Page

THE AMICI 1

APPENDIX A-1

American Booksellers Association, Inc. v. Hudnut,
771 F.2d 323 (7th Cir. 1985); aff’d 475 U.S. 1001 (1986) 10, 11

Baggett v. Bullitt, 377 U.S. 360 (1964) 19

Boos v. Barry, 485 U.S. 312 (1988) 7, 8, 10

Brandenburg v. Ohio, 395 U.S. 444 (1969) 12, 13

City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) 7, 8

Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978),
cert. denied, 439 U.S. 916 (1978) 12, 13

Cramp v. Board of Public Instruction, 368 U.S. 278 (1961) 18

Forsyth County, Georgia v. The Nationalist
Movement, 505 U.S. 123 (1992) 7, 8, 9

Free Speech Coalition v. Reno, No. C 97-0281VSC,
1997 WL 487758 (N.D. Cal. Aug. 12, 1997) 6, 13, 14, 17

Grayned v. City of Rockford, 408 U.S. 104 (1972) 18, 19

Kolender v. Lawson, 461 U.S. 352 (1983) 18

Miller v. California, 413 U.S. 15 (1973) 2, 14

New York v. Ferber, 458 U.S. 747 (1982) passim

Regina v. Hicklin, L.R. 3 Q.B. 360 (1868) 12

Reno v. American Civil Liberties Union, 117 S. Ct. 2329 (1997) 7

Roth v. United States, 354 U.S. 476 (1957) 13

Smith v. California, 361 U.S. 147 (1959) 19, 21

United States v. Knox, 32 F.3d 733 (3d Cir. 1995),
cert. denied, 115 S. Ct. 897 (1994) 3

United States v. X-Citement Video, 115 S. Ct. 464 (1994) 4, 15, 16, 20, 21

Ward v. Rock Against Racism, 491 U.S. 781 (1989) 7, 8

18 U.S.C.A. § 2256(8)(B)-(D) (West Supp. 1997) 18

Dennis Howitt, Pornography and the paedophile: Is it criminogenic?
68 BRITISH JOURNAL OF MEDICAL PSYCHOLOGY 15 (1995) 12

S. Rep. No. 104-358 (1996) 6, 9, 16

SAN FRANCISCO CHRONICLE, August 3, 1997 17

THE AMICI

The American Booksellers Foundation for Free Expression, Association of American Publishers, Directors Guild of America, Freedom to Read Foundation, International Periodical Distributors Association, Periodical and Book Association of America, Inc., Publishers Marketing Association, Video Software Dealers Association and General Media Communications, Inc. submit, on consent of the parties, this joint brief amicus curiae urging that this Court reverse the decision of the District Court below.

INTERESTS AND CONCERNS
         OF THE AMICI          

Amici and their members (hereinafter "amici") publish, produce, direct, distribute, sell and loan books, magazines, videos, works of art, motion pictures, and printed materials of all types, including those that are scholarly, literary, artistic, scientific and entertaining. They are the essential intermediaries between the creators and the consumers of artistic and literary materials. Amici do not own what are commonly referred to as adult retail stores. Amici do, however, direct, distribute and sell mainstream materials that may include photographs or depictions of young adults engaged in sexual conduct. Moreover, amici direct, distribute and sell a wide range of provocative, controversial non-sexual material that is nevertheless potentially threatened by the misguided reasoning employed by the district court. Furthermore, defending controversial, or what some may consider to be distasteful or even abhorrent, speech is sometimes required in order to vindicate the core First Amendment principle of toleration for diverse viewpoints. Amici therefore have a significant interest in the resolution of the issues before the Court and a profound concern with the trial court’s misguided decision affirming the constitutionality of the federal Child Pornography Prevention Act of 1996 ("CPPA").

Sexual exploitation of children is illegal. Accordingly, visual images that are otherwise constitutionally-protected may properly be subject to criminal sanction if they involve minors. However, amici, who include mainstream providers of speech in a variety of forums and media, believe that the CPPA and the reasoning of the trial court in upholding it, results in an unconstitutional ban of speech that is protected by the First Amendment.

The CPPA has taken material declared by the U.S. Supreme Court to be protected by the First Amendment; defined it in subjective terms which have a chilling effect on mainstream creators, publishers, distributors and retailers; banned it; and added an illusory affirmative defense -- purportedly for the benefit of those disseminating First Amendment-protected material -- which in effect impermissibly shifts the burden of proof, eliminates the protection of a scienter requirement and utterly fails to protect the First Amendment rights of amici and others.

