Petition for Writ of Certiorari — Eric Allen Haensgen, Petitioner v. United States

Supreme Court briefAug 27, 2019

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IN THE SUPREME COURT OF THE UNITED STATES

__________________________________

ERIC ALLEN HAENSGEN,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

__________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

________________________________

PETITION FOR A WRIT OF CERTIORARI

BENJAMIN L. COLEMAN

COLEMAN & BALOGH LLP

1350 Columbia Street, Suite 600

San Diego, California 92101

Telephone (619) 794-0420

blc@colemanbalogh.com

Counsel for Petitioner

QUESTION PRESENTED

Whether amendments to the child pornography law set forth in 18

U.S.C. § 2252A(a)(2)(A) have rendered the current version of the statute

unconstitutional under the First Amendment.

STATEMENT OF RELATED CASES

• United States v. Eric Allen Haensgen, No. 17CR00204-PA, U.S.

District Court for the Central District of California. Judgment

entered November 6, 2017.

• United States v. Eric Allen Haensgen, No. 17-50392, U.S. Court of

Appeals for the Ninth Circuit. Judgment entered May 29, 2019.

TABLE OF CONTENTS

Table of authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Opinion below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Jurisdiction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Constitutional and statutory provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. The increase in age to 18 violates the First Amendment. . . . . . . . 6

B. The amended definition of “child pornography” is overbroad. . . 12

C. The amended penalties violate the First Amendment. . . . . . . . . . 14

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Appendix

Ninth Circuit decision, May 29, 2019. . . . . . . . . . . . . . . . . . . . App. 1

iii

TABLE OF AUTHORITIES

CASES

Ashcroft v. Free Speech Coalition,

535 U.S. 234 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Brockett v. Spokane Arcades, Inc.,

472 U.S. 491 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

City of Houston v. Hill,

482 U.S. 451 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Esquivel-Quintana v. Sessions,

137 S. Ct. 1562 (2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,8

Iancu v. Brunetti,

139 S. Ct. 2294 (2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Marks v. United States,

430 U.S. 188 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Michael M. v. Superior Court of Sonoma County,

450 U.S. 464 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

New York v. Ferber,

458 U.S. 747 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Packingham v. North Carolina,

137 S. Ct. 1730 (2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Alvarez,

567 U.S. 709 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,7,8

United States v. Booker,

543 U.S. 220 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Hardrick,

766 F.3d 1051 (9th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Henderson,

649 F.3d 955 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Stevens,

559 U.S. 460 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,11,12,14,16

United States v Williams,

553 U.S. 285 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,13

United States v. X-Citement Video, Inc.,

513 U.S. 64 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,11

United States v. X-Citement Video, Inc,

982 F.2d 1285 (9th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,11

Virginia v. Hicks,

539 U.S. 113 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CONSTITUTION

U.S. Const. Amend. I.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

STATUTES

18 U.S.C. § 2243. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

18 U.S.C. § 2252. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

18 U.S.C. § 2252A.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

18 U.S.C. § 2253 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,9

18 U.S.C. § 2255 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,9

18 U.S.C. § 2256. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

18 U.S.C. § 3559. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

18 U.S.C. § 3583. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,15,16

28 U.S.C. § 1254. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Arizona Revised Statutes § 13-1407(F). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

MISCELLANEOUS

H.R. Rep. No. 98-536, 1983 WL 25391 (Nov. 10, 1983).. . . . . . . . . . . . . . . . . . . . 9

Model Penal Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

OPINION BELOW

The Ninth Circuit’s decision can be found at United States v. Haensgen, No.

17-50392, 2019 WL 2292722 (9th Cir. May 29, 2019).

JURISDICTION

The court of appeals entered its decision on May 29, 2019. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const. Amend. I:

Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech, or

of the press; or the right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.

18 U.S.C. § 2252A provides in relevant part:

(a) Any person who –

***

(2) knowingly receives or distributes –

(A) any child pornography that has been mailed, or using any means or

facility of interstate or foreign commerce shipped or transported in or

affecting interstate or foreign commerce by any means, including by

computer . . . .

***

shall be punished as provided in subsection (b).

