UNITED STATES DISTRICT COURT

__________________ DISTRICT OF TEXAS

________________  DIVISION

UNITED STATES OF AMERICA	      	§
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V.						§	CAUSE NO. _________________
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DEFENDANT’S MOTION TO DISMISS

TO THE HONORABLE _____________, UNITED STATES DISTRICT JUDGE FOR THE ______________ DISTRICT OF TEXAS:

	NOW COMES  Defendant __________________, through his attorney, _________________,  and respectfully requests that the Court dismiss the superseding indictment, on the ground that the statute under which he is charged, 18 U.S.C. § 2252,  violates the First Amendment and is unconstitutionally vague and overbroad.  In support of his Motion, __________________ respectfully shows this Court the following facts and circumstances:
Introduction
	__________________ stands charged by superseding indictment with six counts of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).  That section prohibits, in pertinent part, “knowingly possessing any book, magazine, computer disk or any other material that contains an image of child pornography....”  18 U.S.C. § 2252A(a)(5)(B) (West 2001).  For purposes of that section, § 2256(8) defines “child pornography” to include images that  “appear to be” or “convey the impression of” minors engaging in sexually explicit conduct.  18 U.S.C. § 2256(8) (West 2001).  __________________ challenges this expansive definition, as violative of the First Amendment.
	The Fifth Circuit in United States v. Fox, 2001 WL 370045, at *3 (5th Cir. 2001), addressed a constitutional challenge to §§ 2252 and 2256(8) identical to the one now raised by __________________.  Although the court of appeals rejected this constitutional challenge, it pointed out that the issue has created a circuit split and is currently on certiorari review before the United States Supreme Court. See id. at  *3  n.10 (noting that Supreme Court will likely resolve the conflict among the circuits on this issue in Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), cert. granted sub nom. Ashcroft v. Free Speech Coalition, 121 S. Ct. 876 (2001)).  In light of the Supreme Court’s impending resolution of the issue,  __________________ raises it to preserve it for further review.
Legal Argument and Supporting Facts

	The Child Pornography Prevention Act of 1996 expanded § 2256(8)’s definition of child pornography to include images that only “appear to be” or “convey the impression of” minors engaging in sexually explicit conduct.  18 U.S.C. § 2256(8) (West 2001). As a content based restriction on speech, § 2256(8)’s expanded definition can only stand if it survives strict scrutiny, i.e., if the statutory provision is narrowly tailored to advance a compelling governmental interest. See Fox, 2001 WL 370045 at *3.  __________________ respectfully submits that the statutory definition of “child pornography” at issue in § 2256(8) cannot withstand such scrutiny.
	Strict Scrutiny Analysis:  The Supreme Court has required state statues criminalizing child pornography to limit the offense to “works that visually depict explicit sexual conduct by children below a specified age.” Free Speech Coalition, 198 F.3d 1083, 1092 (quoting New York v. Ferber, 458 U.S. 747, 764 (1982)).  The Ferber Court acknowledged that “if it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized.” Ferber, 458 U.S. 747, 763 (emphasis added).  The only logical way to read Ferber is as tacitly acknowledging that there are expressions that may be constitutionally protected even though they convey the impression of a minor engaged in sexually explicit conduct.  The Ninth Circuit concluded that, under Ferber, the only compelling governmental interest that justifies the content-based regulation of child pornography is the “protection of the actual children used in the production of child pornography.”  Free Speech Coalition, 198 F.3d 1083, 1092 (emphasis added).  Because § 2252's definition of “child pornography” has been expanded to include depictions that do not involve actual children, “Congress has outlawed the type of depictions explicitly protected by the Supreme Court’s interpretation of the First Amendment.” Id. at 1094.  The regulation, therefore, does not withstand strict scrutiny review. Id.; but see Fox, 2001 WL 370045, at * 4 (disagreeing with the Ninth Circuit’s determination that preventing harm to children actually depicted in pornography is the only legitimate justification for Congress’s criminalizing the possession of child pornography).  
	Unconstitutionally Vague and Overbroad: __________________ also maintains that 18 U.S.C. §§ 2252A and 2256(8) should be declared void because the incorporated definition of “child pornography”  is unconstitutionally vague and overbroad.  A statute is void for vagueness if it fails to “‘define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary or discriminatory enforcement.’” Free Speech Coalition, 198 F.3d 1083, 1095 (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)). It is impermissible to define a criminal offense so vaguely that an ordinary person is left guessing about what is prohibited and what is not.  Free Speech Coalition, 198 F.3d 1083, 1095.  Such is the case with the statutory language prohibiting material that “appears to be” or that “conveys the impression” of a minor engaging in sexually explicit conduct. Id.  It does not “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited,” and it fails to provide explicit standards for those who must apply it, “with the attendant dangers of arbitrary and discriminatory application.” Id. (citing Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)).  In light of the highly subjective nature of the § 2256(8) definition and the lack of standards for those who must apply it, §§ 2252A and 2256(8) should be declared void for vagueness.
	In addition to its vagueness, the § 2256(8) definition should be held to be void based on its overbreadth. The § 2256(8) definition includes within its broad expanse non-obscene sexual expression that does not involve actual children.  As was discussed above, such expression is protected under the First Amendment.   See Free Speech Coalition, 198 F.3d 1083, 1096 (citing  Ferber, 458 U.S. 747, 764-65).  The definition’s inclusion of constitutionally protected activity as well as legitimately prohibited activity makes it overbroad.  Id.; but see Fox, 2001 WL 370045 at *7 (holding that  § 2252A is not constitutionally overbroad).  Accordingly,  §§ 2252A and  2256(8) should be held to be void.

PRAYER
	WHEREFOR, premises considered, Defendant respectfully requests that this Honorable Court dismiss the superseding indictment, on the ground that the statute under which he is charged, 18 U.S.C. § 2252,  violates the First Amendment and is unconstitutionally vague and overbroad.
						Respectfully submitted.

						_______________________________							Attorney for Defendant

CERTIFICATE OF SERVICE

	I certify that I served a copy of the foregoing Defendant's Motion to Dismiss on the  United States Attorney for the __________ District of Texas (Attn: Assistant U.S. Attorney _________________), by mailing it to his office at United States Attorney’s Office, ____________________ on __________________,  20____. 			

						______________________________________ 
						
						Attorney for Defendant