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Rehnquist, C. J., dissenting
impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct." 18 U. S. C. § 2256(8)(D) (emphasis added).
The First Amendment may protect the video shopowner or film distributor who promotes material as "entertaining" or "acclaimed" regardless of whether the material contains depictions of youthful looking adult actors engaged in nonob-scene but sexually suggestive conduct. The First Amendment does not, however, protect the panderer. Thus, materials promoted as conveying the impression that they depict actual minors engaged in sexually explicit conduct do not escape regulation merely because they might warrant First Amendment protection if promoted in a different manner. See Ginzburg, supra, at 474-476; cf. Jacobellis v. Ohio, 378 U. S. 184, 201 (1964) (Warren, C. J., dissenting) ("In my opinion, the use to which various materials are put—not just the words and pictures themselves—must be considered in determining whether or not the materials are obscene"). I would construe "conveys the impression" as limited to the panderer, which makes the statute entirely consistent with Ginzburg and other cases.
The Court says that "conveys the impression" goes well beyond Ginzburg to "prohibi[t] [the] possession of material described, or pandered, as child pornography by someone earlier in the distribution chain." Ante, at 258. The Court's concern is that an individual who merely possesses protected materials (such as videocassettes of Traffic or American Beauty) might offend the CPPA regardless of whether the individual actually intended to possess materials containing unprotected images. Ante, at 248; see also ante, at 263 (O'Connor, J., concurring in judgment in part and dissenting in part) ("Individuals or businesses found to possess just three such films have no defense to criminal liability under the CPPA").
This concern is a legitimate one, but there is, again, no need or reason to construe the statute this way. In
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