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The U.S. 9th Circuit Court of Appeals announced Monday it will not reconsider a ruling striking down portions of the Child Pornography Prevention Act, which outlawed “virtual” child pornography. The attorney general’s office had appealed the 2-1 panel decision, but after a vote of the full court, the petition for a rehearing en banc was rejected. In December, the 9th Circuit overturned a lower court, saying parts of a statute outlawing both actual and virtual images of child pornography were broadly written and did not show a compelling governmental interest that would override First Amendment concerns. But Judges Kim Wardlaw, Diarmuid O’Scannlain and Thomas Nelson dissented from the vote not to rehear the case. “Whether or not an individual judge agrees with the majority decision, our court should have convened an en banc panel to consider this case because of its exceptional importance,” Wardlaw wrote. “A two-judge majority struck down provisions of a federal statute as unconstitutional when the only other federal courts to rule on the issue have rejected the same constitutional challenges.” The swing vote in Free Speech Coalition v. Reno, 99 C.D.O.S. 9839, was cast by U.S. District Judge Donald Molloy, sitting by designation. Judge Sidney Thomas wrote the majority opinion, while Senior Judge Warren Ferguson wrote the dissent. Both Thomas and Molloy sit in Montana.

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