United States v. Mento ( 2002 )

Case vacated and remanded by
Supreme Court order filed 4/22/02
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSEPH H. MENTO, III,
Defendant-Appellant.
No. 99-4813
AMERICAN CIVIL LIBERTIES UNION;
AMERICAN CIVIL LIBERTIES
UNIONOFTHE NATIONAL CAPITOL
AREA; AMERICAN CIVIL LIBERTIES
UNION FOUNDATION,
Amici Curiae.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CR-98-70)
Argued: June 9, 2000
Decided: November 3, 2000
Before LUTTIG and KING, Circuit Judges, and
Richard L. WILLIAMS, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Luttig and Senior Judge Williams joined.
_________________________________________________________________
COUNSEL
ARGUED: Alan Royce Lee Bussard, Towson, Maryland, for Appel-
lant. Joseph Lee Evans, Assistant United States Attorney, Baltimore,
Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia, United
States Attorney, Baltimore, Maryland, for Appellee. Dwight H. Sulli-
van, AMERICAN CIVIL LIBERTIES UNION OF MARYLAND,
Baltimore, Maryland; Ann Beeson, AMERICAN CIVIL LIBERTIES
UNION FOUNDATION, New York, New York; Arthur B. Spitzer,
Stephen M. Block, AMERICAN CIVIL LIBERTIES UNION OF
THE NATIONAL CAPITAL AREA, Washington, D.C., for Amici
Curiae.
_________________________________________________________________
OPINION
KING, Circuit Judge:
Joseph H. Mento, III, was convicted in the district court of possess-
ing child pornography, in violation of 18 U.S.C.§ 2252A(a)(5)(B).
Mento entered a guilty plea to the charge, reserving the right to appeal
the lower court's determination that the statute, as amended by the
Child Pornography Protection Act of 1996 ("CPPA" or "the Act"), is
constitutional on its face. The federal courts of appeals that have con-
sidered this issue are split on its proper resolution. The First and Elev-
enth Circuits have upheld the Act against constitutional challenge, but
the Ninth Circuit has struck down the CPPA as an unlawful abridge-
ment of the free-speech guarantees secured by the First Amendment.
We conclude that the Act passes constitutional muster, and we affirm
the judgment of the court below.
I.
A.
In December 1997, the FBI received information from a confiden-
tial informant that Mento was in possession of child pornography;
federal agents thereafter obtained a warrant authorizing the search and
seizure of certain items in Mento's home. Upon execution of the war-
2
rant, Mento admitted to possessing child pornography, and he advised
the agents how to access the material on his computer. The ensuing
search of Mento's computer, external drives, and disks yielded more
than one hundred images of naked, prepubescent children in sexually
explicit situations. A number of these images depicted the children
engaged in overt sexual acts with adults and with each other. Accord-
ing to a caption accompanying the images, one of the children was
only five years old. Mento had downloaded the images from the Inter-
net.
B.
1.
Since 1977, Congress has attempted to eliminate child pornogra-
phy. See Protection of Children Against Sexual Exploitation Act of
1977, Pub. L. No. 95-225, 92 Stat. 7 (1978). In New York v. Ferber,
458 U.S. 747 (1982), the Supreme Court held that child pornography
is outside the scope of the First Amendment; thus, unlike pornogra-
phy exclusively involving adults, child pornography may be regulated
regardless of whether it would otherwise be considered obscene.1 1
In the wake of Ferber, Congress amended the federal child pornog-
raphy law to include aspects of the Court's decision. See Child Pro-
tection Act of 1984, Pub. L. No. 98-292, 98 Stat. 204 (1984).2
2 Four
years later, after an investigatory commission found the Internet to be
a popular medium for trafficking in child pornography, Congress out-
lawed the use of computers to transport, distribute, or receive such
materials. See Child Protection and Obscenity Enforcement Act of
1988, Pub. L. No. 100-690, 102 Stat. 4485 (1988). Up to this point,
most doubts as to what could constitute "child pornography" had been
resolved by Ferber.
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1 Although adult pornography is protected by the First Amendment,
obscenity is not. Miller v. California, 413 U.S. 15 (1973).
2 Among other things, the amendments replaced the word "lewd" with
"lascivious" to describe an aspect of the banned materials; substituted the
phrase "visual depiction" for "visual or print medium"; enlarged the defi-
nition of "minor" to include persons under eighteen; and brought non-
commercial pornography within the ambit of the statute.
