Free Speech Coalition v. Reno

Dissenting:

The majority holds that Congress cannot regulate virtual child pornography 1 because it does not require the use of actual children in its production. Majority Op. at 1095. Without the use of actual children, the majority believes that Con *1098 gress is simply attempting to regulate “evil idea[s].” Id. I disagree. Congress has provided compelling evidence that virtual child pornography causes real harm to real children. As a result, virtual child pornography should join the ranks of real child pornography as a class of speech outside the protection of the First Amendment. In addition, I do not believe that the statutory terms “appears to be” or “conveys the impression” are substantially overbroad or void for vagueness. Accordingly, I would find the Child Pornography Prevention Act of 1996 (“CPPA”) constitutional.

I.

For more than two decades, Congress has been trying to eliminate the scourge of child pornography. See Majority Op. at 1087 - 89. Each time Congress passes a law, child pornographers find a way around the law’s prohibitions. See S.Rep. No. 104-358, at 26 (statement of Sen. Grassley). This cycle recently repeated itself and prompted Congress to enact the…

Opinion by Judge MOLLOY; Dissent by Judge FERGUSON.

I.

The question presented in this case is whether Congress may constitutionally proscribe as child pornography computer images that do not involve the use of real children in their production or dissemination. We hold that the First Amendment prohibits Congress from enacting a statute that makes criminal the generation of images of fictitious children engaged in imaginary but explicit sexual conduct.

II.

In this case, the district court found that the Child Pornography Prevention Act of 1996 (“CPPA” or the “Act”) was content-neutral, was not unconstitutionally vague or overbroad, and did not constitute an improper prior restraint of speech. The district court also found that the Child Pornography Prevention Act’s affirmative defense did not impermissibly shift the burden of proof to a defendant by virtue of an unconstitutional presumption.

While we agree that the plaintiffs have standing to bring this case and that the Act is not an improper prior restraint of speech, the balance of the district court’s analysis does not comport with what we believe is required by the Constitution. We find that the phrases “appears to be” a…