Child Pornography Produced Without an Actual Child: Constitutionality of 108th Congress Legislation

Report for Congress
Child Pornography Produced
Without an Actual Child:
Constitutionality of
th
108 Congress Legislation
Updated March 31, 2003
Henry Cohen
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

Child Pornography Produced Without an Actual Child:
Constitutionality of 108^th Congress Legislation
Summary
In Ashcroft v. Free Speech Coalition, the Supreme Court declared
unconstitutional the Child Pornography Prevention Act of 1996 (CPPA), P.L. 104-
208, 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.”
This report analyzes the First Amendment issues raised by S. 151, 108^th
Congress, in the versions passed by the Senate and the House. The Senate passed the
version reported by the Senate Committee on the Judiciary (S.Rept. 108-2). The
House version began as H.R. 1161, which, except for its section 10, was adopted as
an amendment (Title V) to H.R. 1104, which the House passed as S. 151, the Child
Abduction Prevention Act.

Contents
The Federal Child Pornography Statute.............................2
Ashcroft v. Free Speech Coalition.................................3^th
S. 151, 108 Congress: Senate-passed and House-passed versions........6
First provision............................................7
Second provision.........................................10
Third provision..........................................12
Fourth provision..........................................14
Fifth provision...........................................15
Sixth provision...........................................15
Additional provisions......................................16

Child Pornography Produced Without an
th
Actual Child: Constitutionality of 108
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
were S. 2520 and S. 2511; the House bill was 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.Rept. 107-526), and passed by the House without further
amendment on June 25, 2002.
In the 108^th Congress, S. 151, the Prosecutorial Remedies and Tools Against the
Exploitation of Children Today Act of 2003 (PROTECT Act) was reported by the
Senate Committee on the Judiciary (S.Rept. 108-2) on February 11, 2003, and passed
by the Senate on February 24, 2003. In the House, on March 27, 2003, the child
pornography provisions of H.R. 1161 were adopted as an amendment (Title V) to
H.R. 1104, which the House passed as S. 151, the Child Abduction Prevention Act.

¹ See Miller v. California, 413 U.S. 15, 24 (1973). See also CRS Report 95-804, Obscenity
and Indecency: Constitutional Principles and Federal Statutes.
² New York v. Ferber, 458 U.S. 747, 764 (1982) (emphasis in original). See CRS Report

95-406, Child Pornography: Constitutional Principles and Federal Statutes.

³ This 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.

⁴ 535 U.S. 234, 122 S. Ct. 1389, 152 L.Ed.2d 403 (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) S. 151, 108^th Congress, in its versions
passed by the Senate and the House.
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

⁵ 18 U.S.C. §§ 2252(a), 2252A(a).
⁶ 18 U.S.C. § 2256(2).
⁷ P.L. 104-208, 110 Stat. 3009-26.
⁸ 18 U.S.C. § 2256(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
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 are¹¹
constitutional because they target “[t]he production of the work, not the content.”
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, as
were the materials in Ferber.”¹²
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 abuse¹³
and exploitation of actual children.” 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

⁹ 18 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.)
¹⁰ 18 U.S.C. §§ 2252(d), 2252A(d).
¹¹ Ashcroft, supra note 4, 122 S. Ct. at 1401; see also id. at 1397.
¹² Id. at 1402; see also id. at 1401.
¹³ Id. at 1397.

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,
“[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.
Chief Justice 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

¹⁴ Id. at 1403.
¹⁵ Id. at 1397.
¹⁶ Id. 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.
¹⁷ Id. at 1400.
¹⁸ Id. at 1411.

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
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.
¹⁹ Id. at 1404-1405.

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 not
involve the use of adult actors who appear to be minors.²⁰ But, if Congress expanded
the affirmative defense to include these two classes of defendants, the CPPA might
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
S. 151, 108^th Congress: Senate-passed and House-passed
versions
This section of the report will summarize five major provisions of S. 151, as
reported by the Judiciary Committee and passed by the Senate, that appear to raise
First Amendment issues, and consider whether they would violate the First
Amendment’s prohibition on Congress’s “abridging the freedom of speech.” At the
end of the discussion of each of the five provisions, we will describe the House-
passed version’s comparable provision. Next we will discuss a provision in the
House-passed version of S. 151 that has no counterpart in the Senate-passed version.
Finally, we will mention additional provisions in both bills.