3
Then, in 1996, the CPPA was enacted to address the entirely new
problems posed by technological advances. Congress was concerned,
inter alia, with the practice of digitally altering photographic images
to create child pornography out of innocent photos of children. See
110 Stat. 3009-26. Spurred by testimony that such material may be
used by adults to entice children into sexual behavior, id., Congress
expanded the definition of child pornography to include not only
altered pictures of identifiable children, but also depictions of what
"appear to be" minors. This latter category encompasses wholly artifi-
cial images, created without the involvement of an actual child.
Hence, the term "child pornography" now includes "any photo-
graph, film, video, picture, or computer or computer-generated image
or picture" 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 engag-
ing 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 con-
tains a visual depiction of a minor engaging in sexu-
ally explicit conduct.
18 U.S.C. § 2256(8) (emphasis added).3
3 Whereas the first three para-
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3 "Sexually explicit conduct" is defined 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;
4
graphs define child pornography by the essence of the depiction itself,
the fourth focuses instead on the independent matter of how the
depiction's presumed (but perhaps not actual) nature is communicated
to third parties.
The statute prohibits the transportation of child pornography in
interstate or foreign commerce (including the Internet), as well as its
receipt, sale, distribution, reproduction for distribution, or possession
with intent to sell. 18 U.S.C. § 2252A(a)(1)-(4). Mento was charged
with violating a separate provision, § 2252A(a)(5), which criminalizes
the mere possession of child pornography that has been transferred
via interstate commerce.4 4
2.
Mento argues that the CPPA, as a content-based restriction on
speech, cannot survive the exacting standards of strict scrutiny
review. Moreover, according to Mento, the Act is impermissibly over-
broad and vague insofar as it criminalizes any visual depiction that
"appears to be" child pornography, or that is transmitted in such a way
as to "convey the impression" of being child pornography.55 The dis-
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(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).
4 An affirmative defense exists for those traffickers who can prove the
material was produced using only adults, provided that the accused did
not otherwise violate the statute by advertising, promoting, presenting,
describing, or distributing the material in a manner to convey the impres-
sion that it contained a visual depiction of a minor engaging in sexually
explicit conduct. 18 U.S.C. § 2252A(c). For those charged with simple
possession of child pornography, that defense is not available; instead, an
accused in Mento's shoes may avoid conviction by demonstrating that he
(1) possessed fewer than three such images; and (2) promptly and in
good faith destroyed or reported the images to law enforcement.
§ 2252A(d).
5 Mento does not contest that he knowingly possessed images of actual
minors. Indeed, we would uphold Mento's conviction even if we deter-
5
trict court denied Mento's motion to dismiss the indictment, adopting
the reasoning of United States v. Hilton, 167 F.3d 61 (1st Cir. 1999).
In Hilton, the First Circuit upheld the CPPA, ruling that the "appears
to be" and "conveys the impression" language is neither so overbroad
nor so vague as to render the Act unconstitutional. Id. at 71-77.
After judgment was entered against Mento in the district court, two
other courts of appeals published decisions on the issues raised here
and in Hilton. In United States v. Acheson, 195 F.3d 645 (11th Cir.
1999), the Eleventh Circuit aligned itself with Hilton in upholding the
CPPA against constitutional attack. Shortly thereafter, however, a
divided panel of the Ninth Circuit announced its disagreement with
the rationale expressed in Hilton and Acheson, striking down the "ap-
pears to be" and "conveys the impression" language as unconstitu-
tional on overbreadth and vagueness grounds. See Free Speech
Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999). Mindful of the con-
flicting views that have emerged, we turn now to Mento's case.
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mined the statutory language in question to be unconstitutional; the stat-
ute could be severed accordingly. See Free Speech Coalition v. Reno,
198 F.3d 1083, 1086 (9th Cir. 1999). Ordinarily, we do not address the
constitutionality of a statute on the ground that its application might be
unconstitutional in a situation not squarely before us. See United States
v. Raines, 362 U.S. 17, 21 (1960). Inasmuch as the issue on appeal impli-
cates the free speech rights of the First Amendment, however, it raises
the concern of self-censorship. Therefore, we decide the question of
whether the CPPA, on its face, is unconstitutional. See Dombrowski v.
