Child Pornography Produced Without an Actual Child: Constitutionality of 107th Congress Legislation

Report for Congress
Child Pornography Produced Without
an Actual Child: Constitutionality
th
of 107 Congress Legislation
July 15, 2002
Henry Cohen
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

Child Pornography Produced Without an Actual Child:
Constitutionality of 107^th Congress Legislation
Summary
In Ashcroft v. Free Speech Coalition, the Supreme Court declared
unconstitutional the Child Pornography Prevention Act of 1996 (CPPA) to the extent
that it prohibited material that was produced without the use of an actual child. The
only possible means that the Court explicitly left open for Congress to try to restrict
such material was to ban it, but allow an affirmative defense that the material was
produced without using actual children. Even this approach the Court did not say
would be constitutional, but merely found no need to decide whether it would be.
This approach would shift the burden of proof to the defendant on the question
of whether actual children were used in producing the material. If the defendant
could not meet the burden of proof, then he could be punished for child pornography
that might or might not have been produced with an actual minor. The Court,
however, said that “[t]he Government may not suppress lawful speech as a means to
suppress unlawful speech.” This suggests that an affirmative defense would be
unconstitutional if it were not effectively available to all classes of defendant. It
might not effectively be available, however, to individuals charged with mere
possession of child pornography, or to producers of pornography that pre-dated the
CPPA, as these defendants might have “no way of establishing the identity, or even
the existence, of the actors.”
The three bills that this report examines – H.R. 4623, as passed by the House,
S. 2511, and S. 2520 – would all ban child pornography produced without the use of
an actual child. Though all three bills would allow an affirmative defense, to the
extent that they applied to defendants who had “no way of establishing the identity,
or even the existence, of the actors,” they raise the same questions that the Court in
Ashcroft posed as to the constitutionality of such an approach. Though the bills
would permit a defendant to prove that no minors were used, rather than, as under the
CPPA, that only adult actors were used, this would not appear to eliminate this
problem, and some defendants might be convicted for conduct involving lawful
speech.
Some provisions of the bills, however, appear constitutional. All three bills, for
example, would ban attempts to distribute material in a manner that conveys the
impression that it depicts a minor engaging in sexually explicit conduct, whether or
not it does. This proscription, unlike the one that the Court struck down in Ashcroft,
would not ban any material itself, but would ban only attempts to distribute such
material. All three bills would also make it a crime to provide minors with child
pornography, whether or not it was produced with an actual child. This would appear
constitutional because the Court has found there to be a compelling interest in
shielding minors from any pornography.
This report will be updated if action occurs on any of the bills it discusses.

Contents
The Federal Child Pornography Statute............................2
Ashcroft v. Free Speech Coalition.................................3
Constitutionality of Pending Bills.................................6
Limiting the Types of Child Pornography that Would be Banned....6
Providing a New Affirmative Defense..........................8
Prohibiting Conduct Other than Possession.....................10
Banning Obscene Material Depicting a Pre-Pubescent Child.......11
Denying Child Pornography to Minors........................12
Conclusion ..................................................12

Child Pornography Produced Without an
th
Actual Child: Constitutionality of 107
Congress Legislation
The First Amendment provides: “Congress shall make no law . . . abridging the
freedom of speech, or of the press.” In general, the First Amendment protects
pornography, unless it constitutes obscenity or child pornography. Obscenity is
material that appeals to the prurient interest, is patently offensive, and lacks serious
literary, artistic, political, or scientific value.¹ Child pornography is material that²
“visually depicts sexual conduct by children below a specified age.” It is
unprotected by the First Amendment even when it is not legally obscene.³
On April 16, 2002, in Ashcroft v. Free Speech Coalition, the Supreme Court
declared unconstitutional the federal child pornography law to the extent that it
prohibited material that was produced without the use of an actual child.⁴ The case
held, in other words, that pornography created by artists, including “virtual”
(computer-generated) pornography, and pornography produced with adult actors but
with no actors below 18 years of age, are protected by the First Amendment, even if
they appear to portray minors, unless they are obscene. In response to Ashcroft, bills^th
were introduced in the 107 Congress that would continue to ban some child
pornography that was produced without the use of an actual child. The Senate bills
are S. 2520 and S. 2511; the House bill is H.R. 4623, which was identical to S. 2511,
but which was amended by the House Judiciary Committee and reported on June 24,
2002 (H.R. Rep. No. 107-526), and passed by the House without further amendment
on June 25, 2002.
This report will examine (1) the current federal child pornography statute, part
of which was declared unconstitutional in Ashcroft v. Free Speech Coalition, (2)
Ashcroft v. Free Speech Coalition, and (3) the bills introduced in response to
Ashcroft v. Free Speech Coalition.