²⁰ See note 9, supra.
²¹ Id. at 1404 (previously quoted in the text accompanying note 16, supra).
²² Id. at 1407.
²³ Id. at 1405.
²⁴ Id. at 1406.

First provision. Section 3 of the Senate-passed bill would make it a crime
knowingly to “advertise[ ], promote[ ], present[ ], distribute[ ], or solicit[ ] . . . any
material or purported material in a manner that reflects the belief, or that is intended
to cause another to believe, that the material or purported material contains – (i) an
obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a
visual depiction of an actual minor engaging in sexually explicit conduct.”
The two types of material specified in (i) and (ii) – obscenity and child
pornography produced with an actual child – are not, of course, protected by the First
Amendment. If, however, material is not of the type specified in (i) or (ii) – if it is
a visual depiction that is not obscene and is not of an actual minor but appears to be
of an actual minor – then it is protected by the First Amendment. If it is protected by
the First Amendment, then can the fact that a person “distributes” it “in a manner that
reflects the belief, or that is intended to cause another to believe,” that is unprotected
render it unprotected? The answer, as we discuss following the next paragraph,
appears to be “no,” and this provision of the Senate-passed bill therefore would
apparently be unconstitutional insofar as it applies to distribution of protected speech.
There would, however, appear to be no constitutional problem with respect to
the words “advertises,” “promotes,” “presents,” or “solicits” in the provision. This
is because these words would not restrict protected material. To prohibit
advertisements of protected material in a manner that “reflects the belief, or that is
intended to cause another to believe,” that it is unprotected would be to prohibit what
is in effect false advertising.²⁵ False advertising, of course, is not protected by the²⁶
First Amendment.
Prohibiting distribution of protected speech, however, unlike prohibiting false
advertising of it, would restrict protected speech. An argument that this would
nevertheless be constitutional might rely on Ginzburg v. United States, a 1966 case
in which the Supreme Court, by a 5-to-4 majority, found “that the question of
obscenity may include consideration of the setting in which the publications were
presented as an aid to determining the question of obscenity . . . .”²⁷ Considering the
“setting” in which the publications in question were presented, the Court noted that
the publications had been mailed from Intercourse and Blue Ball, Pennsylvania,
solely “for the value their names would have in furthering petitioners’ efforts to sell
their publications on the basis of salacious appeal”; and that “[t]he ‘leer of the²⁸
sensualist’ also permeates the advertising for the three publications.”
The Court found that evidence of the manner in which the publications were
advertised and mailed “was relevant in determining the ultimate question of

²⁵ There appears to be no significant difference between “reflects the belief” and “is
intended to cause another to believe.” Both refer to the manner of advertising, promoting,
etc.
²⁶ Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447
U.S. 557, 566 (1980).
²⁷ 383 U.S. 463, 465-466 (1966).
²⁸ Id. at 467, 468.

obscenity . . . .”²⁹ The first factor that must be considered in determining whether
material is obscene is whether it appeals to the prurient interest, and as to this factor
the Court found that “[t]he deliberate representation of petitioners’ publications as
erotically arousing stimulated the reader to accept them as prurient.”³⁰ The second
factor that must be considered in determining whether material is obscene is its
degree of offensiveness, and here the Court found that “the brazenness of [the
petitioners’] appeal heightens the offensiveness of the publications . . . .”³¹ The third
factor that must be considered in determining whether material is obscene is whether
it has serious literary, artistic, political, or scientific value, and the Court found that
“the circumstances of presentation and dissemination of material are equally relevant
in determining whether social importance claimed for material in the courtroom was,
in the circumstances, pretense or reality – whether it was the basis upon which it was
traded in the marketplace or a spurious claim for litigation purposes.”³²
The Court concluded in Ginzburg that it “perceive[d] no threat to First
Amendment guarantees in thus holding that in close cases evidence of pandering may
be probative with respect to the nature of the material in question . . . .”³³ Evidence
of such pandering “may support the determination that the material is obscene even
though in other contexts the material would escape such condemnation.”³⁴
The Supreme Court applied the “pandering” rationale in two subsequent cases
in the 1970s.³⁵ Its continued validity, however, appears uncertain because the
Supreme Court, also in the 1970s, held in Virginia Pharmacy Board v. Virginia
Consumer Council that truthful, non-misleading commercial speech is protected by
the First Amendment (although to a lesser degree than protected non-commercial
speech).³⁶ The sort of “pandering” that caused the publications in Ginzburg to be
found obscene, in other words, has, since Ginzburg, gained some First Amendment
protection. In one of two post-Ginzburg pandering cases in the 1970s, a dissent
joined by four justices stated that “Ginzburg cannot survive Virginia Pharmacy.”³⁷
Since, the 1970s, the Supreme Court has not addressed the “pandering” rationale, but
it has repeatedly struck down governmental restrictions on commercial speech.³⁸

