J.  Ninth Circuit Denies ‘Dirty Pixels’ Rehearing; Fourth Circuit Upholds Law      

    The Child Pornography Prevention Act of 1996, 18 U.S.C. Sec. 2252A (CPPA), the so-called “Dirty Pixels” law, criminalizes the reproduction, possession, sale, or distribution of visual images depicting minors, or those who “appear to be” minors, engaging in sexually explicit conduct.  It also criminalizes images distributed or advertised in such a manner as to “convey the impression” that the depiction portrays a minor. 

    Congress enacted the CPPA to attack computerized or “virtual” child pornography, and designed the legislation to reach materials produced without the involvement of any actual children.  The First Amendment and the Media - 2000 describes the background of this legislation extending beyond the U.S. Supreme Court’s precedents (i.e., child pornography involving the use of actual children) that created a new category of expression outside the protection of the First Amendment.

    In 1999, a split developed among U.S. courts of appeal with the First and Eleventh circuits upholding the CPPA while the Ninth Circuit invalidated key portions.  See The First Amendment and the Media - 2000.  This year the Ninth Circuit denied, over a strong dissent, a rehearing en banc of its panel’s divided opinion, and the Fourth Circuit joined the First and Eleventh circuits in upholding the law.

The Free Speech Coalition v. Reno

    A majority of the active judges on the Ninth Circuit failed to vote for a rehearing en banc of a 2-to-1 panel decision in their circuit.  That ruling had invalidated the unconstitutionally vague and overbroad portions of the CPPA that criminalize visual depictions that “appear” to be of minors or that “convey” the impression that a minor is engaging in sexually explicit conduct.  The Free Speech Coalition v. Reno, 220 F.3d 1113 (9th Cir. 2000).  Three members of the court, however, dissented from the denial of en banc review because the panel opinion “creates a conflict with our sister circuits on an issue of exceptional importance.”  Id. at 1114.

    The dissent felt that the panel majority had inappropriately slighted two compelling governmental interests involved in safeguarding the physical and psychological well-being of children.  First, realistic (albeit computer-generated) images of children engaging in sexually explicit conduct may be used by pedophiles to seduce other children into sexual activity.  Second, to prosecute child pornography without the expanded reach of the CPPA, the government has to meet its burden of showing that a pornographic image is of a real child.  But it is becoming “increasingly difficult, if not impossible, to distinguish computer-generated from photographic depictions of child sexual activity.”  Id. 

    Thus the dissent was concerned that the CPPA is necessary to ensure the government’s ability to enforce prohibitions of actual child pornography.  According to the dissent, “[t]he panel majority elevates the free speech rights of pedophiles over the compelling governmental interest in protecting our children.”  Id. at 1115-16.

United States v. Mento

    In United States v. Mento, 231 F.3d 912 (4th Cir. 2000), Mento was charged under the CPPA with the possession of child pornography that he had downloaded from the Internet.  As a mere possessor, Mento did not have available the affirmative defense in the statute for traffickers who can prove that the material in question was produced using only adults (provided that the statute was not otherwise violated in the way the material was advertised, distributed, etc., to convey the opposite impression).  Id. at 917 n.4.  Mento did not contest that he knowingly possessed some images of actual minors, so the Fourth Circuit noted that it would uphold his conviction even if it found unconstitutional the challenged “appears to be” and “conveys the impression” language of the CPPA.  The court nonetheless decided the question of the facial constitutionality of the CPPA because of its concern about self-censorship and free speech rights under the First Amendment.  Id. at n.5.  In November 2000, the court affirmed Mento’s conviction.

    The Fourth Circuit first ruled that the “CPPA bans an entire category of expression -- all child pornography -- based on its content.  Blanket suppression of an entire category of speech unquestionably constitutes a content-based regulation.”  Id. at 918.  Indeed, the CPPA “manifests [Congress’s] disagreement with the message conveyed by the targeted speech.”  Id.  The court therefore rejected the government’s argument that the CPPA is content neutral because it seeks merely to regulate the secondary effects that child pornography has on pedophiles.  Id. at n.6. Instead, the statute had to withstand strict scrutiny, namely that it is narrowly tailored to serve a compelling government interest.

    The government does have such a compelling interest in protecting children from the specific sorts of harm Congress associated with even virtual child pornography in enacting the CPPA.  The court therefore rejected Mento’s claim that with the CPPA Congress’s purpose “impermissibly shifted from preventing tangible harm to real children toward eradicating certain ideas it considers inherently evil.”  Id. at 919.  Rather, the CPPA is consistent with the Supreme Court’s mandate that the government has a “degree of flexibility ... to address new problems presented by the evolving nature of the child pornography industry.”  Id. at 919-20.

    The court next found that the “appears to be” and “convey the impression” provisions of the CPPA are the least restrictive means to further the articulated interest.  This is because “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.”  Id. at 920.  Material that “appears to be” child pornography or “conveys the impression” thereof “satisfies the audience for child pornography, resulting in the same negative effects on minors generally.”  Id. at 921.  Moreover, technological advances that mask the distinction between virtual and actual child pornography create an enforcement problem.

    Mento argued that the challenged statutory language is unconstitutionally overbroad and vague.  The court acknowledged that the CPPA does prohibit some 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.”  Id.  But the court construed the statute as limited to “images that are virtually indistinguishable from previously banned photographic depictions,” and there is “little, if any, social value in this type of expression.”  Id.  For similar reasons the court dismissed the “slight risk that a person could be convicted of possessing ‘child’ pornography that was actually produced using adults.”  Id.

     Finally, despite its “heightened concern” with First Amendment issues about the “undesirable effect of self-censorship,” the court ruled the CPPA is not unconstitutionally vague.  Id. at 922.  The court relied on legislative history to conclude that the “appears to be” language of the CPPA does not “criminalize any sexually explicit depictions that are not virtually indistinguishable from photographic child pornography.”  Id.  Moreover, this language and the phrase “conveyed the impression” connote an objective standard: To establish scienter the jury must determine “whether a reasonable viewer would consider the depiction to be of an actual minor” or whether “a reasonable person would understand the specific impression sought to be conveyed.”  Id.

    Despite the split among the circuits that developed in 1999, the U.S. Supreme Court so far has not reviewed the CPPA.  The Fourth Circuit’s 2000 opinion in Mento now makes the score at the circuit level 3 to 1 in favor of the Act.  Early in 2001 the Supreme Court granted certiorari in the Ninth Circuit case, Reno v. Free Speech Coalition, 2001 WL 46070 (Jan. 22, 2001) (No. 00-795).