¹See Miller v. California, 413 U.S. 15, 24 (1973). See also, Obscenity and Indecency:
Constitutional Principles and Federal Statutes (CRS Report 95-804 A).
²New York v. Ferber, 458 U.S. 747, 764 (1982) (emphasis in original). See Child
Pornography: Constitutional Principles and Federal Statutes (CRS Report 95-406 A).
³This means that child pornography may be banned even if does not appeal to the prurient
interest, is not patently offensive, and does not lack serious value. See Ferber, supra note

2, 458 U.S. at 764.

⁴535 U.S.__, 122 S. Ct. 1389, 152 L.Ed.2d 403 (2002).

The Federal Child Pornography Statute
The federal child pornography statute prohibits the transporting, shipping,
receipt, distribution, reproduction, selling, or possessing of child pornography.⁵ It
defines “sexually explicit conduct” (conduct in which one may not depict minors
engaging) 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.⁶
The Child Pornography Prevention Act of 1996 (CPPA)⁷ added to the statute the
following definition of “child pornography”:
“child pornography” means 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 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.⁸
The CPPA, however provides an affirmative defense (not available to a
defendant charged with possession without intent to sell) that each person used in
producing the alleged child pornography was an adult, and that “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

⁵18 U.S.C. §§ 2252(a), 2252A(a).
⁶18 U.S.C. § 2256(2).
⁷Public Law 104-208, 110 Stat. 3009-26.
⁸18 U.S.C. § 2256(8).

in sexually explicit conduct.”⁹ For a defendant charged only with possession of child
pornography, there is an affirmative defense that the defendant (1) possessed fewer
than three images of child pornography, and (2) promptly and in good faith destroyed
or reported the images to a law enforcement agency.¹⁰
Ashcroft v. Free Speech Coalition
On April 16, 2002, in Ashcroft v. Free Speech Coalition, the Supreme Court
struck down paragraphs (B) and (D) of the definition of “child pornography” quoted
above. Paragraphs (A), which covers images of actual children engaged in sexually
explicit conduct, and paragraph (C), which covers images of actual children
“morphed” to make it appear as if the children are engaged in sexually explicit
conduct, were not in issue. Paragraphs (B) and (D), by contrast, cover pornography
that was produced without the use of actual children.
In Ashcroft v. Free Speech Coalition, the Supreme Court observed that statutes
that prohibit child pornography that is produced with actual children are
constitutional because they target “[t]he production of the work, not the content.”¹¹
The CPPA, by contrast, targeted the content, not the means of production. “Virtual
child pornography is not ‘intrinsically related’ to the sexual abuse of children, as¹²
were the materials in Ferber.”
The government’s rationales for the CPPA included that “[p]edophiles might
use the materials to encourage children to participate in sexual activity” and might
“whet their own sexual appetites” with it, “thereby increasing . . . the sexual abuse
and exploitation of actual children.”¹³ The Court found these rationales inadequate
because “[t]he evil in question depends upon the actor’s unlawful conduct, conduct
defined as criminal quite apart from any link to the speech in question. . . . The
government ‘cannot constitutionally premise legislation on the desirability of
controlling a person’s private thoughts. . . . The government may not prohibit speech
because it increases the chance an unlawful act will be committed ‘at some indefinite
future time.’ . . . Without a significantly stronger, more direct connection, the
Government may not prohibit speech on the ground that it may encourage pedophiles
to engage in illegal conduct.”¹⁴
The government also argued that the existence of “virtual” child pornography
“can make it harder to prosecute pornographers who do use real minors,” because,

⁹18 U.S.C. § 2252A(c). The reason that this affirmative defense is not available to a
defendant charged with possession without intent to sell is that the affirmative defense
applies only to paragraphs (1), (2), (3), and (4) of section 2252A(a), whereas paragraph (5)
covers possession offenses. (Paragraph (4) covers possession with intent to sell.)
¹⁰18 U.S.C. §§ 2252(d), 2252A(d).
¹¹Ashcroft, supra note 4, 122 S. Ct. at 1401; see also id. at 1397.
¹²Id. at 1402; see also id. at 1401.
¹³Id. at 1397.
¹⁴Id. at 1403.

