## Facts

- Trade and artistic plaintiffs who produce and distribute adult-oriented, nude, and erotic expression brought a pre-enforcement challenge seeking declaratory and injunctive relief against the Attorney General and DOJ.
- The challenge targeted portions of the Child Pornography Prevention Act of 1996 (CPPA), principally 18 U.S.C. §§ 2252A, 2256, expanding “child pornography” beyond depictions of actual minors.
- The contested definitions included images that “appear[] to be” of a minor engaging in sexually explicit conduct and materials marketed or presented to “convey[] the impression” they depict a minor in such conduct.
- The district court upheld the CPPA in full on summary judgment, concluding it was content-neutral, not vague or overbroad, not a prior restraint, and that its affirmative defense did not improperly shift the burden of proof.
- Plaintiffs appealed.

## Issues

1. Whether the First Amendment permits Congress to criminalize sexually explicit visual depictions that do not involve the use of real children, including computer-generated images or depictions of youthful-looking adults.
2. Whether the CPPA’s “appears to be” and “conveys the impression” definitions are unconstitutionally vague and overbroad.

## Decision

- The Ninth Circuit held plaintiffs had standing to bring a pre-enforcement challenge.
- The court held the CPPA was not an unconstitutional prior restraint.
- The court held the phrases “appears to be” (18 U.S.C. § 2256(8)(B)) and “conveys the impression” (18 U.S.C. § 2256(8)(D)) were unconstitutionally vague and overbroad and violated the First Amendment.
- The court severed and struck those phrases while upholding the remainder of the CPPA as constitutional.
- The court declined to decide the constitutionality of the CPPA’s affirmative defense, leaving that question for another case.
- Disposition: affirmed in part and reversed in part.

## Legal Principles

- Depictions are not categorically unprotected as “child pornography” merely because they represent minors; the traditional justification for banning child pornography rests on harm to actual children in production.
- Content-based regulation of speech is subject to strict scrutiny and must be narrowly tailored to serve a compelling governmental interest.
- Statutory terms that turn criminal liability on subjective judgments about whether an image “appears” to show a minor, or on marketing that “conveys the impression” of depicting a minor, risk chilling protected expression and can be void for vagueness and overbreadth.
- Where unconstitutional applications are tied to discrete statutory language, courts may sever the offending phrases and preserve the remainder of the statute.

## Conclusion

The Ninth Circuit held that the CPPA could not constitutionally criminalize “virtual” child pornography through the “appears to be” and “conveys the impression” definitions because those provisions were vague and overbroad, then severed those phrases while leaving the rest of the Act in force.


Free Speech Coal. v. Reno, 198 F.3d 1083 (9th Cir. 1999)