(b)(1) Whoever violates, or attempts or conspires to violate, paragraph (1),

(2), (3), (4), or (6) of subsection (a) shall be fined under this title and

imprisoned not less than 5 years and not more than 20 years . . . .

18 U.S.C. § 2256 provides in relevant part:

For the purposes of this chapter, the term –

(1) “minor” means any person under the age of eighteen years;

(2)(A) Except as provided in subparagraph (B), “sexually explicit

conduct” means actual or simulated –

(i) sexual intercourse, including genital-genital, oral-genital,

anal-genital, or oral-anal, whether between persons of the same or

opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the genitals or pubic area of any

person;

(B) For purposes of subsection 8(B) of this section, “sexually

explicit conduct” means –

(i) graphic sexual intercourse, including genital-genital, oralgenital, anal-genital, or oral-anal, whether between persons of the

same or opposite sex, or lascivious simulated sexual intercourse

where the genitals, breast, or pubic area of any person is exhibited;

(ii) graphic or lascivious simulated;

(I) bestiality;

(II) masturbation; or

(III) sadistic or masochistic abuse; or

(iii) graphic or simulated lascivious exhibition of the genitals

or pubic area of any person . . . .

***

(8) “child pornography” means any visual depiction, including any

photograph, film, video, picture, or computer or computergenerated image or picture, whether made or produced by

electronic, mechanical, or other means, of sexually explicit

conduct, where

(A) the production of such visual depiction involves the use of

a minor engaging in sexually explicit conduct;

(B) such visual depiction is a digital image, computer image, or

computer-generated image that is, or is indistinguishable from,

that of a minor engaging in sexually explicit conduct; or

modified to appear that an identifiable minor is engaging in

sexually explicit conduct.

***

(10) “graphic,” when used with respect to a depiction of sexually

explicit conduct, means that a viewer can observe any part of the

genitals or pubic area of any depicted person or animal during any

part of the time that the sexually explicit conduct is being

depicted; and

(11) the term “indistinguishable” used with respect to a depiction,

means virtually indistinguishable, in that the depiction is such that

an ordinary person viewing the depiction would conclude that the

depiction is of an actual minor engaged in sexually explicit

conduct. This definition does not apply to depictions that are

drawings, cartoons, sculptures, or paintings depicting minors or

adults.

STATEMENT OF THE CASE

The federal statutes proscribing the possession, receipt, and distribution of

child pornography are found at 18 U.S.C. §§ 2252 and 2252A. Congress

originally enacted § 2252 in the late 1970's, and that statute governs depictions

“involv[ing] the use of a minor engaging in sexually explicit conduct . . . .” 18

U.S.C. § 2252(a). In 1996, Congress added § 2252A, which applies to an

expanded definition of “child pornography.” 18 U.S.C. § 2256(8). This Court

struck down part of the expansive definition of “child pornography” in Ashcroft v.

Free Speech Coalition, 535 U.S. 234 (2002), and Congress responded with a new

definition in 2003. See United States v. Williams, 553 U.S. 285, 289 (2008).

When first enacted, the federal child pornography laws only applied to

depictions of individuals under the age of 16. See 18 U.S.C. § 2253 (1977). In

1984, Congress amended the definition of a minor for purposes of the federal child

pornography laws by increasing the age to 18, see 18 U.S.C. § 2255 (1984), and

this definition remains today. See 18 U.S.C. § 2256(1). When originally enacted,

the federal child pornography laws carried no mandatory minimum penalty for a

first offense and a maximum of 10 years. See 18 U.S.C. § 2252 (1978). Now, a

first violation of § 2252A(a)(2)(A) results in a minimum sentence of five years and

a maximum of 20 years, see 18 U.S.C. § 2252A(b)(1), and the current statutory

scheme authorizes lifetime supervised release. See 18 U.S.C. § 3583(k).

In 2017, a federal grand jury in the Central District of California returned a

three-count indictment charging petitioner with child pornography offenses. He

pled guilty to Count 2, which charged him with distribution of child pornography

in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1). The factual basis for

petitioner’s guilty plea stated that the specific electronic file underlying Count 2

“depict[ed] what appears to be” a nude girl. Although petitioner had no prior

record, the district court sentenced him to 180 months in custody and lifetime

supervised release.