“[a]s imaging technology improves . . . , it becomes more difficult to prove that a
particular picture was produced using actual children.”¹⁵ “This analysis,” the Court
found, “turns the First Amendment upside down. The Government may not suppress
lawful speech as a means to suppress unlawful speech. Protected speech does not
become unprotected merely because it resembles the latter. The Constitution requires
the reverse. ‘[T]he possible harm to society in permitting some unprotected speech
to go unpunished is outweighed by the possibility that protected speech of others may
be muted . . . .’”¹⁶
The Court also noted that, because child pornography, unlike obscenity, may
include material with serious literary, artistic, political, or scientific value, it includes
“[a]ny depiction of sexually explicit activity, no matter how it is presented . . . . The
CPPA [therefore] applies to a picture in a psychology manual, as well as a movie
depicting the horrors of sexual abuse. . . . [T]eenage sexual activity and the sexual
abuse of children . . . have inspired countless literary works.”¹⁷ The Court then noted
that the CPPA would make it a crime to film Shakespeare’s Romeo and Juliet in a
manner that made it appear that the teenage lovers were engaging in sexually explicit
conduct.
The majority opinion in Ashcroft v. Free Speech Coalition was written by
Justice Kennedy and joined by Justices Stevens, Souter, Ginsberg, and Breyer, with
Justice Thomas concurring. Justice O’Connor concurred insofar as the decision
struck down the prohibition of child pornography created with adults that look like
children, but dissented insofar as it struck down the ban on virtual child pornography.
Justices Rehnquist wrote a dissenting opinion joined by Justice Scalia, arguing that
the CPPA should be construed to apply only to “computer-generated images that are
virtually indistinguishable from real children engaged in sexually explicit conduct,”
and upheld as such.¹⁸
Did the Court leave Congress with any constitutional means by which it may
restrict child pornography that was produced without an actual child? The only
possibility that the Court explicitly left open – not by saying that it would be
constitutional, but merely by finding no need to decide the question – is to ban
material that appears to depict an actual child engaging in sexually explicit conduct,
but that was produced without using an actual child, while allowing an affirmative
defense that the material was produced without using an actual child. This approach
would shift the burden of proof to the defendant on the question of whether an actual
child was used in producing the material. If the defendant could not meet the burden

¹⁵Id. at 1397.
¹⁶Id. at 1404. Justice Thomas, concurring, wrote that “technology may evolve to the point
where . . . the Government cannot prove that certain pornographic images are of real
children,” and that, if that becomes the case, “the Government may well have a compelling
interest in barring or otherwise regulating some narrow category of ‘lawful speech’ in order
to enforce effectively laws against pornography made though the abuse of real children.”
Id. at 1406-1407.
¹⁷Id. at 1400.
¹⁸Id. at 1411.

of proof, then he could be punished for child pornography that might or might not
have been produced with an actual minor. Here is what the Court said on this matter:
[T]he Government would have us read the CPPA not as a measure suppressing
speech but as a law shifting the burden to the accused to prove the speech is
lawful. In this connection, the Government relies on an affirmative defense under
the statute, which allows a defendant to avoid conviction for nonpossession
offenses by showing that the materials were produced using only adults and were
not otherwise distributed in a manner conveying the impression that they
depicted real children. See 18 U.S.C. § 2252A(c).
The Government raises serious constitutional difficulties by seeking to impose
on the defendant the burden of proving his speech is not unlawful. An
affirmative defense applies only after prosecution has begun, and the speaker
must himself prove, on pain of a felony conviction, that his conduct falls within
the affirmative defense. In cases under the CPPA, the evidentiary burden is not
trivial. Where the defendant is not the producer of the work, he may have no way
of establishing the identity, or even the existence, of the actors. If the evidentiary
issue is a serious problem for the Government, as it asserts, it will be at least as
difficult for the innocent possessor. The statute, moreover, applies to work
created before 1996, and the producers themselves may not have preserved the
records necessary to meet the burden of proof. Failure to establish the defense
can lead to a felony conviction.
We need not decide, however, whether the Government could impose this burden
on a speaker. Even if an affirmative defense can save a statute from First
Amendment challenge, here the defense is incomplete and insufficient, even on
its own terms. It allows persons to be convicted in some instances where they
can prove children were not exploited in the production. A defendant charged
with possessing, as opposed to distributing, proscribed works may not defend on
the ground that the film depicts only adult actors. See ibid. So while the
affirmative defense may protect a movie producer from prosecution for the act
of distribution, that same producer, and all other persons in the subsequent
distribution chain, could be liable for possessing the prohibited work.
Furthermore, the affirmative defense provides no protection to persons who
produce speech by using computer imaging, or through other means that do not
involve the use of adult actors who appear to be minors. See ibid. In these cases,
the defendant can demonstrate no children were harmed in producing the images,
yet the affirmative defense would not bar the prosecution. For this reason, the
affirmative defense cannot save the statute, for it leaves unprotected a substantial
amount of speech not tied to the Government’s interest in distinguishing images¹⁹
produced using real children from virtual ones.
In the third paragraph of this quotation, the Court notes that the CPPA’s
affirmative defense is not available to defendants charged with possessing, as
opposed to distributing, proscribed works, and is not available to defendants charged
with producing material using computer imaging, or through other means that do not²⁰
involve the use of adult actors who appear to be minors. But, if Congress expanded
the affirmative defense to include these two classes of defendants, the CPPA might