²⁹ Id. at 470.
³⁰ Id.
³¹ Id.
³² Id. With respect to all three factors, the Court in Ginzburg applied the Roth test for
obscenity, which preceded the current Miller test (see note 1, supra), but the differences
between the tests are immaterial for present purposes.
³³ Id. at 474.
³⁴ Id. at 476.
³⁵ Splawn v. California, 431 U.S. 595 (1977); Pinkus v. United States, 436 U.S. 293, 303-

304 (1978).

³⁶ 425 U.S. 748 (1976).
³⁷ Splawn v. California, supra note 35, at 603 n.2 (Stevens, J., dissenting).
³⁸ See CRS Report 95-815, Freedom of Speech and Press: Exceptions to the First
(continued...)

Consequently, though Ginzburg has not been overturned, its precedential value seems
questionable.
If the “pandering” rationale remains valid, then it might be a basis for a court
to uphold a conviction under the Senate-passed bill for distributing obscene material
that might not be obscene if the defendant had not distributed it “in a manner that
reflects the belief, or that is intended to cause another to believe,” that it was obscene.
But, if the “pandering” rationale remains valid, then this would be the case under
existing obscenity law as well. The “pandering” rationale would not appear to enable
the government to justify a prosecution under the Senate-passed bill that went further
than existing obscenity law by attempting to convict a defendant for distributing
material that was clearly not obscene, merely because the defendant distributed it “in
a manner that reflects the belief, or that is intended to cause another to believe,” that
it was obscene.
Consider, for example, the movie “Carnal Knowledge,” which the Supreme
Court found to be not obscene because it was not “patently offensive.”³⁹ Under the
Senate-passed bill, if a defendant distributed “Carnal Knowledge” “in a manner that
reflects the belief, or that is intended to cause another to believe,” that it contained
“an obscene visual depiction of a minor engaging in sexually explicit conduct,” then
the defendant would be guilty of a crime. But the “pandering” rationale of Ginzburg
allows merely “that in close cases evidence of pandering may be probative” of
obscenity.⁴⁰ “Carnal Knowledge,” because of the Supreme Court decision, is not a
close case; therefore, to distribute it in a pandering manner would not make it
obscene. And, if it is not obscene, then it is protected speech, and the Senate-passed
bill would be unconstitutional to the extent that it would punish the distribution of
protected speech on the ground that the defendant distributed it “in a manner that
reflects the belief, or that is intended to cause another to believe,” that it was obscene.
We have thus far addressed only the Senate-passed bill’s prohibition of
distributing material “in a manner that reflects the belief, or that is intended to cause
another to believe, that the material contains “(i) an obscene visual depiction of a
minor engaging in sexually explicit conduct.” We now address the Senate-passed
bill’s prohibition of distributing material “in a manner that reflects the belief, or that
is intended to cause another to believe,” that the material contains “(ii) a visual
depiction of an actual minor engaging in sexually explicit conduct.” As to this
material, the “pandering” rationale would be of no relevance. If the “pandering”
rationale remains relevant to determinations of obscenity, it does so because
determinations of obscenity are made by a subjective test that weighs a publication’s
degree of prurience, offensiveness, and literary, artistic, political, or scientific value;
and pandering, the Court held in Ginzburg, may be probative in weighing these
factors. Determinations of child pornography, by contrast, are made by an objective
test: does the material visually depict an actual child engaged in sexually explicit

³⁸ (...continued)
Amendment.
³⁹ Jenkins v. Georgia, 418 U.S. 153 (1974).
⁴⁰ See text accompanying note 33, supra.