Pfister, 380 U.S. 479, 486-87 (1965) (concluding that the "sensitive
nature of constitutionally protected expression" permits the courts to
determine the validity of statutes regulating speech without regard to the
law's application in a particular case).
Mento's First Amendment attack on the CPPA encompasses the argu-
ment that the Act is impermissibly vague, a defect that is also alleged to
be a deprivation of his Fifth Amendment right to due process. We note,
however, that Mento does not possess standing to raise a Fifth Amend-
ment claim; the severability of the Act deprives him of any legally cogni-
zable interest in the outcome. County of Los Angeles v. Davis, 440 U.S.
625, 631 (1979). Mento's lack of standing in this regard is of little practi-
cal effect, however, in light of our decision to address the vagueness
issue in the First Amendment context.
6
II.
We review de novo a challenge to the constitutionality of a federal
statute. Multi-Channel TV Cable Co. v. Charlottesville Quality Cable
Corp., 65 F.3d 1113, 1123 (4th Cir. 1995).
III.
A.
A "content-based" restriction on speech is subject to strict scrutiny
review. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). A
regulation is content-based if it is aimed at inhibiting the expression
itself. Conversely, a regulation is "content-neutral" if it is designed to
control only secondary effects resulting from the protected expres-
sion. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49 (1986).
The CPPA bans an entire category of expression -- all child por-
nography -- based on its content. Blanket suppression of an entire
category of speech unquestionably constitutes a content-based regula-
tion. Hilton, 167 F.3d at 68. That the Act happens to further the gov-
ernment's interest in countering the secondary effects of child
pornography does not render the statute content-neutral, inasmuch as
the law manifests the lawmakers' disagreement with the message con-
veyed by the targeted speech. See Boos v. Barry , 485 U.S. 312, 321
(1988).6
6
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6 The government argues that the CPPA is content-neutral insofar as
the Act seeks to regulate the secondary effects child pornography has on
pedophiles. In support of its view, the government cites the Supreme
Court's decisions in Renton and City of Erie v. Pap's A.M., 529 U.S. 277(2000). The Court in these two cases deemed content-neutral local ordi-
nances that, respectively, regulated the location of adult theaters and
banned full nudity at dancing establishments. Neither of these ordi-
nances, however, banned a form of expression in its entirety. Moreover,
the Court has clarified that the Renton ordinance would have been
content-based had it sought to prevent the psychological damage associ-
ated with viewing adult movies, thereby targeting the direct impact of a
particular category of speech. Boos, 485 U.S. at 321.
7
B.
The First Amendment is the bedrock upon which our political sys-
tem is founded; its affirmation of free expression permeates our very
culture. Limitations imposed on speech because of its content are
therefore subject to strict scrutiny, that is, no such limitation is valid
unless it is narrowly tailored to serve a compelling government inter-
est. Boos, 485 U.S. at 321.
1.
The Supreme Court has often recognized the government's com-
pelling interest in protecting children from harm. See Santosky v.
Kramer, 455 U.S. 745, 766 (1982); FCC v. Pacifica Found., 438 U.S.
726, 749-50 (1978); Ginsberg v. New York, 390 U.S. 629, 639 (1968).
Moreover, the Court has specifically noted the existence of a substan-
tial government interest in prosecuting those who promote the sexual
exploitation of children. See Ferber, 458 U.S. at 761. The Court has
also acknowledged the government's interest in closing the network
of distribution for child pornography, in stamping out child pornogra-
phy in the marketplace and for private possession, and in denying
pedophiles and child abusers access to child pornography to seduce
or coerce children into sexual activity. Osborne v. Ohio, 495 U.S.
103, 109-11 (1990).
The CPPA was designed by Congress to serve all of these interests.
Courts and commentators have examined the legislative history of the
Act, identifying its primary purposes as follows:
(1) to prevent the use of virtual child pornography to stim-
ulate the sexual appetites of pedophiles and child sex-
ual abusers;
(2) to destroy the network and market for child pornogra-
phy;
(3) to prevent the use of pornographic depictions of chil-
dren in the seduction or coercion of other children into
sexual activity;
8
(4) to solve the problem of prosecution in those cases
where the government cannot call as a witness or oth-
erwise identify the child involved to establish his/her
age;
(5) to prevent harm to actual children involved, where
child pornography serves as a lasting record of their
abuse; and
(6) to prevent harm to children caused by the sexualization
and eroticization of minors in child pornography.
