266
Opinion of O'Connor, J.
of minors" engaging in indecent conduct, but that have serious value or do not facilitate child abuse. Their overbreadth challenge therefore fails.
III
Although in my view the CPPA's ban on youthful adult pornography appears to violate the First Amendment, the ban on virtual child pornography does not. It is true that both bans are authorized by the same text: The statute's definition of child pornography to include depictions that "appea[r] to be" of children in sexually explicit poses. 18 U. S. C. § 2256(8)(B). Invalidating a statute due to over-breadth, however, is an extreme remedy, one that should be employed "sparingly and only as a last resort." Broadrick, supra, at 613. We have observed that "[i]t is not the usual judicial practice, . . . nor do we consider it generally desirable, to proceed to an overbreadth issue unnecessarily." Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 484-485 (1989).
Heeding this caution, I would strike the "appears to be" provision only insofar as it is applied to the subset of cases involving youthful adult pornography. This approach is similar to that taken in United States v. Grace, 461 U. S. 171 (1983), which considered the constitutionality of a federal statute that makes it unlawful to "parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display therein any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement." 40 U. S. C. § 13k (1994 ed.). The term "Supreme Court . . . grounds" technically includes the sidewalks surrounding the Court, but because sidewalks have traditionally been considered a public forum, the Court held the statute unconstitutional only when applied to sidewalks.
Although 18 U. S. C. § 2256(8)(B) does not distinguish between youthful adult and virtual child pornography, the CPPA elsewhere draws a line between these two classes of
Page: Index Previous 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 NextLast modified: October 4, 2007