
that the types of valuable works plaintiffs fear will
be outlawed under the CPPA -- depictions used by the
medical profession to treat adolescent disorders,
adaptations of sexual works like "Romeo and Juliet,"
and artistically-valued drawings and sketches of young
adults engaging in passionate behavior -- will be
treated as "criminal contraband." As long as a work
does not depict children, or what appears to be
children, engaged in sexually explicit conduct as
defined by the statute, and the work is not marketed
as child pornography or in such a way that exploits
its sexual nature as child pornography, then there is
no likelihood that the work will be prohibited by the
CPPA. The CPPA is not overbroad because it prohibits
only those works necessary to prevent the secondary
pernicious effects of child pornography from reaching
minors.

Plaintiffs contend that the CPPA is also
unconstitutionally vague because it does not give a
person of ordinary intelligence a reasonable
opportunity to know what is prohibited so that he may
act accordingly. Grayned v. City of Rockford 408 U.S.
104, 108 (1972). However, the CPPA does exactly what
the Supreme Court has required of child pornography
legislation as set out in Ferber: it must (1)
adequately define the prohibited conduct; (2) be
limited to visual depictions of children below a
specific age; and (3) suitably limit and describe the
category of forbidden "sexual conduct." 458 U.S. at
764. The CPPA clearly and specifically defines the
prohibited conduct as the depiction of children
engaged in sexually explicit conduct. It is limited to
visual depictions of minors, but simply redefines the
term "depiction" to include images of children that
were produced using computers or other artificial
means. Finally, it suitably limits and describes the
category of forbidden conduct. As long as the person
portrayed in the work is an adult, and the work is not
marketed or advertised as child pornography and does
not convey the impression that it is child
pornography, then the CPPA's affirmative defense
applies and removes the work from the scope of its
provisions. The Court finds that the CPPA is not
unconstitutionally vague, as it gives sufficient
guidance to a person of reasonable intelligence as to
what it prohibits.(5)

D. Prior Restraint

Plaintiffs contend that the CPPA imposes a prior
restraint on speech by enacting a complete ban on
material that contains sexually-explicit depictions of
adults who appear to be minors and by chilling the
expression of "artists, photographers, film makers,
publishers, and merchants" by preventing them from
disseminating such depictions. Plaintiffs also contend
that the CPPA places unbridled discretion in the hands
of government officials and deals an unnecessarily
severe punishment for an incorrect determination of
whether or not an adult appears to be a minor. The
Court agrees with defendants that the CPPA neither
completely bans depictions of adults who appear to be
minors nor punishes producers or distributors who
create works in which adults appear who might be
mistaken as minors. Indeed, the affirmative defense
laid out in 18 U.S.C. 2252A(c) clearly permits the use
of adults, even if they look like minors, as long as
the works in which they appear are not marketed as
child pornography. In addition "[n]o government
official is vested with authority to permit or deny
plaintiffs the right to produce these works, and thus
the [CPPA] imposes no unconstitutional prior restraint
on speech." Defs.' Opp. to Pls.' Mot. for Summ. Judg.
at 17-18. The CPPA represents no more of a prior
restraint on speech than the New York statute at issue
in Ferber, and the CPPA comes within the rationale of
the Supreme Court's holding in that case. Because the
CPPA does not require advance approval for production
or distribution of adult pornography that does not use
minors, and does not effect a complete ban on
constitutionally protected material, it does not
constitute an improper prior restraint on speech.

IV. CONCLUSION

Therefore, this court finds that the CPPA meets
constitutional standards and is therefore
constitutional as written. For the foregoing reasons,
plaintiffs' motion for summary judgment is hereby
DENIED. Defendant's motion for judgment on the
pleadings is GRANTED.

IT IS SO ORDERED.

Dated: August 12, 1997.

/s/ Samuel Conti United States District Judge      


---


1 See Am. Library Ass'n v. Barr 956 F.2d 1178, 1181-85
(D.C. Cir. 1992) for a discussion of the history of
national anti-child pornography legislation.

2 Pls.' Opp. to Defs.' Mot. for Summ. Judg. at 1.

3 Defendants also contend that plaintiffs lack
standing because, in their complaint, plaintiffs
allege that they do not produce the type of
"hard-core" sexual images that would be subject to
regulation by the CPPA. As a result, defendants argue,
plaintiffs cannot demonstrate a real and immediate
threat of injury and therefore cannot bring this
claim. See Barr, 956 F.2d at 1187. The Court rejects
this argument. The parameters of pornography are
difficult to define, and dismissing plaintiffs' claims
for lack of standing is not appropriate in this case,
given the variety of the plaintiffs' products.

4 These incidental harms include the depiction of
images created within the imagination of the artist.
If the images depicted are of children, albeit
imaginary ones, and not of actual adults or imaginary
people who unequivocally appear to be adults, then the
evils associated with child pornography cannot be
avoided.

5 For examples of other cases that have upheld
similarly worded child pornography statutes against
vagueness challenges, see, e.g., U.S. v. Smith, 795
F.2d 841 (9th Cir. 1986), cert. denied, 481 U.S. 1032
(1987); U.S. v. Lamb, 945 F. Supp. 441 (N.D.N.Y.
1996).    


-------------------------
Declan McCullagh
Time Inc.
The Netly News Network
Washington Correspondent
http://netlynews.com/