See, e.g., Hilton, 167 F.3d at 66-67; Debra D. Burke, The Criminal-
ization of Virtual Child Pornography: A Constitutional Question, 34
Harv. J. on Legis. 439, 452 (1997).
Mento nonetheless contends that the government's true purpose in
combating child pornography has impermissibly shifted from prevent-
ing tangible harm to real children, toward eradicating certain ideas
that it considers inherently evil.77 Indeed, the government does not dis-
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7 Mento maintains that the regulation of ideas -- even bad ones -- is
per se unconstitutional. In support of this position, Mento cites American
Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985). At issue
in American Booksellers was an Indianapolis ordinance prohibiting cer-
tain types of adult pornography depicting women as subordinate. In strik-
ing down the ordinance, the court of appeals stated that "[u]nder the First
Amendment, the government must leave to the people the evaluation of
ideas." Id. at 327.
Mento's argument misses the mark. The Seventh Circuit invalidated
the ordinance as contrary to the Supreme Court's admonition in Miller
that only obscene depictions of adult pornography can be regulated out
of existence:
True, pornography and obscenity have sex in common. But Indi-
anapolis left out of its definition any reference to literary, artistic,
political, or scientific value. The ordinance applies to graphic
sexually explicit subordination in works great and small. The
Court sometimes balances the value of speech against the costs
of its restriction, but it does this by category of speech and not
by the content of particular works.
9
pute that, because the CPPA purports to criminalize the possession of
artificially created images, the intended scope of the Act's protection
is not limited to actual children involved in the production of pornog-
raphy. Mento maintains that this reach is improper in light of the
Supreme Court's decision in Ferber, which, according to Mento, lim-
ited appropriate government interests to those designed to keep real
children from being victimized by pornographers.
Mento interprets Ferber too narrowly. Ferber necessarily dealt
only with depictions of actual children, long before virtual pornogra-
phy became an issue. Viewed in the proper context, Ferber in no way
stands for the proposition that permissible governmental interests in
the realm of child pornography would be forever restricted to the
harm suffered by identifiable children participating in its production.8
8
To the contrary, the Supreme Court has mandated that a degree of
flexibility be reserved for the government to address new problems
presented by the evolving nature of the child pornography industry.
See Ferber, 458 U.S. at 756; see also Osborne, 495 U.S. at 103.
Importantly, by denying child pornography First Amendment protec-
tion, the Supreme Court has made clear that "the prevention of sexual
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American Booksellers, 771 F.2d at 331-32. Child pornography, unlike
adult pornography, is a "category of speech" that may, consistent with
the Constitution, be utterly silenced. That one or more such depictions
might have serious literary or artistic value, or be designed to express an
"idea" of its creator, does not affect the constitutional calculus. If the
material is in fact child pornography, it may be banned.
8 Ferber protected "depictions of sexual conduct, not otherwise
obscene, which do not involve live performance or photographic or other
visual reproduction of live performances." Ferber, 458 U.S. at 765. This
statement was not intended to limit government interests in the manner
Mento suggests; rather, it was meant to limit regulation to those images
that appear to be actual pornographic photographs-- excluding from
prohibition cartoon images, for example. Though the Ferber Court noted
that legitimate government interests would extend only to material that
"render[s] the portrayal somewhat more realistic by utilizing or photo-
graphing children," the Court was again referring to the danger of cen-
soring less graphic material, such as drawings. Id. at 763.
10
exploitation and abuse of children constitutes a governmental objec-
tive of surpassing importance." Ferber, 458 U.S. at 757. The govern-
ment's interest in stamping out child pornography and denying
pedophiles and child abusers access thereto extends beyond the pro-
tection of the children involved in making the pornography. The gov-
ernment instead aspires to shield all children from sexual exploitation
resulting from child pornography, and that interest is indeed compel-
ling.
2.
Congress may regulate protected speech to promote a compelling
governmental interest so long as it selects "the least restrictive means
to further the articulated interest." Sable Communications of Calif.,
Inc. v. FCC, 492 U.S. 115, 126 (1989). At issue here is whether, in
executing the appropriate government interest, Congress can include
in the definition of child pornography all sexually explicit depictions
that "appear to be" of minors, or "convey the impression" of being
minors.