conduct? The manner in which the material is distributed cannot affect the answer
to this question, and therefore is not relevant to whether it is child pornography. If
the material is not child pornography, then the Senate-passed bill apparently could
not constitutionally punish it because of the manner in which it is distributed.
To summarize our analysis of this provision, it would appear constitutional to
make it a crime to advertise, promote, present, or solicit “in a manner that reflects the
belief, or that is intended to cause another to believe,” that the material constitutes
obscenity, or child pornography produced with an actual child. It would appear
unconstitutional, however, to make it a crime to distribute protected speech “in a
manner that reflects the belief, or that is intended to cause another to believe,” that
the material constitutes obscenity, or child pornography produced with an actual
child. If the “pandering” rationale of Ginzburg remains valid, then the Senate-passed
bill would constitutionally permit the prosecution of some speech that would be
obscene by virtue of the “pandering” rationale, but it would not add anything to
existing law in that respect.
The House-passed bill has a comparable provision in section 503, but it would
prohibit advertising, promoting, presenting, or describing, whereas the Senate-passed
bill would prohibit advertising, promoting, presenting, distributing, or soliciting. The
House-passed bill thus would not prohibit distributing, and therefore would not have
the apparent constitutional problem that the Senate-passed bill would have. In
addition, whereas the Senate-passed bill would prohibit advertising, etc., of material
in a manner to cause a person to believe that it is an obscene depiction of a minor or
is child pornography produced with an actual child, this provision of the House-
passed bill would cover only the latter.
Second provision. Section 3 of the Senate-passed bill would make it a crime
knowingly to “distribute[ ], offer[ ], send[ ], or provide[ ] to a minor any visual
depiction . . . [that] is, or appears to be, of a minor engaging in sexually explicit
conduct . . . for purposes of inducing or persuading a minor to participate in any
activity that is illegal.” This provision would make it illegal to distribute some
protected speech to minors, namely visual depictions, produced without using an
actual minor, of a minor engaging in sexually explicit conduct. But it would make
distribution of such material illegal only if done for an illegal purpose, and the
government may prohibit inducing or persuading, by any means, a minor (or an adult)
to participate in an activity that is illegal. Thus, Congress could prohibit individuals
from using, for example, candy or tickets to a ball game, as well as visual depictions,
to induce or persuade a minor to participate in an illegal activity.
But it seems uncertain whether Congress may make it a crime to induce or
persuade, only by a means that restricts protected speech, a person to participate in
an illegal activity. In Simon & Schuster, Inc. v. Members of the New York State
Crime Victims Board, the Supreme Court struck down New York’s “Son of Sam”
statute, which required that an accused or convicted criminal’s income from works

describing his crime be deposited in an escrow account and made available to
victims of the crime and the criminal’s other creditors.⁴¹ The Court wrote:
We conclude simply that in the Son of Sam law, New York has singled out
speech on a particular subject for a financial burden that it places on no other
speech and no other income. The State’s interest in compensating victims from
the fruits of crime is a compelling one, but the Son of Sam law is not narrowly
tailored to advance that objective. As a result, the statute is inconsistent with the⁴²
First Amendment.
Although the Court nevertheless stated that it was not basing its decision on the⁴³
statute’s underinclusiveness (its not including income from other sources), its
conclusion just quoted suggests that, had the statute required the seizure of income
from non-speech sources as well as from speech sources, it would, at least, have had
one less constitutional difficulty.
Analogously, in R.A.V. v. City of St. Paul, the Court struck down an ordinance
that prohibited the placing on public or private property of a symbol, such as “a
burning cross or Nazi swastika, which one knows or has reasonable grounds to know
arouses anger, alarm or resentment in others, on the basis of race, color, creed,
religion or gender.”⁴⁴ The Supreme Court held that, even construing the ordinance⁴⁵
to apply only to “fighting words,” which are not protected by the First Amendment,
the ordinance was unconstitutional because it did not ban all fighting words, but
singled out some on the basis of hostility to their content. (The ordinance banned
fighting words that insult “on the basis of race, color, creed, religion or gender,” but
not “for example, on the basis of political affiliation, union membership, or
homosexuality. . . .”)⁴⁶ If the government may not ban only some fighting words,
then, arguably, it may not ban only a speech-related means of inducing or persuading
minors to engage in illegal activities.
The government, however, may prohibit distribution to minors of some, if not
all, visual depictions that appear to be of a minor engaging in sexually explicit
conduct, and it may prohibit distribution of such visual depictions even if the
distribution is not for the purpose of inducing or persuading a minor to engage in an
illegal activity. It may do so because the Supreme Court has “recognized that there
is a compelling interest in . . . shielding minors from the influence of literature that