On appeal, petitioner challenged the constitutionality of § 2252A(a)(2)(A)

under the First Amendment. The Ninth Circuit rejected his challenge. The Ninth

Circuit held that the amendment to the statute increasing the age cut-off of a

“minor” from 16 to 18 was not overbroad and that “Congress did not increase the

age cut-off to 18 solely to make it easier to prosecute pornography cases involving

15-year-olds.” App. 3. The Ninth Circuit also held that the definition of child

pornography in 18 U.S.C. § 2256(8)(B) “is not implicated by this case,” and

therefore “[a]ny constitutional infirmity in § 2256(8)(B) would not require striking

down § 2256(8)(A).” App. 3-4. Finally, although recognizing that the current

penalties for federal child pornography offenses have been criticized as harsh, the

Ninth Circuit held that they are not so severe as to “impermissibly chill protected

speech.” App. 4.

ARGUMENT

The First Amendment requires a delicate consideration of constitutional

interests. Rather than using surgical precision, however, Congress has responded

to the problem of child pornography with a freewheeling hammer. Through a

series of amendments over the course of four decades, Congress has created a

statutory scheme that imposes the harshest penalties on an overly broad category

of material. At least three features of the current version of 18 U.S.C. §

2252A(a)(2)(A), particularly when considered in combination, see Marks v.

United States, 430 U.S. 188, 198 (1977) (Stevens, J., concurring), render the

statute unconstitutional under the First Amendment: (1) the amendment defining a

minor as someone under 18; (2) the expansive current definition of “child

pornography;” and (3) the staggering penalties that defendants now face.

Although there is not a lower-court conflict, the Court should grant review

because the Ninth Circuit decided the important Constitutional question presented

in this petition in a way that conflicts with relevant decisions of this Court,

particularly Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). In recent

years, the government has greatly increased the number of federal child

pornography prosecutions, making the First Amendment issues at stake all the

more important. The Court should now hold that § 2252A(a)(2)(A) violates the

First Amendment.

A. The increase in age to 18 violates the First Amendment

In 1984, Congress amended the definition of a “minor” for purposes of the

federal child pornography laws by increasing the age cut-off from 16 to 18. The

reason offered by Congress for this increase – an increase with virtually no

historical support – conflicts with this Court’s most recent First Amendment

jurisprudence. Accordingly, § 2252A(a)(2)(A) is substantially overbroad and

violates the First Amendment.

This “Court has rejected as ‘startling and dangerous’ a ‘free-floating test for

First Amendment coverage based on an ad hoc balancing of relative social costs

and benefits.” United States v. Alvarez, 567 U.S. 709, 717 (2012) (citation

omitted). “Instead, content-based restrictions on speech have been permitted, as a

general matter, only when confined to the few ‘historic and traditional categories

of expression long familiar to the bar.” Id. (emphasis added) (citation omitted).

Without question, child pornography is among the historical and traditional

categories of expression exempted from First Amendment coverage, id., but just as

history and tradition establish the exempted categories, history and tradition must

also be considered in defining what constitutes child pornography.

The English common law set the relevant age of consent at 10-12, and this

age range “was part of the common law brought to the United States.” Michael M.

v. Superior Court of Sonoma County, 450 U.S. 464, 494 n.9 (1981) (Brennan, J.,

dissenting). This common law view persisted in the United States until at least the

1880's, when states began to increase the age, see, e.g., id. at 494 n.9, but even

then, defining a minor as an individual under 18 for purposes of proscribed sexual

activity is a relatively recent and rare phenomenon.

Indeed, the federal age of consent for sexual relations is still 16. See 18

U.S.C. § 2243(a); Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1570-71

(2017). Thus, the perplexing reality of federal law is that two consenting 17-year

olds can legally engage in sexual relations. But if they take a video of their

consensual sexual relationship and text it to each other, they can be prosecuted for

production and distribution of child pornography. This arbitrary statutory

framework does not survive the exacting scrutiny required for First Amendment

analysis. See Alvarez, 567 U.S. at 724.

