Appeal from the United States District Court for the Central District of California. D.C. No. CR-88-0295-KN-3 UNITED STATES OF AMERICA,. D.C. No. CR-88-0295-KN-1. David V. Kenyon, District Judge, Presiding.
Before: William C. Canby, Jr., Alex Kozinski and Ferdinand F. Fernandez, Circuit Judges. Opinion by Judge Canby; Dissent by Judge Kozinski.
Defendant Rubin Gottesman appeals his conviction, after a bench trial, for violating the Protection of Children Against Sexual Exploitation Act of 1977 ("Act"), 18 U.S.C. § 2251 et seq. (1988). Gottesman was convicted of violating sections 2252(a)(1) and (a)(2) of the Act, which prohibit the distribution, receipt, or shipping of child pornography. Gottesman challenges the Act as unconstitutional, both on its face and as applied. We conclude that the Act is unconstitutional on its face and, therefore, reverse.
In 1986 and 1987, an undercover police officer contacted Gottesman, the operator of X-Citement Video, Inc., and expressed interest in buying pornographic videotapes featuring one Traci Lords. The officer stated that he wanted tapes that Lords had made when she was under the age of 18. Gottesman eventually sold two sets of such tapes: the first was a box of 49 tapes that he sold directly to the police officer; the second was a box of 8 tapes that Gottesman sold to the police officer and sent (per the police officer's instructions) to Hawaii.
A federal grand jury indicted Gottesman for distributing, shipping, and conspiring to distribute and ship child pornography in violation of 18 U.S.C. § 2252. After a bench trial, Gottesman was convicted on these counts; the district court sentenced him to 12 months incarceration and ordered him to pay a $100,000 fine.
After he had filed a notice of appeal to this court, Gottesman requested a remand to the district court for reconsideration in light of United States v. Thomas, 893 F.2d 1066 (9th Cir.), cert. denied, 112 L. Ed. 2d 53, 111 S. Ct. 80 (1990), which we granted. Gottesman then asserted before the district court, first, that Thomas had ruled that section 2252 lacked a requirement that a defendant know that he is distributing or shipping child pornography, and, second, that, as construed, section 2252 on its face violates the First and Fifth Amendments to the U.S. Constitution. The district court rejected these arguments and upheld the constitutionality of section 2252.
On appeal, Gottesman contends that: Section 2256 of the Act*fn1 is unconstitutional on its face because it is vague and overbroad; section 2252 of the Act*fn2 is unconstitutional on its face because it does not require scienter;*fn3 and the Act, as applied, violates the First and Fifth Amendments because the tapes at issue are not child pornography. We reject the challenges to section 2256 but agree that section 2252 is fatally defective. Because we conclude that section 2252 is unconstitutional on its face, we do not reach Gottesman's argument about the Act as applied.
I. Does Section 2256 Render the Act Unconstitutionally Vague and Overbroad?
A. Is the Act Unconstitutionally Overbroad Because it Raises the Statutory Age of Majority from 16 to 18?
Gottesman asserts that section 2256*fn4 of the Act - its definitional section - is facially unconstitutional because it renders the Act applicable to depictions of those under the age of 18, whereas the statute upheld in New York v. Ferber, 458 U.S. 747, 73 L. Ed. 2d 1113, 102 S. Ct. 3348 (1982), set the age of majority at 16. See Ferber, 458 U.S. at 774 (rejecting constitutional challenges to statute prohibiting promotion or distribution of sexual performances by children under the age of 16). Gottesman argues that adding two years to the age of majority renders the Act unconstitutionally overbroad. He contends that it is far more difficult to determine when a person is under 18 than it is to determine when he or she is under 16. The result, according to Gottesman, is that distribution of sexually explicit material becomes such a hazardous profession that its practitioners will refuse to handle materials involving persons anywhere near the age of 18, thus restricting protected expression involving, for example, 23- or 25-year-olds.