⁴¹ 502 U.S. 105 (1991).
⁴² Id. at 123.
⁴³ Id. at 122, n* (the Court uses an asterisk instead of a number presumably because this is
the only footnote in the opinion).
⁴⁴ 505 U.S. 377 (1992).
⁴⁵ See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)(fighting words are “those which
by their very utterance inflict injury or tend to incite an immediate breach of the peace”).
⁴⁶ R.A.V., supra note 44, 505 U.S. at 391. The Supreme Court has heard arguments in
another cross-burning case, Virginia v. Black, No. 01-1107, and is expected to issue a
decision this term.

is not obscene by adult standards.”⁴⁷ Thus, the Senate-passed bill might avoid the
possible constitutional problem of banning only speech-related means of inducing or
persuading minors to engage in illegal activities by simply banning distribution of the
material to minors, regardless of the purpose of the distribution.
The House-passed bill has a comparable provision in section 505, but it would
prohibit providing or showing to a person below the age of 16 (the Senate-passed bill
uses “minor,” which means under 18) material that is obscene or child pornography
(the Senate-passed bill would include only the latter). The House-passed bill would
not, like the Senate-passed bill, limit the offense to “for purposes of inducing or
persuading a minor to participate in any activity that is illegal.” It would thereby
avoid the possible constitutional problem mentioned above.
Third provision. Section 3 of the Senate-passed bill would rewrite the
affirmative defense provision of the CPPA, which 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.” The affirmative defense provision of the Senate-passed bill would
require the defendant to prove that each person used in producing the alleged child
pornography was an adult or that none was a minor, except that to prove that none
was a minor would not be an affirmative defense in a prosecution that involves child
pornography as described in 18 U.S.C. § 2256(8)(C), which covers images of an
actual child “morphed” to make it appear as if the child is engaging in sexually
explicit conduct. The defendant would no longer have to prove anything with regard
to how he advertised, promoted, presented, described, or distributed the material. In
addition, the affirmative defense in the Senate-passed bill, unlike the one in the
CPPA, would apply to prosecutions for possession of child pornography under 18
U.S.C. § 2252A(a)(5).
The change from having to prove that each actor was an adult, to having the
option to prove that none was a minor, 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.”⁴⁸
Would the Senate-passed bill’s changes to the affirmative defense make it
constitutional? In Ashcroft, the Court found the affirmative defense in the CPPA

⁴⁷ Sable Communications of California, Inc. v. Federal Communications Commission, 492
U.S. 115, 126 (1989). We said that the government may prohibit distribution to minors of
“some, if not all,” such material because the Supreme Court seems to be becoming less
absolute in viewing the protection of all minors (regardless of age) from all indecent
material (regardless of its educational value and parental approval) to be a compelling
governmental interest. See, T^HEC^ONSTI^TUTI^{ON OF THE}U^NI^TEDS^{TATES OF}A^M^E^RI^CA:
A^NALYSI^S^ANDI^NTERP^R^ETATI^ON, p. 1161, n.61 (2000 Supp.).
⁴⁸ Previously quoted in the third paragraph of the text accompanying note 19, supra.