¹⁹Id. at 1404-1405.
²⁰See note 9, supra.

still be unconstitutional. An affirmative defense that applied to defendants charged
with possession offenses, or to producers of older works, might violate due process
because such persons might, as the Court noted in the second paragraph of the above
quotation, “have no way of establishing the identity, or even the existence, of the
actors.” If such persons had no way of establishing their innocence, then the
affirmative defense would effectively not be available to them, and the government
would still apparently, in violation of the First Amendment, “suppress lawful speech
as a means to suppress unlawful speech.”²¹
Justice Thomas, in his concurring opinion, wrote: “The Court does leave open
the possibility that a more complete affirmative defense could save a statute’s
constitutionality, see ante, at 1405, implicitly accepting that some regulation of
virtual child pornography might be constitutional. I would not prejudge, however,
whether a more complete affirmative defense is the only way to narrowly tailor a
criminal statute that prohibits the possession and dissemination of virtual child
pornography.”²² He does not, however, suggest any other way.
The Court concluded: “In sum, §2256(8)(B) covers materials beyond the
categories [of unprotected speech] recognized in Ferber [child pornography using an
actual child] and Miller [obscenity], and the reasons the Government offers in
support of limiting the freedom of speech have no justification in our precedents or
in the law of the First Amendment.”²³ It added that the prohibitions of § 2256(8)(D),
as well as of 2256(8)(B), “are overbroad and unconstitutional.”²⁴
Constitutionality of Pending Bills
The 107^th Congress bills that would continue to ban some child pornography
that was produced without the use of an actual child are, as noted above, H.R. 4623,
S. 2511, and S. 2520. H.R. 4623 was identical to S. 2511, but was amended by the
House Judiciary Committee and reported on June 24, 2002 (H.R. Rep. No. 107-526),
and passed by the House without further amendment on June 25, 2002.
The three bills are, in broad outline, similar. All contain similar features that
appear unconstitutional and other similar features that appear constitutional. This
report considers these features of the bills in general terms; for a more detailed,
section-by-section analysis of the bills, see Constitutionality of 107^th Congress
Legislation to Ban Child Pornography Produced Without an Actual Minor. This is
a CRS general-distribution memorandum by the present author, dated July 2, 2002.
Limiting the Types of Child Pornography that Would be Banned.
H.R. 4623, as passed by the House, would amend paragraph (B) of the definition
of “child pornography,” quoted at page 2 above, so that it no longer would include

²¹Id. at 1404 (previously quoted in the text accompanying note 16, supra).
²²Id. at 1407.
²³Id. at 1405.
²⁴Id. at 1406.

