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. . . .

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 (9^th 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 (9^th 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 (4^th 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 (9^th Cir. 1986), cert. denied, 481 U.S. 1032 (1987); U.S. v. Lamb, 945 F. Supp. 441 (N.D.N.Y. 1996).