The Supreme Court stated in Ferber that it would invalidate a statute for overbreadth "'only as a last resort.' . . . The overbreadth involved [must] be 'substantial' before the statute involved will be invalidated on its face." Ferber, 458 U.S. at 769 (citation omitted). Although Gottesman's argument is not without some force, we see no basis for concluding that any overbreadth here is sufficiently greater than that attending a 16-year age line to compel a different result. Indeed, we would not lightly hold that the Constitution disables our society from protecting those members it has traditionally considered to be entitled to special protections - minors. Gottesman merely quotes a district court case discussing the Act's raising of the age of majority from 16 to 18, United States v. Kantor, 677 F. Supp. 1421 (C.D. Cal. 1987), vacated, mandate granted, United States v. United States District Court for the Central District of California, 858 F.2d 534 (9th Cir. 1988), and a series of Supreme Court cases that permit "adult" treatment of 16- and 17-year-olds. See, e.g., Stanford v. Kentucky, 492 U.S. 361, 106 L. Ed. 2d 306, 109 S. Ct. 2969 (1989) (permitting capital punishment for 16- and 17-year-olds). With respect to the former, Kantor did state that the Act seemed overbroad, but it also refused to strike down the statute on its face, in light of Ferber. With respect to the Supreme Court cases, they merely permit, rather than require, adult treatment of 16- and 17-year-olds. Moreover, they indicate nothing about the substantiality (or lack thereof) of the overbreadth of section 2256. Thus, Gottesman's arguments are far from sufficient to overcome the presumption against invalidating a statute on its face for overbreadth.
B. Does Section 2256 Render the Act Unconstitutionally Overbroad or Vague Because it Substitutes "Lascivious" for "Lewd"?
Gottesman contends that section 2256 is overbroad and vague because Congress replaced "lewd" with "lascivious" in defining illegal exhibition of the genitals of children. See 18 U.S.C. § 2256(2)(E). In so arguing, he ignores United States v. Wiegand, 812 F.2d 1239 (9th Cir.), cert. denied, 484 U.S. 856, 98 L. Ed. 2d 118, 108 S. Ct. 164 (1987), in which we rejected a similar argument, stating that "'lascivious' is no different in its meaning than 'lewd,' a commonsensical term whose constitutionality was specifically upheld in Miller v. California and in Ferber." Wiegand, 812 F.2d at 1243 (citations omitted). We adhere to the view expressed in Wiegand.
C. Does Section 2256 Render the Act Unconstitutionally Overbroad or Vague Because it Prohibits Actual or Simulated Bestiality and Sadistic or Masochistic Abuse?
Gottesman asserts that section 2256 is overbroad and vague because it includes among the covered acts, without further definition, actual or simulated bestiality and sadistic or masochistic abuse. 18 U.S.C. § 2256(2). This argument was essentially answered in Ferber, which upheld the constitutionality of a similar statute. The relevant section of the statute at issue in Ferber defined the prohibited sexual conduct as "'actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.'" 458 U.S. at 751.
Gottesman focuses on three differences between section 2256 and the statute in Ferber : First, he argues that section 2256's prohibition of "simulated" acts renders it overbroad and vague. The statute in Ferber also prohibited "simulated" acts, however, and the structure of the sentence suggests that "simulated" modified all the acts on the list. Thus, there is no meaningful distinction between section 2256 and the Ferber statute in this regard. Second, Gottesman focuses on section 2556(2)(D)'s alleged inclusion of "sadistic or masochistic; abuse." The semicolon before "abuse" is a typographical error in the unofficial code, however; the official version of section 2256(2)(D) states "sadistic or masochistic abuse." Compare 18 U.S.C. § 2256(2)(D) (1988) with 18 U.S.C.A. § 2256(2)(D) (West Supp. 1992). The only difference between section 2256 and the Ferber statute, therefore, is the former's replacement of "sado-masochistic abuse" with "sadistic or masochistic abuse." The two terms are indistinguishable. The final difference that Gottesman cites is that the Ferber statute prohibited "sexual bestiality," whereas section 2256 refers only to "bestiality." Gottesman suggests that, under section 2256, "bestiality" could be read to encompass its entire dictionary definition, so that it would also prohibit, e.g., "the display, gratification, or an instance of ...