any “visual depiction [that] is, or appears to be, of a minor engaging in sexually
explicit conduct,” but would include only any “visual depiction [that] is a computer
image or computer-generated image that is, or is indistinguishable . . . from, that of
a minor engaging in sexually explicit conduct.”²⁵ Thus, H.R. 4623, unlike the CPPA,
would ban depictions only if they appear on a computer and only if they are virtually
indistinguishable from images of actual minors engaging in sexually explicit conduct.
H.R. 4623 would also provide, for purposes of the new paragraph (B) of the
definition of “child pornography,” a new definition of “sexually explicit conduct.”
Whereas, for purposes of paragraphs (A), (C), and (D) of the definition of “child
pornography,” the phrase “sexually explicit conduct” would continue to mean “actual
or simulated” sexual intercourse, bestiality, masturbation, sadistic or masochistic
abuse, or lascivious exhibition of the genitals or pubic area of any person, it would
mean, for purposes of the new paragraph (B) of the definition of “child
pornography,” each of these sexual activities in “actual or lascivious simulated”
form. H.R. 4623, thus, would ban depictions of simulated sexual activities only if
they were “lascivious,” and, for depictions of simulated sexual intercourse to be
lascivious, the new definition of “sexually explicit conduct,” applicable to the new
paragraph (B) of the definition of “child pornography,” provides that “the genitals,
breast, or pubic area of any person” would have to be exhibited. (The provision does
not distinguish male from female breasts.) This limitation on the meaning of
“lascivious” would apply only to simulated sexual intercourse, and not to simulations
of other types of sexually explicit conduct.
H.R. 4623 would also enact a new 18 U.S.C. § 1466A that would make it a
crime knowingly to produce, distribute, receive, or possess “a visual depiction that
is, or is indistinguishable from, that of a pre-pubescent child engaging in sexually
explicit conduct.”²⁶ It appears that the word “indistinguishable” would generally
apply to computer-generated pornography, and not to pornography that uses actors
over 18 years of age, as such actors would seem rarely if ever to be indistinguishable
from pre-pubescent children. Section 1466A, by prohibiting a subset of child
pornography, would apparently be redundant, except as to the penalties that could be
imposed. Section 5(b) would prescribe the sentence applicable to these sections
under the Sentencing Guidelines.
S. 2511 is similar to H.R. 4623, as passed, regarding the above provisions.
None of the above limitations, in and of themselves, would appear to make H.R.
4623 or S. 2511 constitutional, to the extent that they would ban non-obscene child
pornography that does not portray an actual child engaging in sexually explicit
conduct. This is because the Court in Ashcroft v. Free Speech Coalition held it
unconstitutional to prohibit any non-obscene material that does not portray an actual
child engaging in sexually explicit conduct. The decision provided no exception for
material that is virtually indistinguishable from child pornography, for material that

²⁵Every reference to H.R. 4623 from this point on is to the bill as passed.
²⁶H.R. 4623 would define “pre-pubescent child” as (1) “one whose physical development
indicates the child is 12 years of age or younger,” or (2) one who, “as depicted, does not
exhibit significant pubescent physical or sexual maturation.”

appears on a computer, for material that is lascivious, or for material that depicts pre-
pubescent children.
S. 2520 would include a different limitation as to the child pornography that it
would ban. It would define “child pornography” to include visual depictions that are
“of a minor, or an individual who appears to be a minor,” actually engaging in
specified sex acts, and that “lack[ ] serious literary, artistic, political, or scientific
value.” This new definition would be unconstitutional to the extent that it would
prohibit material that was produced without using a minor and that was not obscene.
The fact that such material lacked serious literary, artistic, political, or scientific
value would mean that it would satisfy the third prong of the three-pronged Miller
test for obscenity. To be obscene, however, material would also have to appeal to the
prurient interest and be patently offensive.
Providing a New Affirmative Defense.
The affirmative defense in the CPPA provided that a defendant may avoid
conviction by proving that each person used in producing the alleged child
pornography “was an adult,” and that “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.” H.R. 4623 would require the defendant to prove “that the alleged
offense did not involve the use of a minor . . . .” The defendant would no longer
have to prove anything with regard to the matter of advertising, promoting,
presenting, describing, or distributing the material. The change from having to prove
that the actors were adults, to having to prove that they were not minors, would be
significant because the former requirement, as the Supreme Court noted in Ashcroft,
meant that “the affirmative defense provide[d] no protection to persons who produce
speech by using computer imaging, or through other means that do not involve the
use of adult actors who appear to be minors.”²⁷ S. 2511 is similar to H.R. 4623, as
passed, regarding its affirmative defense.
In Ashcroft, the Court found the affirmative defense in the CPPA “incomplete
and insufficient” for two reasons: (1) “[a] defendant charged with possessing, as
opposed to distributing, proscribed works may not defend on the ground that the film
depicts only adult actors,”²⁸ and (2) “the affirmative defense provides no protection
to persons who produce speech by using computer imaging, or through other means
that do not involve the use of adult actors who appear to be minors.”²⁹ That would
not be the case under H.R. 4623 or S. 2511. But this would not necessarily mean that
these bills would be constitutional, as the Court in Ashcroft did not say that fixing
these two problems would be sufficient. Rather, it said that it “need not decide”