“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,”⁴⁹ 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.”⁵⁰ The Senate-passed bill would eliminate both of these problems. But this
would not necessarily mean that its affirmative defense would be constitutional,
because the Court in Ashcroft did not say that eliminating these two problems would
be sufficient. Rather, it said that it “need not decide” 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 defense⁵¹
can lead to a felony conviction.
All these facts would remain the case under the Senate-passed bill. 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.”⁵² The affirmative defense in the Senate-passed bill would arguably not
prevent the suppression of lawful speech in some cases.
The House-passed bill has a comparable provision in 502(d), but it would
require the defendant to prove that the production of the alleged child pornography
did not involve the use of a minor; it would not include the Senate-passed bill’s
option of proving that each person used was an adult. Under the House-passed bill,
the affirmative defense would not apply in cases that involve child pornography as
defined in 18 U.S.C. § 2256(8)(A) or (C). Section 2256(8)(A) covers cases that uses
an actual child, and the unavailability of an affirmative defense might go without
saying because, as the government would have the burden of proving that an actual
child was used, it follows that the defendant would not have the burden of proving
that one was not used. Section 2256(8)(C) covers cases of a “morphed” child. The

⁴⁹ Id. See note 9, supra.
⁵⁰ Id. 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.
⁵¹ Previously quoted in the second paragraph of the text accompanying note 19, supra.
⁵² Previously 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.”

House-passed bill differs from the Senate-passed bill with respect to these cases in
that the Senate-passed bill but not the House-passed bill would permit the defendant
to avoid conviction by proving that each person used was an adult.
Fourth provision. Section 5 of the Senate-passed bill would revise the
definition in 18 U.S.C. § 2256 of “minor,” which is “any person under the age of
eighteen years,” to add that the term “shall not be construed to require proof of the
actual identity of the person.”
Section 5 would also revise the definition of “sexually explicit conduct,” which
is what a visual depiction must depict an actual minor to be engaged in for it to be
illegal under 18 U.S.C. § 2252 (or, as discussed below, what, under the Senate-
passed bill, virtual child pornography must depict for it to be illegal under 18 U.S.C.
§ 2252A). Under its current definition, “sexually explicit conduct” includes, among
other things, “simulated” sexual intercourse. Under the Senate-passed bill,
depictions of simulated sexual intercourse would be prohibited only if they are
“lascivious” and only if “the genitals, breast, or pubic area of any person is
exhibited.” No distinction is drawn between the male and female versions of these⁵³
parts of the body.
Section 5 would next strike paragraphs (B) and (D) of the definition of “child
pornography,” which are the paragraphs that Ashcroft declared unconstitutional. It
would replace current paragraph (B) with a new paragraph (B) that would define
“child pornography” to include visual depictions whose production “involves the use
of an identifiable minor engaging in sexually explicit conduct.” At first glance, this
provision might seem redundant of paragraph (A), which defines “child
pornography” to include visual depictions whose production “involves the use of a
minor engaging in sexually explicit conduct.” But section 5 of the Senate-passed bill
would also add a new definition of “identifiable minor” (without substantively
altering the existing definition) to include “virtual” child pornography. Section 5
provides that “identifiable minor” –
means a computer image, computer generated image, or digital image – (i) that
is of, or is virtually indistinguishable from that of, an actual minor; and (ii) that
depicts sexually explicit conduct as defined in paragraph (2)(B).
Paragraph (2)(B) is the portion of the definition of “sexually explicit conduct”
that covers various “actual or simulated” sexual activities. Section 5 provides that
“virtually indistinguishable” –
(A) means that the depiction is such that an ordinary person viewing the
depiction would conclude that the depiction is of an actual minor; and (B) does
not apply to depictions that are drawings, cartoons, sculptures, diagrams,

⁵³ The Senate-passed bill would make this change in the course of restructuring
§ 2256(2)(A) through (E) into § 2256(2)(A)(i) through(v) and § 2256(2)(B)(i) through (iii).
Section 2256(2)(A) currently begins “‘sexually explicit conduct’ means actual or
simulated – .” The Senate-passed bill would strike “means actual” and insert “means – .”
It presumably means to strike “or simulated” as well, but leaves these words floating. It then
covers “actual or simulated” in § 2256(2)(B), with “actual” apparently redundant.