Prior to the decision of the Supreme Court in New York v. Ferber, 458 U.S. 747 (1982), the only material of sexual content that was not protected under the First Amendment was material which was obscene under the three-part test of Miller v. California, 413 U.S. 15 (1973). In Ferber, the Supreme Court, after weighing some of the special harms to minors likely to occur in connection with the creation of child pornography, held that child pornography was, like obscenity, not protected by the First Amendment even though the child pornography did not qualify as obscene under the Miller test. Ferber makes it abundantly clear that this new, unprotected category of child pornography was created by the Court specifically to help combat sexual abuse of children in the creation of sexually explicit materials and was, therefore, limited to depictions of actual minors engaging in sexually explicit activities.

The CPPA, inter alia, bans material which depicts sexual acts or exhibition of the genitals by an adult who "appears to be" a minor, as well as non-photographic depictions (such as drawings) of a person "who appears to be" a minor, even if the depiction is based solely on the imagination of the artist. Since such material is neither obscene, nor child pornography as defined by Ferber, it is protected by the First Amendment. To uphold the CPPA’s prohibition of this First Amendment-protected material, the trial court wrongly evaluated the CPPA as a time, place and manner restriction (such as zoning regulations) aimed at curbing the use of child pornography for pedophiles. The court thereby erroneously defined away the blatantly content-based -- and thus presumptively unconstitutional -- nature of the CPPA. The district court’s application of these content-neutral time, place and manner concepts to an absolute ban of a specific category of constitutionally-protected materials threatens the constitutional bulwarks against the suppression of controversial speech because of the hypothesized undesirable effects of such speech.

The government and the legislators who voted to pass this law have asserted that the CPPA will further the goal of protecting minors by prohibiting material that may "whet a pedophile’s appetite" and may also be used to lure children into performing sexual acts. To balance the policy of protecting children by means of criminal sanction and the constitutionally-compelled presumption against restricting expressive activity, the United States Constitution requires that creators, distributors and sellers not be subject to criminal prosecution unless they knew they were handling materials depicting children engaged in sexual conduct. The decision in United States v. X-Citement Video, 115 S.Ct. 464 (1994) affords mainstream distributors and sellers this clear and ascertainable test in order to conduct their businesses without inadvertent criminal exposure, while still sanctioning those who knowingly traffic in child pornography. The inclusion in the child pornography provisions of material which "appears to be" of a minor or "conveys the impression that" a minor is involved not only goes beyond the limits set forth in Ferber, but also creates a level of subjectivity which imposes an intolerable burden on amici. The unanswered questions raised by the CPPA are: "Appears" to whom? "Conveys" to whom? These terms are too vague to withstand constitutional scrutiny.

The chilling effect of the CPPA is real and substantial. Even if businesses undertook the enormous and practically impossible investment of monitoring every page of every item, they would still risk misguessing a performer’s perceived age and would be forced to err on the side of restricting legally-protected materials depicting adults. More important to amici, however, the threat to the First Amendment imposed by the ruling below, which improperly shifts scrutiny from the protected speech restricted by the challenged statute to the purported "secondary" effects of that speech on minors, is also real and substantial. Such analysis, if not squarely rejected by this Court, could be employed to endorse the constitutionality of a limitless array of restrictions on controversial speech, gutting the First Amendment in the process. In short, amici urge this Court to protect not child pornography but the First Amendment.

1. THE CPPA VIOLATES THE FIRST AMENDMENT
1. A Content-Based Regulation of Protected Material
   is Not Rendered Content-Neutral By Focusing on
   the Possible Impact on Readers and Viewers, and
   Labeling This Impact a Secondary Effect

The trial court reasoned, based on language taken from a zoning and other time, place and manner cases which are inapplicable to criminal prohibitions on speech, that, because the CPPA was passed "in order to prevent the secondary effects of the child pornography industry," the Act is content-neutral. Free Speech Coalition v. Reno, No. C 97-0281VSC, 1997 WL 487758, at *4 (N.D. Cal. Aug. 12, 1997). This reasoning flies in the face of prior decisions and creates a gaping hole in the First Amendment for which there is no precedent.

