judge panel of the U.S. Court of Appeals had "invalidated key provisions of the federal Child Pornography Prevention Act of 1996," the U.S. Attorney for the Northern District of California, Robert S. Mueller, III, has petitioned the Ninth Circuit for a rehearing on the case of Free Speech Coalition v. Reno, this time before the entire U.S. Court of Appeals en banc.
Relying heavily on the argument accompanying Congress' debate on the Child Pornography Prevention Act (CPPA), as well as the dissenting opinion of Judge Ferguson contained in the Appeals Court opinion in the case, the government made several claims in its petition: that to seduce children pedophiles could use images even of adults who looked underage; that minor-appearing images would be as useful to inter-pedophile trading as those of real kids; and that it would be more difficult to prosecute offenders if the burden were on the government to prove whether the minors depicted were actual minors or disguised adults. The government also argued that the CPPA contains affirmative defenses which those arrested for violation of the act could use to show that minors were not involved in the images in question.
However, the government's petition manages to avoid all of the arguments set forth in the Appeals Court Order striking the CPPA sections relating to images of adults who "appear to be" minors or "convey the impression" of same. (The rest of the Act was unaffected by the Appeals Court decision.) Rather, the petition says that the Appeals Court panel should have paid more attention to Congress' reasoning in enacting the legislation, as well as the decisions in Maine (U.S. v. Hilton) and Florida (U.S. v. Acheson) which upheld the entire Act, though vagueness of verbiage was not an issue in either of those cases.
Interestingly, the government's petition also relies in part on New York v. Ferber, ignoring its clear dictum that if it's necessary to depict children in sexual situations, young-looking adults could be used in their place. It should also be noted that the CPPA was never enacted by the legislators but was attached to the 1996 Federal Budget and became law when Clinton signed that bill.
(AVN's story on the Free Speech Coalitionís victory before the Appeals Court panel can be found in the February, í00 issue and online at www.avn.com.)