²⁷Previously quoted in the third paragraph of the text accompanying note 19, supra.
²⁸Id. See note 9, supra.
²⁹Id. The reason that this was the case under the CPPA is that the affirmative defense
required the defendant to prove that each actor was an adult at the time the material was
produced.

whether the government could impose on a speaker the burden of proving his
innocence. And, it wrote:
Where the defendant is not the producer of the work, he may have no way of
establishing the identity, or even the existence, of the actors. If the evidentiary
issue is a serious problem for the Government, as it asserts, it will be at least as
difficult for the innocent possessor. The statute, moreover, applies to work
created before 1996, and the producers themselves may not have preserved the
records necessary to meet the burden of proof. Failure to establish the defense³⁰
can lead to a felony conviction.
All these facts would remain the case under H.R. 4623 and S. 2511. A
defendant other than a producer might not be able to prove that a minor was not used
in the production of child pornography, whether it was produced with adult actors or
computer-generated, and even a producer might not be able to prove this with regard
to material that pre-dated the CPPA. Though the Court left open whether
prosecutions in either of these instances would be constitutional, it did say that “[t]he
Government may not suppress lawful speech as a means to suppress unlawful
speech.”³¹ The affirmative defense in H.R. 4623 and S. 2511 would arguably not
prevent the bills from suppressing lawful speech in some cases.
S. 2520 would amend the affirmative defense in the CPPA similarly to the way
that H.R. 4623 and S. 2511 would. S. 2520 would (1) make the affirmative defense
apply to all five paragraphs of 18 U.S.C. § 2252A(a), instead of just the first four,
thereby making it available to possession offenses,³² (2) allow the defendant to prove
either that the material was produced only with adults or that it was not produced
with an actual minor, thereby making the affirmative defense applicable to virtual³³
child pornography, and (3) remove the requirement that the defendant prove that he
“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.”
The first and second of these changes would eliminate the two reasons that the
Court in Ashcroft found the affirmative defense in the CPPA “incomplete and
insufficient”: (1) “[a] defendant charged with possessing, as opposed to distributing,
proscribed works may not defend on the ground that the film depicts only adult
actors,” and (2) “the affirmative defense provides no protection to persons who

³⁰Previously quoted in the second paragraph of the text accompanying note 19, supra.
³¹Previously quoted in the text accompanying note 16, which indicates that this statement
was a response to the government’s argument that a ban on virtual child pornography should
be permitted because, “[a]s imaging technology improves . . . , it becomes more difficult to
prove that a particular picture was produced using actual children.”
³²See note 9, supra.
³³If a defendant can prove that the material was not produced with an actual minor, then it
would not matter whether the material was produced only with adults or was computer-
generated. And, if the defendant can prove that the material was produced only with adults,
he would thereby also prove that it was not produced with an actual minor. Therefore, the
bill’s option to prove that the material was produced only with adults seems superfluous.