Congress’ explicit intent in enacting the CPPA was to expand the definition of child pornography and to criminalize and ban all forms of this expanded category of material defined as child pornography. The basis of this expansion was the belief of the Act’s supporters that (1) "[c]hild pornography stimulates the sexual appetites and encourages the activities of child molesters and pedophiles, who use it to feed their sexual fantasies," and (2) it may sometimes be used "as a device to break down the resistance and inhibitions of their victims" by persuading children that the depicted sexual activity is a normal practice and engaged in by other children. See S. Rep. No. 104-358, at 12 (1996). Assuming these assertions to be true, it clearly is targeting the reaction of certain viewers to this material that is the central purpose of the CPPA. That purpose is inconsistent with the First Amendment. The Supreme Court has held that "[l]isteners’ reaction to speech is not a content-neutral basis for regulation." Forsyth County, Georgia v. The Nationalist Movement, 505 U.S. 123, 134 (1992). Although the government argues that the CPPA is aimed at eliminating the use and purported "secondary" effects of this expanded class of child pornography, a proper analysis under the First Amendment demonstrates that the CPPA actually bans a category of speech because of the direct (not secondary) impact of the material’s content on certain viewers. As such, it plainly is not content-neutral.

Although eliminating what were thought to be the effects of the broadened category of child pornography on children may have been the impetus behind the CPPA, for First Amendment purposes the well-established test is whether the restriction is content-based, regardless of its motive. See Boos v. Barry, 485 U.S. 312, 335-336 (1988) (opinion of Brennan, J. concurring). "The traditional approach sets forth a bright-line rule: any restriction on speech the application of which turns on the content of the speech is a content-based restriction regardless of the motivation that lies behind it." Id. Hence, one must focus not on the legislative motivation behind the regulation (i.e., reducing sexual abuse of children by pedophiles), but rather on the plain language of the statute to determine whether or not the restriction singles out certain speech based on its content. If the regulation is aimed at the impact of a specific category of speech on its listeners or viewers, it is not content-neutral and cannot be properly analyzed as a form of time, place, and manner regulation. Reno v. American Civil Liberties Union, 117 S.Ct. 2329, 2342-2343 (1997) (citing City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46 (1986)).

In finding the CPPA to be constitutionally permissible, the district court relied on Ward v. Rock Against Racism, 491 U.S. 781 (1989) and Renton, supra. Those were cases in which the Supreme Court upheld reasonable time, place and manner restrictions of protected speech, focusing on the secondary effects of the speech at issue. Those cases involved a limited geographical restriction (Renton) and a sound volume restriction (Ward); they did not impose an absolute nationwide ban on the speech at issue. In each of those cases, the Supreme Court specifically stated that the regulated First Amendment material remained available and had not been absolutely banned. (Ward, 491 U.S. at 791 (requiring "ample alternative channels"); Renton, 475 U.S. at 53). At issue in Renton were regulations providing that "adult" films could be shown only in particular geographic zones. That zoning regulation, however, indisputably was focused on secondary effects and not on the direct impact of the speech on its audience. "The content of the films being shown inside the theaters was irrelevant and was not the target of the regulation." Boos, 485 U.S. at 320 (discussing Renton). The same cannot be said for the CPPA: its primary target is the reaction of certain viewers to the content of the material it proscribes. Thus, unlike the case in Renton, the content of the material banned by the CPPA is actually of the utmost relevance. As the Supreme Court has explained:

So long as the justifications for regulation have nothing to do with content, i.e., the desire to suppress crime has nothing to do with the actual films being shown inside adult movie theaters, we concluded that the regulation was properly analyzed as content neutral.

Regulations that focus on the direct impact of speech on its audience present a different situation. Listeners’ reactions to speech are not the type of "secondary effects" we referred to in Renton.

Boos, 485 U.S. at 320-321 (emphasis added).

In Forsyth County v. The Nationalist Movement, supra, the Supreme Court considered an ordinance that required persons to obtain a permit for parades and assemblies. The regulation allowed a government administrator to vary the fee for the permit to reflect the estimated cost of maintaining public order. In response to a challenge that the regulation violated the First Amendment by vesting unbridled discretion in a government official, the defendant argued that the law was content-neutral because, although the cost of policing related to the content of the speech, it was aimed only at a secondary effect -- the cost of maintaining public order. 505 U.S. at 134. The Court responded by stating, "It is clear, however, that, in this case, it cannot be said that the fee’s justification `ha[s] nothing to do with content.’ The costs to which petitioner refers are those associated with the public’s reaction to the speech." Id. (citing Ward, 491 U.S. at 792). The Forsyth Court found that the fee was a content-based regulation because "[l]isteners’ reaction to speech is not a content-neutral basis for regulation." 505 U.S. at 134.

