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Statute prohibiting child pornography production held constitutional under First Amendment; United States v. Dean

In U.S v. Dean the defendant challenged the constitutionality of a federal prosecution under the statute 18 U.S.C. §1466A(a)(2). The defendant claimed the statute prohibiting production of child pornography is overbroad because it criminalizes materials that are neither child pornography nor obscene and therefore criminalizes materials protected by the First Amendment.

Internet crimes such as this case are commonly prosecuted under Section 1466A(a)(2), which prohibits possession, production or distribution of;
• a visual depiction of any kind, including a drawing, cartoon, sculpture or painting
• that depict an image that is or appears to be a minor engaged in sexual activity and
• “lacks serious literary, artistic, political, or scientific value.”
Under Ashcroft v. Free Speech Coalition a statute is facially overbroad if it criminalizes materials that are neither child pornography nor obscene, in other words if a substantial amount of material is protected speech under the First Amendment. Child pornography is not protected by the First Amendment because it is produced using minors and because the government has an interest in criminalizing the sexual abuse and exploitation of children.

The Eleventh Circuit acknowledges the statute has the potential to be overbroad because it includes material that does not involve actual children. The defendant however could not meet his burden of showing that the statute criminalizes a substantial amount of protected expressive activity.

The defendant was unable to identity protected materials, let alone a substantial number of these materials. The defendant gave as an example the movie “Lolita” (showing scenes of minors engaged in explicit sexual conduct using youthful actors or visual images) but that was rejected by the Court because it possess literary value that takes it beyond the reach o the statute.

The Court concluded that the defendant cannot meet his burden because there are few materials which depict children engaging in graphic sexual conduct and lack serious value, without also qualifying as obscenity. “Because the statute targets only specific, graphic sexual activity and because the statute targets only images that lack serious literary, artistic, political, or scientific value, the category of protected materials which are prohibited by the statute is very narrow.” The Court determined that the protected material prohibited by the statute pales in comparison to the statute’s legitimate sweep.

If you or a love one has been accused of committing an internet crime contact the Swartz Law Firm for immediate assistance in preparing your defense by an attorney specializes in criminal defense.