Consistent with federal law, the age of consent is 16 or younger in 39 states

and the District of Columbia. See Ashcroft, 535 U.S. at 247; see also EsquivelQuintana, 137 S. Ct. at 1571. Even the few states that set the age of consent at 18

typically have exceptions allowing 16 and 17-year olds to engage in sexual

relations with individuals of similar ages. See, e.g., Arizona Revised Statutes §

13-1407(F). Most countries throughout the world, including the United Kingdom

(from where much of our law is derived), similarly set the age of consent at 16 or

younger, as does the Model Penal Code. See Mode Penal Code § 212.4. The

views of the States (and the rest of the world) are important when conducting a

First Amendment analysis because although there is obviously “a broad societal

consensus” against child pornography, there is very little consensus that a child

includes 16 and 17-year olds for these purposes. See United States v. Stevens, 559

U.S. 460, 475-77 (2010) (striking down law prohibiting depictions of animal

cruelty under First Amendment “because although there may be ‘a broad societal

consensus’ against cruelty to animals, there is substantial disagreement on what

types of conduct are properly regarded as cruel”) (citation omitted).

When the federal child pornography laws were first enacted in 1977, they

only applied to pornography depicting individuals under the age of 16. See 18

U.S.C. § 2253 (1977). Similarly, in the landmark child pornography case of New

York v. Ferber, 458 U.S. 747, 749 (1982), the applicable law defined a child as

someone under the age of 16. Two years after Ferber, Congress increased the age

to 18, but its rationale was not to protect 16 and 17-year olds. Indeed, as

mentioned, the federal age of consent is still 16. Instead, Congress explained:

The Committee concluded that the age of children encompassed by the

act should be increased from 16 to 18 years. The prosecution for

distribution are most often based solely on the pornography which is the

subject of the offense; the children cannot be located. Based on the

pictures alone, the prosecution must show that the child is under the age

of 16. This is extremely difficult once the child shows any sign of

puberty. Raising the age to 18 would facilitate the prosecution of child

pornography cases and raise the effective age of protection of children

from these practices, probably not to 18 years of age, but perhaps to 16.

H.R. Rep. No. 98-536, 1983 WL 25391 (Nov. 10, 1983). Despite this specific

explanation, the Ninth Circuit asserted that making it easier to prosecute cases

involving 15-year olds was not the only reason for the amendment, but it relied on

very general language in the legislative history taken out of context and never

addressed Congress’s explicit justification for the amendment and the fact that the

federal age of consent is still 16. App. 3.

The explicit rationale for the age-increase stated by Congress is precisely

the type of overbreadth violation that this Court’s most recent precedent forbids.

In Free Speech Coalition, this Court struck down part of a prior version of §

2252A that applied to virtual child pornography and rejected the government’s

argument “that the possibility of producing images by using computer imaging

makes it very difficult for it to prosecute those who produce pornography by using

real children.” Free Speech Coalition, 535 U.S. at 254. This Court explained:

“The argument, in essence, is that protected speech may be banned as a means to

ban unprotected speech. This analysis turns the First Amendment upside down.”

Id. at 255. Thus, Congress “may not suppress lawful speech as the means to

suppress unlawful speech. Protected speech does not become unprotected merely

because it resembles the latter. The Constitution requires the reverse.” Id. at 255.

This Court reiterated: “The possible harm to society in permitting some

unprotected speech to go unpunished is outweighed by the possibility that

protected speech of others may be muted. The overbreadth doctrine prohibits the

Government from banning unprotected speech if a substantial amount of protected

speech is prohibited or chilled in the process.” Id. at 255. In short, Congress’s

rationale for increasing the age to 18 is inconsistent with this Court’s 2002

decision in Free Speech Coalition, as Congress elected to proscribe pornography

involving 17-year olds so that it could more easily prosecute pornography

involving 15-year olds.

In United States v. X-Citement Video, Inc., 982 F.2d 1285 (9th Cir. 1992),

rev’d, 513 U.S. 64 (1994), the defendant made a similar challenge to the one made

here in the context of § 2252, and the Ninth Circuit observed that it had some

“force.” Id. at 1287-88. Nevertheless, without addressing the legislative history

of the amendment increasing the age limit to 18, the Ninth Circuit rejected the

contention, essentially reasoning that the defendant had not shown substantial

overbreadth. Id. at 1288. This Court ultimately reversed in X-Citement Video,

Inc. on other grounds, but, after noting that review was not granted on the age

issue, this Court summarily adopted the Ninth Circuit’s rationale in that regard.