Precisely the same analysis dictates finding the CPPA to be a content-based restriction on speech. Although the court below found that the ultimate target of the CPPA is the secondary effects on children of the newly expanded category of child pornography, it cannot be said that the justification for the regulation has nothing to do with the content of the material. In fact, the desire to prevent the sexual abuse of children by pedophiles using child pornography has everything to do with the actual depictions contained in the prohibited material (i.e., its content). That the CPPA is targeted at the direct impact of the proscribed speech on the viewer could not be more clear. The stated motivations underlying the CPPA include the notions that child pornography "stimulates the sexual appetites and encourages the activities of child molesters and pedophiles," and that children "can sometimes be persuaded to engage in sexual activity with an adult by viewing depictions of other children participating in such activity." S. Rep. No. 104-358, at 12-13. These clearly are reactions to child pornography by some viewers, and it is these such reactions that the CPPA is aimed at eliminating, albeit in an effort to protect children. Just because a secondary effect is the ultimate target does not mean that a regulation of such speech has nothing to do with content. Indeed, in this situation, it would be ludicrous to claim that the content of the material is irrelevant. Unlike the secondary effects referred to in Renton, it is precisely the reaction of certain viewers to the actual content of the material that the CPPA is targeting. "The emotive impact of speech on its audience is not a ‘secondary effect.’" Boos, 485 U.S. at 321. As such, the district court’s finding that the CPPA is content-neutral is wrong as a matter of law.

In an opinion bearing on the same issue, the Seventh Circuit invalidated a city ordinance that prohibited pornography depicting women in submissive or degrading ways. American Booksellers Association, Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985); aff’d 475 U.S. 1001 (1986). The city justified the ordinance "on the ground that pornography affects thoughts. Men who see women depicted as subordinate are more likely to treat them so." Id. at 328. While recognizing that "[t]here is much to this perspective," the court of appeals found that the ordinance discriminated on the basis of the content of the speech and violated the First Amendment. Id. Judge Easterbrook explained that, although the court accepted the premises of the legislation that depictions of subordination tend to perpetuate subordination which does in fact harm women,

this simply demonstrates the power of pornography as speech. All of these unhappy effects depend on mental intermediation. Pornography affects how people see the world, their fellows, and social relations. If pornography is what pornography does, so is other speech.

Id. at 329. Thus, because the ordinance prohibited an entire category of speech based on the effect it has or may have on its listeners, the court found that it violated the First Amendment. That ruling was summarily affirmed by the Supreme Court.

The only real distinction here is that the government has passed a law that prohibits a category of speech because of its effect on certain viewers and resulting in harm to children as opposed to women, as in Hudnut. However, the reasoning and holding of Hudnut is directly on point here. As Judge Easterbrook explained, with regard to pornography subordinating women:

Sexual responses often are unthinking responses, and the association of sexual arousal with the subordination of women therefore may have a substantial effect. But almost all cultural stimuli provoke unconscious responses. Religious ceremonies condition their participants. Teachers convey messages by selecting what not to cover; the implicit message about what is off limits or unthinkable may be more powerful than the messages for which they present rational argument. Television scripts contain unarticulated assumptions. People may be conditioned in subtle ways. If the fact that speech plays a role in the process of conditioning were enough to permit governmental regulation, that would be the end of freedom of speech.

771 F.2d at 330.

This finding is equally applicable to the CPPA: if sexually explicit work not involving the use of actual children can be banned because of its effects on certain viewers, then the floodgates have been opened; all regulations of speech could be said to be content-neutral. The government could regulate any category of speech which could be deemed to have some assertedly undesirable effect on listeners. If a study found that love songs or romantic films stimulate sexual intercourse between young unmarried persons, then under the trial court’s reasoning a ban on love songs or romantic films to reduce child pregnancy would be content-neutral and not violate the First Amendment.

A recent study found that "child pornography rarely feature[d] in [pedophiles’] lives" and that ""[m]ost paedophiles seem not attracted by child pornography." In fact, some offenders use non-pornographic depictions of children such as mail order clothing catalogues, licit magazines and television programs to stimulate their sexual fantasies. Dennis Howitt, Pornography and the paedophile: Is it criminogenic? 68 BRITISH JOURNAL OF MEDICAL PSYCHOLOGY 15, 24 (1995). Applying the trial court’s misguided reasoning, the government could prohibit all such catalogues, magazines and television programs. This would obviously not be constitutionally permissible.

