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OCTOBER TERM, 2001
Syllabus
certiorari to the united states court of appeals for the ninth circuit
No. 00-795. Argued October 30, 2001—Decided April 16, 2002
The Child Pornography Prevention Act of 1996 (CPPA) expands the federal prohibition on child pornography to include not only pornographic images made using actual children, 18 U. S. C. § 2256(8)(A), but also "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture," that "is, or appears to be, of a minor engaging in sexually explicit conduct," § 2256(8)(B), and any sexually explicit image that is "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression" it depicts "a minor engaging in sexually explicit conduct," § 2256(8)(D). Thus, § 2256(8)(B) bans a range of sexually explicit images, sometimes called "virtual child pornography," that appear to depict minors but were produced by means other than using real children, such as through the use of youthful-looking adults or computer-imaging technology. Section 2256(8)(D) is aimed at preventing the production or distribution of pornographic material pandered as child pornography. Fearing that the CPPA threatened their activities, respondents, an adult-entertainment trade association and others, filed this suit alleging that the "appears to be" and "conveys the impression" provisions are overbroad and vague, chilling production of works protected by the First Amendment. The District Court disagreed and granted the Government summary judgment, but the Ninth Circuit reversed. Generally, pornography can be banned only if it is obscene under Miller v. California, 413 U. S. 15, but pornography depicting actual children can be proscribed whether or not the images are obscene because of the State's interest in protecting the children exploited by the production process, New York v. Ferber, 458 U. S. 747, 758, and in prosecuting those who promote such sexual exploitation, id., at 761. The Ninth Circuit held the CPPA invalid on its face, finding it to be substantially over-broad because it bans materials that are neither obscene under Miller nor produced by the exploitation of real children as in Ferber.
Held: The prohibitions of §§ 2256(8)(B) and 2256(8)(D) are overbroad and unconstitutional. Pp. 244-258.
(a) Section 2256(8)(B) covers materials beyond the categories recognized in Ferber and Miller, and the reasons the Government offers in
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