Free Speech Coalition v. Reno

with whom O’SCANNLAIN and T.G. NELSON, Circuit Judges, join, dissenting from denial of rehearing en banc:

I respectfully dissent from the order denying the petition for rehearing en banc. The divided panel decision warranted this Court’s en banc attention because it.creates a conflict with our sister circuits on an issue of exceptional importance.

The conflict? The panel majority struck down the provisions of the Child Pornography Prevention Act of 1996 (“CPPA”) that criminalize visual depictions that “appear to be” or “convey the impression” of child pornography. See Free Speech Coalition v. Reno, 198 F.3d. 1083 (9th Cir.1999). It held that these provisions violate the First Amendment because they prohibit visual images of “virtual” child pornography along with “actual” child pornography. It did so in the face of decisions of the First and Eleventh Circuits upholding the same provisions of the CPPA. See United States v. Acheson, 195 F.3d 645 (11th Cir.1999) (rejecting First Amendment challenge to CPPA on grounds of vagueness, over-breadth, and facial invalidity); United States v. Hilton, 167 F.3d 61 (1st Cir.1999) (same); see also United States v. Pearl, 89 F.Supp.2d 1237…

ORDER; Dissent by Judge WARDLAW.

ORDER

The panel as constituted above, has voted as follows: Judges Thomas and Molloy voted to deny the petition for rehearing. Judge Thomas voted to reject the suggestion for rehearing en banc and Judge Mol-loy recommends rejection of the suggestion; Judge Ferguson voted to grant the *1114 petition for rehearing and recommended granting the suggestion for rehearing en banc.

A judge of the court called for a vote on the suggestion for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing. Fed. R.App. P. 35(f).

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.