produce speech by using computer imaging, or through other means that do not
involve the use of adult actors who appear to be minors.”³⁴ To this extent, S. 2520
is similar to S. 2511 and H.R. 4623 as passed. But the Court’s comment about the
CPPA’s affirmative defense would apparently apply to S. 2520, as it would to the
other two bills: “Where the defendant is not the producer of the work, he may have
no way of establishing the identity, or even the existence, of the actors.”³⁵ As noted
above, the Court did not decide whether this fact would render the CPPA’s
affirmative defense unconstitutional, but, if S. 2520’s affirmative defense would
effectively be unavailable to a class of defendants, then S. 2520 would appear to
“suppress lawful speech as a means to suppress unlawful speech”³⁶ and therefore be
unconstitutional.
Prohibiting Conduct Other than Possession.
Both H.R. 4623 and S. 2511 would repeal 18 U.S.C. § 2256(8)(D), which is the
part of the definition of “child pornography” that makes it a crime to mail, transport,
receive, distribute, reproduce, sell, or possess material that is not necessarily child
pornography but that is “advertised, promoted, presented, described, or distributed
in such a manner that conveys the impression that” it is. This provision was held
unconstitutional in Ashcroft. H.R. 4623 and S. 2511, however, would reenact this
provision in a different form, as new section 2252B. Subsection (a) of section 2252B
would make it a crime to “offer[ ], agree[ ], attempt[ ], or conspire[ ] to provide or
sell a visual depiction to another, and who in connection therewith knowingly
advertises, promotes, presents, or describes the visual depiction with the intent to
cause any person to believe that the material is, or contains, a visual depiction of a
minor engaging in sexually explicit conduct.” Subsection (b) of the new section
would make it a crime to “offer[ ], agree[ ], attempt[ ], or conspire[ ] to receive or
purchase from another a visual depiction that [one] believes to be, or to contain, a
visual depiction of a minor engaging in sexually explicit conduct.” Subsection (c)
of the new section would provide: “It is not a required element of any offense under
this section that any person actually provide, sell, receive, purchase, possess, or
produce any visual depiction.”
The substance of subsection (c) seems implicit in subsections (a) and (b), and
may have been included solely for the sake of clarity. Both section 2256(8)(D),
which H.R. 4623 and S. 2511 would repeal, and the new section 2252B could apply
to material that is not child pornography; the most significant difference between the
two sections appears to be that section 2256(8)(D), in conjunction with section
2252A, outlaws various acts, including distributing or possessing material that was
advertised as child pornography, whether or not it was child pornography, whereas
the new section would outlaw merely attempts to “provide or sell a visual depiction”
by advertising it as child pornography, whether or not it is child pornography, or even
exists. This means that the new provision would not outlaw possession of any
material.

³⁴Previously quoted in the third paragraph of the text accompanying note 19, supra.
³⁵Previously quoted in the second paragraph of the text accompanying note 19, supra.
³⁶Previously quoted in the text accompanying note 16, supra.

The committee report accompanying H.R. 4623 draws an analogy to
“criminalizing an individual offering to provide or sell illegal drugs, even where the
offeror does not actually have drugs in hand.”³⁷ Another analogy might be a situation
where the offeror does not even intend to sell illegal drugs, but makes a fraudulent
offer. Yet banning such conduct would not seem unconstitutional. The Court in
Ashcroft found section 2256(8)(A) unconstitutional because “[m]aterials falling
within the proscription are tainted and unlawful in the hands of all who receive it,
though they bear no responsibility for how it was marketed, sold, or described. . . .
The provision prohibits a sexually explicit film containing no youthful actors, just
because it is placed in a box suggesting a prohibited movie. Possession is a crime
even when the possessor knows the movie was mislabeled.” New section 2252B, by
contrast, would not punish possession, but only providing and selling. It would,
therefore, appear to be constitutional even when no child pornography was provided
or sold.
S. 2520 has a similar provision; it would make it a crime to “advertise[ ],
promote[ ], present[ ], describe[ ], distribute[ ], or solicit[ ] . . . any material in a
manner that conveys the impression that the material is, or contains, an obscene
visual depiction of a minor engaging in sexually explicit conduct.” This language is
virtually identical to subparagraph 2256(8)(D); however, like H.R. 4623 and S. 2511,
it would differ from subparagraph 2256(8)(D) in that it would not outlaw possession
of any material. Therefore, it would also appear to be constitutional.
Banning Obscene Material Depicting a Pre-Pubescent Child.
H.R. 4623 (but neither of the Senate bills) would enact a new 18 U.S.C.
§ 1466B that would make it a crime knowingly to produce, distribute, receive, or
possess “a visual depiction of any kind, including a drawing, cartoon, sculpture, or
painting, that – (1) depicts a pre-pubescent child engaging in sexually explicit
conduct, and (2) is obscene . . . . It is not a required element of any offense under this
section that the pre-pubescent child depicted actually existed.” Section 1466B, by
prohibiting a subset of obscenity, would apparently be redundant, except as to the
penalties that could be imposed. Section 5(b) would prescribe the sentence
applicable to these sections under the Sentencing Guidelines.
A possible constitutional problem with section 1466B is its prohibition of
possession of obscene material. The Supreme Court has held that, even though
obscenity is not protected by the First Amendment, there is a constitutional right to
possess obscene material in “the privacy of one’s own home,”³⁸ but that there is no
constitutional right to possess child pornography in the privacy of one’s own home.³⁹
Section 1466B would cover material that is both child pornography and obscene, so
which rule would apply? The material that it would cover would include both child
pornography produced with an actual child, and child pornography produced without
an actual child, with the former being unprotected speech and the latter being