See United States v. X-Citement Video, Inc., 513 U.S. 64, 78-79 (1994). The

earlier and summary dicta in X-Citement Video, Inc. does not survive this Court’s

subsequent reasoned analysis in cases like Free Speech Coalition. Furthermore,

the summary analysis in X-Citement Video, Inc. in the context of § 2252 did not

address the combination of factors that makes § 2252A(a)(2)(A) overbroad.

Finally, to be facially unconstitutional under the overbreadth doctrine, the

statute must be substantially overbroad. See, e.g., Stevens, 559 U.S. at 473. The

overbreadth here is substantial. The statute’s “alarming breadth[,]” id. at 474,

includes depictions of 16 and 17-year olds, even those with literary value. See

Free Speech Coalition, 535 U.S. at 247-48. The government cannot attempt to

save the statute by contending that it only prosecutes when depictions involve

individuals under the age of 16. See Stevens, 559 U.S. at 480 (“But the First

Amendment protects against the Government; it does not leave us at the mercy of

noblesse oblige. We would not uphold an unconstitutional statute merely because

the Government promised to use it responsibly.”). Nor does it matter under the

overbreadth doctrine that the depictions alleged in this case involve individuals

under the age of 16. For this reason alone, the statute is overbroad on its face and

therefore must be struck down. Id. at 482.

B. The amended definition of “child pornography” is overbroad

Even if, despite Free Speech Coalition, 535 U.S. at 254-55, it were

constitutionally permissible to raise the age to 18 so as to make it easier to

prosecute pornography cases involving minors under 16, the specialized definition

of “child pornography” under § 2252A(a)(2) is overbroad. Other child

pornography laws, see, e.g., 18 U.S.C. § 2252(a), require a visual depiction of a

minor engaging in “sexually explicit conduct” as defined in 18 U.S.C. § 2256(2).

The offense set forth in § 2252A(a)(2)(A), however, is different.

As it has been amended over the years, § 2252A contains a broader

definition of “child pornography,” which includes a visual depiction “that is, or is

indistinguishable from, that of a minor engaging in sexually explicit conduct . . . .”

18 U.S.C. § 2256(8)(B) (emphasis added). “[T]he term ‘indistinguishable’ used

with respect to a depiction, means virtually indistinguishable, in that the depiction

is such that an ordinary person viewing the depiction would conclude that the

depiction is of an actual minor engaged in sexually explicit conduct. This

definition does not apply to depictions that are drawings, cartoons, sculptures, or

paintings depicting minors or adults.” 18 U.S.C. § 2256(11).

Under the terms of the statutory scheme, § 2252A(a)(2)(A) applies to a

movie where young adults are used to convincingly portray 17-year olds engaged

in sexually explicit conduct. This is exactly the type of material that this Court

held was protected in Free Speech Coalition. See Free Speech Coalition, 535 U.S.

at 246-58. “The statute proscribes the visual depiction of an idea – that of

teenagers engaging in sexual activity – that is a fact of modern society and has

been a theme in art and literature throughout the ages.” Id. at 246. “Contemporary

movies pursue similar themes.” Id. at 247. Free Speech Coalition makes clear

that the First Amendment protects the depictions of such themes if they do not

involve the use of an actual minor engaging in such activity. In reaching this

conclusion, this Court specifically rejected the government’s argument that

depictions “virtually indistinguishable” to child pornography can be proscribed.

Id. at 249. Adding yet another layer of overbreadth, the definition of child

pornography includes a “computer-generated image[,]” 18 U.S.C. § 2256(8)(B),

which is what Free Speech Coalition struck down as unconstitutional. See

Williams, 553 U.S. at 313-14 (Souter, J., dissenting).