The Supreme Court has approved as narrowly tailored the banning
of child pornography, including its possession, in part because of the
causal link between child pornography and the sexual abuse and
exploitation of children. Therefore, the question is whether there is
any substantial difference between child pornography in the tradi-
tional sense and child pornography where the minor is "virtual."
Congress has found that pornography involving actors who "appear
to be" minors has all of the same effects on child molesters as actual
child pornography.
[T]he effect of visual depictions of child sexual activity on
a child molester or pedophile using that material to stimulate
or whet his own sexual appetites, or on a child where the
material is being used as a means of seducing or breaking
down the child's inhibitions to sexual abuse or exploitation,
is the same whether the child pornography consists of pho-
tographic depictions of actual children or visual depictions
produced wholly or in part by . . . computer.
11
110 Stat. 3009-26, -27. To the viewer, there is no difference between
a picture of an actual child and what "appears to be" a child. Simi-
larly, depictions that are represented to be minors are harmful in the
same way as any child pornography, except that there is no minor
involved in their production. See Hilton, 167 F.3d at 69 (noting the
concern of Congress that a "child molester or pedophile [may use] the
material to whet his sexual appetites," or show the material to child
acquaintances to make them "more susceptible of acceding to sexual
demands" (quoting S. Rep. No. 104-358, at pt. III, IV(A) (1996)
(brackets in original)).
Logically, then, the connection between virtual child pornography
and the sexual abuse of children is as powerful as the causal link that
justifies the utter prohibition of pornographic images involving actual
child participants. Unfortunately, technological advances have
resulted in an enforcement problem, which the government refers to
as an "epistemological conundrum." Without the benefit of the "ap-
pears to be" language in the CPPA, there is frequently a built-in
reasonable-doubt argument as to the age of the participant, unless the
government can identify the actual child involved. If the identity of
the actor is not available, often the government can prove nothing
more than the depiction "appears to be" that of a minor.
In light of recent improvements in technology, "efforts to eradicate
the child pornography industry could be effectively frustrated if Con-
gress were prevented from targeting material that appears to be of real
children." Hilton, 167 F.3d at 73. We agree with the First Circuit that
the statutory language "appears to be" cannot be improved upon while
still achieving the compelling government purpose of banning child
pornography.
The ban on material that "appears to be" child pornography or
"conveys the impression" thereof may indeed affect some pornogra-
phy where adults pose in a manner designed to simulate children. The
government, however, has the same compelling interest in banning
this material because it satisfies the audience for child pornography,
resulting in the same negative effects on minors generally. In sum, we
conclude that the CPPA represents the least restrictive means of
advancing the vitally important government interest of effectively
protecting minors from sexual exploitation and abuse.
12
C.
Mento next contends that the "appears to be" and "conveys the
impression" language renders the CPPA unconstitutionally overbroad.
In order for a statute to be invalidated on its face, its overbreadth must
be real and substantial when judged in relation to the statute's plainly
legitimate sweep. Ferber, 458 U.S. at 770. A statute is not overbroad
unless it reaches a substantial number of impermissible applications.
Id. at 771. The overbreadth doctrine should only be used as a last
resort, and we must construe the statute, if at all possible, to avoid
constitutional problems. Broadrick v. Oklahoma , 413 U.S. 601, 613
(1973).
We agree with the First Circuit's rationale in Hilton that, although
not explicitly stated in the statute, the "appears to be" language of the
Act bans only those images that are virtually indistinguishable from
previously banned photographic depictions; it does not outlaw items
such as drawings, cartoons, or paintings. See S. Rep. No. 104-358, at
pt. IV(C) ("[T]he appears to be language applies to the same type of
photographic image already prohibited, but which does not require the
use of an actual minor in its production.").
There is no question that the CPPA criminalizes certain images that
resemble true photographs, but are in fact altered from various inno-
cent and unrelated sources, and thus produced in a manner that did
not harm any child. Consequently, the Act prohibits material that is
predominantly the product of the creator's imagination -- an array of
complex computer images whose composition requires a degree of
artistic skill. Nevertheless, artificial depictions of child pornography
that cannot be easily distinguished from the real thing do not deserve
the protections of the First Amendment because,"like sexually
explicit material produced with actual children, there is little, if any,
social value in this type of expression." Hilton, 167 F.3d at 73.