It has long been accepted that unless speech incites immediate and direct harm, it does not fall outside the penumbra of the First Amendment simply because it is found offensive by some or affects the thoughts of others. See, e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969) (Ku Klux Klan may communicate their racist beliefs); Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978), cert. denied, 439 U.S. 916 (1978) (Nazis permitted to parade through area largely populated by Jews). When material does not involve the use of actual minors in its production, it cannot be banned simply because of its effect on certain viewers. In other words, in going beyond the rationale accepted in Ferber for deeming child pornography unprotected -- the harm to minors used to create the materials -- Congress exceeded the limitations imposed by the First Amendment.

Attempting to regulate the effect of a category of material on a particular class of listeners not only renders a law content-based and presumptively violative of the First Amendment, it also espouses the long-rejected 1868 holding of Regina v. Hicklin, L.R. 3 Q.B. 360. Hicklin set forth the early leading standard of obscenity, which allowed material to be judged based on the effect of isolated excerpts upon particularly susceptible persons. However, in Roth v. United States, 354 U.S. 476, 489 (1957), the Supreme Court held that, because the Hicklin test "might well encompass material legitimately treating with sex, . . . it must be rejected as unconstitutionally restrictive of the freedoms of speech and press." Congress made clear that the rationale underlying the CPPA is based on the alleged effect that depictions of adults of youthful appearance engaged in sexual conduct may have on two classes of particularly susceptible viewers: (1) pedophiles and (2) children being persuaded to engage in sexual activity. However, Roth dictates that the reactions of these particular viewers to certain material cannot be used as a basis for banning an entire category of speech.

The CPPA permits a blanket ban on an entire category of speech -- speech that is protected because it is not obscene and does not involve the use of actual children. As such, the CPPA is a content-based restriction, that cannot survive strict scrutiny. Although the district court correctly noted that the government has a compelling interest in protecting minors (Free Speech Coalition, 1997 WL 487758, at *4), it does not have a compelling interest in protecting them against the putative effects of non-obscene sexual materials that do not depict actual minors, any more than it has a compelling interest in proscribing the effects of racist speech (Collin) or most violent speech (Brandenburg). Even were the government’s interest in this case compelling, the CPPA would fail strict scrutiny because, as a total ban on the proscribed speech, it is not narrowly tailored. Any harms that may be inflicted on minors by pedophiles with the assistance of materials that appear to depict minors engaged in sexual activity must be combatted by punishing pedophiles, not by potentially depriving the public of mainstream works created and distributed by amici.

2. The Additional Material Brought Within the
   Definition of "Child Pornography" by the CPPA
   Was Specifically Held to Be First Amendment-Protected
   in New York v. Ferber

Prior to the decision of the Supreme Court in New York v. Ferber, 458 U.S. 747 (1982), the only material of sexual content that was not protected under the First Amendment was material which was obscene under the three-part test of Miller v. California, 413 U.S. 15 (1973). In Ferber, the Supreme Court relied on overwhelming evidence demonstrating the special harms allied with the abuse of minors who are used in the creation of child pornography. The Court thus held that child pornography, like obscenity, was not protected by the First Amendment even though the child pornography did not qualify as obscene under the Miller test.

The trial court justified upholding the CPPA by citing to Ferber, and stating that "the Supreme Court has afforded `greater leeway’ to regulations of child pornography." Free Speech Coalition, 1997 WL 487758 at *4. However, it is clear from Ferber that the new category of child pornography held not to be protected by the First Amendment was expressly limited to material using actual children in its production. Indeed, the Supreme Court began its opinion by stating, "In recent years, the exploitive use of children in the production of pornography has become a serious national problem. The Federal Government and 47 States have sought to combat the problem with statutes specifically directed at the production of child pornography." Ferber, 458 U.S. at 749 (footnote omitted).