The Ninth Circuit reasoned that the definition of “child pornography” in §

2256(8)(B) was not implicated by this case. App. 3-4. But the factual basis for

petitioner’s guilty plea stated that the electronic file distributed by him “depict[ed]

what appears to be” a nude girl. Thus, the definition in § 2256(8)(B) was

implicated. Furthermore, the Ninth Circuit’s reliance on a 1985 opinion in the

civil context, App. 4 (citing Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 50106 (1985)), conflicts with this Court’s more recent discussions of the overbreadth

doctrine in the criminal context, which permit a facial First Amendment challenge

as long as the statute’s overbreadth is substantial in relation to its legitimate

sweep. See Stevens, 559 U.S. at 473, 482; Virginia v. Hicks, 539 U.S. 113, 118-19

(2003). Given the breadth of the § 2256(8)(B) definition, there can be little

question that § 2252A(a)(2) is substantially overbroad in relation to its legitimate

sweep. See Iancu v. Brunetti, 139 S. Ct. 2294, 2302 (2019). In sum, Free Speech

Coalition demonstrates that the definition of “child pornography” is

unconstitutionally overbroad, and therefore § 2252A(a)(2) violates the First

Amendment.

C. The amended penalties violate the First Amendment

It is one thing to sweep broadly (and overly so), as § 2252A(a)(2)(A) has

done. It is another to punish such broad conduct with the harshest of penalties.

This is yet another reason why the statute, as it now stands, violates the First

Amendment.

When originally enacted in the late 1970's, when the relevant age for

minority was 16, the federal child pornography statute carried no mandatory

minimum for a first offense and a maximum of 10 years. See 18 U.S.C. § 2252

(1978). The current penalties are far more “severe.” Free Speech Coalition, 535

U.S. at 244. A first violation of § 2252A(a)(2)(A) results in a minimum sentence

of five years and a maximum of 20 years, see 18 U.S.C. § 2252A(b)(1), even more

harsh than the then-existing penalties described as “severe” in Free Speech

Coalition. Furthermore, the current statutory scheme authorizes lifetime

supervised release. See 18 U.S.C. § 3583(k).

“While even minor punishments can chill protected speech, this case

provides a textbook example of why we permit facial challenges to statutes that

burden expression. With these penalties in force, few legitimate movie producers

or book publishers, or few other speakers in any capacity, would risk distributing

images in or near the uncertain reach of this law.” Free Speech Coalition, 535

U.S. at 244 (citations omitted).

In other words, the statute is not “narrowly tailored[,]” Packingham v. North

Carolina, 137 S. Ct. 1730, 1737 (2017), as it imposes the harshest of penalties,

including a significant mandatory minimum sentence, to an extraordinarily broad

range of material, including material that may be of literary value and inoffensive

to most viewers. The significant penalties, including a severe mandatory

minimum, Sentencing Guidelines that have been well-documented as

unreasonable, see United States v. Henderson, 649 F.3d 955 (9th Cir. 2011); see

also United States v. Hardrick, 766 F.3d 1051, 1057-58 (9th Cir. 2014) (Reinhardt,

J., concurring), and lifetime supervised release, essentially mean that whether

conduct involving less offensive material results in extraordinary sentences is

impermissibly left to the “unguided discretion” of law enforcement. City of

Houston v. Hill, 482 U.S. 451, 466-67 (1987). Such a framework is

unconstitutional, as it is “[f]ar from providing the ‘breathing space’ that ‘First

Amendment freedoms need to survive . . . .” Id. at 467 (citation omitted).

While petitioner maintains that the appropriate remedy is to strike the

statute down as unconstitutional under the First Amendment and to vacate his

conviction, see Stevens, 559 U.S. at 482, this Court should at least employ a quasiseverability analysis by which it restores the statutory framework to its original

form, in which the age of minority was set at 16, the amended and expanded

definition of “child pornography” is eliminated, and the original penalties of 0-10

years are restored. See, e.g., United States v. Booker, 543 U.S. 220, 246-48

(2005). Under this alternative remedy, this Court should vacate petitioner’s

sentence and remand for resentencing with a range of 0-10 years in custody and

supervised release of not more than three years for a Class C felony. See 18

U.S.C. §§ 3559(a), 3583(b).

CONCLUSION

For the foregoing reasons, the Court should grant this petition for a writ of

certiorari.

Respectfully submitted,

Dated: August 27, 2019