Ninth Circuit Strikes Federal Virtual Child Pornography Law on First Amendment Grounds

The First Amendment prohibits Congress from enacting a statute criminalizing the generation of computer images of fictitious children engaged in imaginary but explicit sexual conduct, the U.S. Court of Appeals for the Ninth Circuit held Dec. 17, widening a split in the circuits. Specifically, the court struck certain language in the Child Pornography Prevention Act of 1996, 18 U.S.C. �2256, prohibiting a “visual depiction” that “is, or appears to be, of a minor engaging in sexually explicit conduct,” and advertising or promotion of such images, as unconstitutionally vague and overbroad, language which was found last month to be constitutional by the Eleventh Circuit in U.S. v. Acheson, 11th Cir., No. 98-3559, Story, J., 11/12/99 (Free Speech Coalition v. Reno, 9th Cir., No. 97-16536, Molloy, J., 11/17/99).

Section 2256(8) defines child pornography as “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct[.]” At issue in the appeal were the definitions contained in subsections (B) and (D). Section 2256(8)(B) bans sexually explicit depictions that appear to be minors. Section 2256(8)(D) bans visual depictions that are “ advertised, promoted, presented, described or distributed in such a manner that conveys the impression” that they contain sexually explicit depictions of minors.