Acknowledging that the material targeted by the regulation at issue in Ferber was not obscene and therefore previously entitled to constitutional protection under the First Amendment, the Supreme Court went on to exclude from the protection of the First Amendment material involving the use of actual children below a specified age. Id. at 753-56. The Court based its decision on five very specific reasons, all of which concerned the well-documented harm to children as a result of their use as subjects in sexually explicit work. Id. at 756-64. Expressly limiting its holding to work involving the actual use of live children, the Court maintained that:

[I]f it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized. Simulation outside of the prohibition of the statute could provide another alternative. . . . The First Amendment interest is limited to that of rendering the portrayal somewhat more "realistic" by utilizing or photographing children.

. . . . We note that the distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection.

Id. at 763, 764-65. The CPPA and the trial court’s decision blatantly close the escape valves specifically contemplated by the Supreme Court. Id.

Just a few years ago, the Supreme Court reiterated that non-obscene "sexually explicit materials involving persons over the age of 17 are protected by the First Amendment." United States v. X-Citement Video, 115 S.Ct. 464, 469. In that same case, the Supreme Court stated that the Child Protection Act of 1984, passed after and in response to the Ferber decision, was an effort by Congress "to expand the child pornography statute to its full constitutional limits." X-Citement Video, 115. S.Ct. at 470 (emphasis added).

The Supreme Court has explicitly and repeatedly addressed the status of material using adults or simulations instead of actual minors, and it has declared that such material is protected by the First Amendment. The trial court’s reliance on Ferber to justify the CPPA is wrong; Ferber laid out clear constitutional parameters in the area of child pornography which the CPPA blatantly transgresses. Under any reading of Ferber and X-Citement Video, the ban on the CPPA’s expanded definition of child pornography is a violation of the First Amendment. The trial court’s holding is contrary to all relevant precedent and should be reversed.

3. Valuable Works Are Banned Under The CPPA

The district court blithely states that "It is highly unlikely that the types of valuable works plaintiffs fear will be outlawed under the CPPA -- depictions used by the medical profession to treat adolescent disorders, adaptations of sexual works like ‘Romeo and Juliet,’ and artistically-valued drawings and sketches of young adults engaging in passionate behavior -- will be treated as ‘criminal contraband.’" Free Speech Coalition, 1997 WL 487758, at 6. In reality, however, the CPPA as upheld by the trial court clearly allows for criminal prosecution of such valuable works. And, because of this, the CPPA now is acting as a prior restraint of precisely the material to which the district court referred.

One example of the chilling effect on the distribution of a "valuable work" is the long-finished $62 million major motion film of Vladimir Nabokov’s classic novel Lolita, starring Jeremy Irons and Melanie Griffith, in which the more explicit sexual scenes were played by an adult "body double." Although the film has received an R rating, apparently distributors are afraid to offer the work in part because of their fear of criminal prosecution under the CPPA. See, e.g., Fallout from Child Pornography Act: ‘Kiddie porn’ law has apparently scared off potential distributors," SAN FRANCISCO CHRONICLE, August 3, 1997.

2. THE CPPA IS IMPERMISSIBLY VAGUE

In addition to violating the First Amendment, the subjectivity and vagueness of the definitions added by the CPPA violate the Fifth Amendment. The CPPA allows for the criminal prosecution of anyone who creates, distributes, possesses, etc. any visual depiction that "appears to be" or "conveys the impression of" a minor engaging in sexually explicit conduct. 18 U.S.C.A. § 2256(8)(B)-(D) (West Supp. 1997). The standards "appears" and "conveys the impression" are totally subjective, relating to the reaction of any single viewer rather than to any concept or character inherent in the depiction itself. See Cramp v. Board of Public Instruction, 368 U.S. 278, 286 (invalidating on vagueness grounds loyalty oath "completely lacking ... terms susceptible of objective measurement." It is therefore impossible for amici to know what material is criminalized by the statute because what "appears to be" a minor to one person may not seem so to another. Hence, although amici may exercise extreme caution in order to ensure that they do not create or distribute visual depictions of actual minors or anyone who appears to them to be minors, they still are at risk of being arrested and criminally charged with dealing with "child pornography" because the subjective impression of the viewer is determinative under the CPPA. For this purpose, the relevant viewer may be the police officer, the prosecutor, or a complainant. For a video store or newsstand owner, the opprobrium of being labeled a "child pornographer" based on one person’s subjective view is such a threat that the chilling effect of excessive self-censorship raises its head.