anatomical models, or paintings depicting minors or adults or reproduction of
such depictions.
The Senate-passed bill’s inclusion of virtual child pornography that depicts an
image that is virtually indistinguishable from an actual child would not, given
Ashcroft, be constitutional. The majority in Ashcroft held it unconstitutional to
prohibit any non-obscene material that does not portray an actual child engaged in
sexually explicit conduct.
The House-passed bill has a comparable provision in section 502(a), which
would define “child pornography” to include a computer-generated image that is
“indistinguishable” from that of a minor engaging in sexually explicit conduct, and
18 U.S.C. § 1466A, which would be created by section 504, would define
“indistinguishable” to mean “virtually indistinguishable.”
Fifth provision. Section 6 of the Senate-passed bill would enact 18 U.S.C.
§ 2252B, which would make it a crime knowingly to “produce[ ], distribute[ ],
receive[ ], or possess[ ]⁵⁴ . . . a visual depiction of any kind, including a drawing,
cartoon, sculpture, or painting, that –
(1)(A) depicts a minor engaging in sexually explicit conduct; and (B) is obscene;
or
(2)(A) depicts an image that is, or appears to be, of a minor engaging in [various
sexual activities]; and (B) lacks serious literary, artistic, political, or scientific
value.
Number (1) of these prohibitions would be constitutional because it would be
limited to obscene material. Number (2) of these prohibitions would be
unconstitutional to the extent that it banned material that did not portray an actual
minor. The fact that material lacks serious literary, artistic, political, or scientific
value means that it satisfies one of the three prongs of the Miller test for obscenity,
but does not make it obscene or otherwise less than fully protected by the First
Amendment.
The House-passed bill has a comparable provision in section 504, which would
enact 18 U.S.C. § 1466B, which would differ from the Senate-passed bill’s 18 U.S.C.
§ 2252B in that the House-passed bill would prohibit only obscene depictions and
thereby would avoid the constitutional problem with number (2) in the Senate-passed
bill.
Sixth provision. Section 504 of the House-passed bill would enact 18 U.S.C.
§ 1466A, which would make it a crime knowingly to “produce[ ], distribut[ ],
receive[ ], or possess[ ],” with or without intent to distribute, “a visual depiction that
is, or is indistinguishable from, that of a pre-pubescent child engaging in sexually
explicit conduct.” Under Ashcroft, this provision would be unconstitutional as

⁵⁴ Possession is prohibited with or without intent to distribute. If the defendant had no intent
to distribute, then he would be allowed an affirmative defense substantively the same as the
one at 18 U.S.C. § 2252(c).

applied to depictions produced without the use of an actual minor, because Ashcroft
held that non-obscene depictions produced without an actual minor are protected by
the First Amendment, and found no exception based on the age of the minor
depicted.
The Senate-passed bill has no comparable provision.
Additional provisions. The Senate-passed and House-passed versions of
S. 151 include other provisions that this report will not examine because they do not
appear to raise First Amendment issues. In the Senate-passed bill, these include
provisions that concern the admissibility of evidence that could identify a minor
(§ 4); adding “digital image” to the recordkeeping requirement of 18 U.S.C. § 2257
(§ 7); amending section 227 of the Victims of Child Abuse Act of 1990, 42 U.S.C.
§ 13032 (§ 8); amending 18 U.S.C. § 2702, concerning the disclosure of electronic
communications (§ 9); using a minor to produce child pornography outside the
United States (§ 10); creating a civil remedy for persons aggrieved by a violation of
the child pornography prohibitions in18 U.S.C. § 2252A; sentence enhancements
(§§ 12, 13); appointing additional trial attorneys to prosecute child pornography
(§ 14); requiring the Attorney General to report to Congress on the subject (§ 14);
reviewing the sentencing guidelines (§ 14); authorizing the interception of
communications in the investigation of sexual crimes against children (§ 15); and
amending the investigative authority relating to child pornography (§ 16).
Other provisions of the House-passed bill address using a minor to produce
child pornography outside the United States (§ 506); sentence enhancements (§ 507);
amending section 227 of the Victims of Child Abuse Act of 1990, 42 U.S.C. § 13032
(§ 508(a)); amending 18 U.S.C. § 2702, concerning the disclosure of electronic
communications (§ 508(b)); amending the investigative authority relating to child
pornography (§ 510); authorizing the interception of communications in the
investigation of sexual crimes against children (§ 511); and requiring the Attorney
General to report to Congress detailing the times that the Department of Justice has
inspected the records of producers of materials regulated pursuant to 18 U.S.C.
§ 2257 and 28 C.F.R. § 75 (§ 512).⁵⁵

⁵⁵ See CRS Report RS21468, Child Pornography: Side-by Side Comparison of the Senate-
passed and House-passed Versions of S. 151, 108^th Congress.