In U.S. v. Dean, No. 09-16133 (March 16, 2011), the Court rejected challenges to the constitutionality of a statute that makes it unlawful to produce child pornography, 18 U.S.C. § 1466A(a)(2).
Dean relied on the First Amendment “overbreadth” doctrine. The Court noted that a statute will be struck down as overbroad only if the overbreadth is “substantial” relative to its plainly legitimate sweep. Here, while the statute criminalizes some speech that is not child pornography, for example, an “explicit film version of the novel Lolita,” the overbreadth is not “substantial” in relation to the statute’s legitimate reach. The Court noted that the statute requires a showing that the activity lacks “serious literary, artistic, political or scientific value.” Moreover, the materials that would not be not be “patently offensive,” and therefore deserving of First Amendment protection, would not be substantial in relation to materials that would be “patently offensive.” The Court distinguished Ashcroft v. Free Speech Coalition, because the statute at issue in that case had no exception for materials that were non-obscene by reason of their serious literary, artistic, political, or scientific value.
The Court rejected the argument that the statute was not narrowly tailored because the “knowingly” mens rea only referenced the verbs in the statute, not the characteristics of the image that make it unlawful. The Court held that the word “knowingly” refers to the image characteristics listed in the statute.
Turning to the sentence, the Court noted the authorities, including a paper by federal public defender Troy Stabenow, which argue that the Guidelines for child-pornography offenses are overly severe as applied to “the typical downloader of child pornography.” The Court noted that Dean was not a typical downloader, having sexually abused his stepdaughter and filmed hundreds of the episodes of abuse to generate pornographic films.