The lower court’s cursory rejection of appellants’ vagueness argument failed to take into account that "where a statute imposes criminal penalties, the standard of certainty is higher." Kolender v. Lawson, 461 U.S. 352, 258 n.8 (1983). As the Supreme Court stated in the Grayned v. City of Rockford case, a law is void for vagueness under the due process clause of the Fifth Amendment if its prohibitions are not clearly defined. 408 U.S. 104, 108 (1972). The Court then provided the following extensive explanation of the three reasons why a vague law is unconstitutional:

Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. . . . Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute `abut(s) upon sensitive areas of basic First Amendment freedoms,’ it ` operates to inhibit the exercise of (those) freedoms.’ Uncertain meanings inevitably lead citizens to `steer far wider of the unlawful zone’ . . . than if the boundaries of the forbidden areas were clearly marked.

Id. at 108-109 (footnotes omitted). See also Smith v. California, 361 U.S. 147, 151 (1959) ("[S]tricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser.")

The "appears to be" and "conveys the impression that" standards of the CPPA do not provide a person with the opportunity to determine whether or not the material they may be dealing with falls under the statute’s criminal ambit. Further, because of the subjectivity of the CPPA, it is quite conceivable that a person may be criminally charged if it happens to appear to an official vested with the right to enforce the CPPA that sexually explicit material depicts a minor. As a direct result of its quintessentially vague language, the CPPA is having a chilling effect on distributors and others who deal with mainstream, valuable works. The Supreme Court has noted that "[u]ncertain meanings" inevitably lead citizens to " ‘steer far wider of the unlawful zone’ . . . than if the boundaries of the forbidden areas were clearly marked." Baggett v. Bullitt, 377 U.S. 360, 372 (1964) (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958)). The CPPA already is causing such unfortunate but inevitable self-censorship to take place. The CPPA is a paradigmatic example of a statute that is void for vagueness under the due process clause of the Fifth Amendment.

3. THE AFFIRMATIVE DEFENSE CREATES A CATCH-22 FOR AMICI

The district court and the government have asserted that the affirmative defense offered in the CPPA will "save" those who are not dealing with material that involves the use of actual children. This simply is not so. First, the affirmative defense provides no help for creators and distributors of work that does not involve the use of live persons, such as drawings or cartoons, since the defense is not available unless one can prove that the persons depicted are actual adults, an obvious impossibility in such cases. Thus, the CPPA fails to provide illustrators, painters and others who create work from their imagination with any defense against criminal prosecution.

Second, under X-Citement Video, a librarian, retailer, or distributor is not liable unless he or she knew that the material loaned, sold or distributed contained sexually explicit depictions of an actual minor. 115 S.Ct. at 471-472. This standard affords libraries and mainstream distributors and sellers a clear and ascertainable test in order to conduct their business without inadvertent criminal exposure, while still permitting criminal prosecution of those who knowingly traffic in child pornography. The burden of proof as to such knowledge of minority rests on the government. This burden of proof is lifted from the government when the charge is sale or distribution of material which "appears to be" of a minor, since there is no fact of minority included in the elements of the crime. Rather, the seller or distributor has the burden of proving the affirmative defense -- that the person depicted actually was an adult.

But what if the person depicted actually was, unbeknownst to the seller or distributor, a minor? Knowledge of minority, which was a requisite element of the crime under X-Citement Video and thus part of the government’s burden, is not an element of the crime of dealing with sexually explicit material in which one of the participants "appears to be" a minor. Thus the CPPA in effect overrules X-Citement Video by permitting the prosecutor to charge under the "appears to be" provision. This elimination of the knowledge requirement as to minority violates the strictures of Smith v. California:

[b]y dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public’s access to constitutionally protected matter. For if the bookseller is criminally liable without knowledge of the contents, and the ordinance fulfills its purpose, he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature.

361 U.S. 147, 153 (1959) (emphasis added) (footnotes omitted).

CONCLUSION

The court below justified the absolute ban of First Amendment-protected material based on the alleged harm of its "secondary effects" on minors, which the court contended made the prohibition content-neutral. As set forth above, there is no constitutional basis for such a conclusion. The CPPA is patently unconstitutional under the First and Fifth Amendments and the decision below should be reversed.

September 26, 1997

MICHAELA.BAMBERGER

Sonnenschein Nath & Rosenthal

1221 Avenue of the Americas

New York, New York 10020

(212) 768-6700

Counsel for Amici Curiae

Of Counsel,

Lisa R. Green

R. Bruce Rich

Jonathan Bloom

(on behalf of the Association

of American Publishers, Inc.)