concluding that where a statute prohibiting child pornography requires that “[t]he visual depiction must be of an identifiable minor, not a virtual child,” the statute complies with Ashcroft
How later courts described this case
- concluding that where a statute prohibiting child pornography requires that “[t]he visual depiction must be of an identifiable minor, not a virtual child,” the statute complies with Ashcroft
- "The operative phrase for the Ashcroft [C]ourt was 'appears to be.' But unlike the federal statute, the Minnesota statute does not pertain to visual images that 'appear to be' of sexual activity involving a minor . . . ."
- invoking Minn. R. Civ.App. P. 103.04 to review appellant's due-process claims despite appellant's lack of standing
- "`Minor' is defined [in the statute] as `any person under the age of 18.' If the sexual performance depicted does not, in fact, involve a person under the age of 18, possession of the depiction is not prohibited."
Written by the judges who cited it.
The opinion
MINGE, Judge
(concurring specially).
Although I do not join in the opinion, I join in the decision of the majority affirming the conviction of appellants.
Freedom of expression is a fundamental right secured by the First Amendment of the United States Constitution and Article I, Section 3 of the Minnesota Constitution. We strictly scrutinize limits on expression and insist that such limits be justified by a compelling and overriding public purpose, and that they be narrowly crafted to serve that compelling purpose, without infringing on protected expression. See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 242-46 , 122 S.Ct. 1389, 1398-99 , 152 L.Ed.2d 403 (2002); cf. United States v. Carotene Prods. Co., 304 U.S. 144 , 152 n. 4, 58 S.Ct. 778 , 783 n. 4, 82 L.Ed. 1234 (1938); State ex rel. Morrow v. LaFleur, 590 N.W.2d 787, 796 (Minn.1999); In re Blodgett, 510 N.W.2d 910, 914 (Minn.1994). Obscenity and child pornography are not protected and can be prohibited. Ashcroft, 535 U.S. at 238-40 , 122 S.Ct. at 1396 .
Appellants have admitted to possession of child pornography of identifiable children. Since the power of the state to criminalize child pornography was recognized by the Supreme Court in the case of New York v. Ferber, 458 U.S. 747 , 102 S.Ct. 3348 , 73 L.Ed.2d 1113 (1982), this appeal has an easy, almost simplistic, dimension. However, this case presents two more difficult problems. The first is the potential overbreadth of the statute in criminalizing the. possession of pornographic drawings of minors. Drawings are different from pictures. The term “drawing” lacks precision and is vague. The majority interprets the statute as only *427 covering drawings of actual identifiable minors and appears to conclude that the accused would have to know or have strong reason to know that the drawings were of actual, identifiable minors. Only such a narrow reading of the statute and such a scienter requirement avoid the problem of overbreadth. Furthermore, such a narrow reading reduces the likelihood that the overbreadth is sufficiently substantial to justify striking the entire statute as unconstitutional.
The second problem is that the Supreme Court has not yet determined whether possession of images of an actual child that have been altered to appear as if that child is engaged in sexual activity can be subject to criminal penalties. See Ashcroft, 535 U.S. at 241-42 , 122 S.Ct. at 1397 . The statute before us takes that step. Minn. Stat. § 617.246 , subd. l(f)(2)(ii) (2000). The majority opinion upholds that provision. The opinion and the statute should be read as including a strong requirement of scienter as to both content and character. The statute should be understood to require actual knowledge or a clear reason to know both that the person depicted is an identifiable minor and that the activity shown meets the definition of pornographic work. Minn.Stat. § 617.247, subd. 4 (2000). Absent such a narrowing construction, the statute would not comply with Ashcroft and would be unconstitutional. However, since appellants do not claim that the pictures they possessed were altered and since they do not claim that the children pictured had not actually been part of proscribed sexual conduct, their conviction can stand without reference to this issue or Minn.Stat. § 617.246, subd. l(f)(2)(ii). The Supreme Court did not reach this issue and I would not reach it either.