³⁷H.R. Rep. No. 107-526, at 23 (2002).
³⁸Stanley v. Georgia, 394 U.S. 557, 568 (1969).
³⁹Osborne v. Ohio, 495 U.S. 103 (1990).

protected speech. It seems reasonable, therefore, to suppose that possession of the
former in one’s home would be unprotected and possession of the latter in one’s
home would be protected. In addition, the Court in Osborne v. Ohio, in holding that
there is no constitutional right to possess child pornography in the privacy of one’s
own home, appeared to rely primarily on the governmental interest in deterring “the
use of children as subjects of pornographic materials,”⁴⁰ and this interest is not
present with respect to child pornography produced without an actual child. Osborne
v. Ohio also mentioned that “evidence suggests that pedophiles use child
pornography to seduce other children into sexual activity,”⁴¹ and the governmental
interest in deterring this conduct is present with respect to child pornography
produced without an actual child, but Ashcroft found this interest not to be a
legitimate basis to ban such material. Thus, to the extent that H.R. 4623 would ban
possession in one’s home of child pornography produced without an actual child, it
would seem to be unconstitutional.
Denying Child Pornography to Minors.
H.R. 4623 would make it a crime to “provide[ ] or show[ ] to a person below
the age of 16 years any visual depiction that is, or is indistinguishable from, that of
a pre-pubescent child engaging in sexually explicit conduct, any obscene matter, or
any child pornography.” Material in the first category would not necessarily be
obscene, and would not constitute child pornography under Ferber if it did not depict
an actual child. Nevertheless, this provision would apparently be constitutional
because it would not restrict adults’ access to speech, and the Supreme Court has
“recognized that there is a compelling interest in . . . shielding minors from the
influence of literature that is not obscene by adult standards.”⁴²
S. 2511 contains a similar provision. S. 2520 would prohibit providing a minor
(a person under 18, not, as in H.R. 4623 and S. 2511, a person under 16) with any
visual depiction that is, or appears to be, of a minor engaging in sexually explicit
conduct. It would appear to be constitutional for the same reason that the comparable
provisions of H.R. 4623 and S. 2511 would appear to be constitutional.
Conclusion
In Ashcroft v. Free Speech Coalition, the Supreme Court declared
unconstitutional the Child Pornography Prevention Act of 1996 to the extent that it
prohibited material that was produced without the use of an actual child. The only
possible means that the Court explicitly left open for Congress to try to restrict such
material was to ban it, but allow an affirmative defense that the material was
produced without using actual children. Even this approach the Court did not say
would be constitutional, but merely found no need to decide whether it would be.

⁴⁰Id. at 109.
⁴¹Id. at 111.
⁴²Sable Communications of California, Inc. v. Federal Communications Commission, 492
U.S. 115, 126 (1989).

This approach would shift the burden of proof to the defendant on the question
of whether actual children were used in producing the material. If the defendant
could not meet the burden of proof, then he could be punished for child pornography
that might or might not have been produced with an actual minor. The Court,
however, said that “[t]he Government may not suppress lawful speech as a means to
suppress unlawful speech.” This suggests that an affirmative defense would be
unconstitutional if it were not effectively available to all classes of defendant. It
might not effectively be available, however, to individuals charged with mere
possession of child pornography, or to producers of pornography that pre-dated the
CPPA, as these defendants might have “no way of establishing the identity, or even
the existence, of the actors.”
The three bills that this report has examined – H.R. 4623, as passed by the
House, S. 2511, and S. 2520 – would all ban child pornography produced without the
use of an actual child. Though all three bills would allow an affirmative defense, to
the extent that they applied to defendants who had “no way of establishing the
identity, or even the existence, of the actors,” they raise the same questions that the
Court in Ashcroft posed as to the constitutionality of such an approach. Though the
bills would permit a defendant to prove that no minors were used, rather than, as
under the CPPA, that only adult actors were used, this would not appear to eliminate
this problem, and some defendants might be convicted for conduct involving lawful
speech.
Some provisions of the bills, however, appear constitutional. All three bills, for
example, would ban attempts to distribute material in a manner that conveys the
impression that it depicts a minor engaging in sexually explicit conduct, whether or
not it does. This proscription, unlike the one that the Court struck down in Ashcroft,
would not ban any material itself, but would ban only attempts to distribute such
material. All three bills would also make it a crime to provide minors with child
pornography, whether or not it was produced with an actual child. This would appear
constitutional because the Court has found there to be a compelling interest in
shielding minors from any pornography.