With regard to "real" depictions involving young-looking actors of
uncertain age, the Act offers an affirmative defense to sellers, produc-
ers, and distributors who can provide proof of the participants' major-
ity. Admittedly, this defense is unavailable to mere possessors. See
supra note 4. There is, therefore, a slight risk that a person could be
13
convicted of possessing "child" pornography that was actually pro-
duced using adults.
This risk could only be eliminated, however, if the statute were to
offer safe harbor to possessors of teen pornography where the actors
are not identifiable. Such an approach would do nothing to prevent
the sexual exploitation of teenagers and other minors, and it would
permit the market for child pornography to thrive. As a result, com-
pelling government objectives -- including the protection of minors
who may seem sexually mature -- would be thwarted. See Hilton,
167 F.3d at 76 ("[I]t is well within Congress's power to regulate vir-
tual pornography of minors of all ages."); see also Acheson, 195 F.3d
at 652 ("[S]exually explicit images falling close to the line separating
adult pornography and unprotected child pornography are outside the
most sensitive areas of speech vital to the free expression of ideas.").
We thus concur with our sister circuits that the CPPA does not burden
substantially more material than necessary to further the govern-
ment's interest in prohibiting child pornography.
D.
To avoid being unconstitutionally vague, a statute must provide
clear and adequate notice of the activity it prohibits. Although the
Constitution does not impose "impossible standards of clarity" on
Congress, ordinary people should understand the prohibitions, and the
statute should not encourage arbitrary enforcement. Kolender v. Law-
son, 461 U.S. 352, 361 (1983). With First Amendment issues, the
undesirable effect of self-censorship makes this a heightened concern.
Baggett v. Bullitt, 377 U.S. 360, 372 (1964).
We conclude that the CPPA provides clear and adequate notice of
the activity it regulates, such that ordinary citizens and those charged
with enforcing the law may readily understand what is prohibited.
Because it meets the Constitution's specificity requirements, the Act
is not void for vagueness.
First, the Act explicitly lists the elements of child pornography,
specifies "minor" as a person under the age of eighteen, and particu-
larly defines the sexually explicit conduct that will not be condoned.
18 U.S.C. § 2256(8). Precisely four categories of material depicting
14
such conduct are banned: actual pictures of actual minors, altered pic-
tures of actual minors, pictures appearing to be of minors, and pic-
tures that are represented to be minors.
Second, those who mail, transport, receive, sell, distribute, or
reproduce the material are protected if they can show the actor was
actually an adult and the material was not represented to be a depic-
tion of one or more minors. 18 U.S.C. § 2252A(c). Because an affir-
mative defense is also available to those charged with mere
possession, see supra note 4, it is highly unlikely that innocent per-
sons who inadvertently stumble across prohibited materials will be
convicted.
Third, the legislative history of the CPPA shows that by using the
words "appears to be," Congress intended only to include those
images "virtually indistinguishableto unsuspecting viewers from
. . . [altered] photographs of actual children engaging in identical sex-
ual conduct." S. Rep. No. 104-358, at pts. I, IV(B) (emphasis added).
We do not understand the statute to criminalize any sexually explicit
depictions that are not virtually indistinguishable from photographic
child pornography.
Fourth, we believe the "appears to be" language connotes an objec-
tive standard. As in any felony case, the prosecution must establish
the element of scienter to obtain a conviction. See United States v. X-
Citement Video, Inc., 513 U.S. 64, 78 (1994). The jury must deter-
mine, based on all the evidence, whether a reasonable viewer would
consider the depiction to be of an actual minor. If the jury required
guidance in this respect, it could look to the manner in which the
image was marketed to determine whether it is prohibited material.
Hilton, 167 F.3d at 75. Of course, if the presentation were such that
it "conveyed the impression" that the image was of one or more
minors, that would provide an independent basis for conviction. But
even then, it would be the jury's responsibility to ensure that a reason-
able person would understand the specific impression sought to be
conveyed. In any case, juries should have no trouble rejecting a prose-
cution of doubtful merit.
IV.
The CPPA is indeed bold and innovative in its attempt to combat
the sexual exploitation of minors caused by the trade of child pornog-
15
raphy. Boldness and innovation, however, do not render an Act of
Congress constitutionally infirm. We hold that the CPPA does not
impermissibly regulate protected speech and does not, therefore,
offend the First Amendment. Consequently, we affirm Mento's con-
viction of illegally possessing child pornography.
AFFIRMED
16