Free Response to Motion - District Court of California - California

Case 3:07-cr-00602-VRW

Document 31

Filed 04/24/2008

Page 1 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

ANDREW G. OOSTERBAAN Chief, Child Exploitation and Obscenity Section Criminal Division - Department of Justice STEVE GROCKI (VABN 41502) Trial Attorney Child Exploitation and Obscenity Section Criminal Division - Department of Justice JENNIFER TORITTO LEONARDO (LICENSED IN NEW YORK) Trial Attorney Child Exploitation and Obscenity Section Criminal Division - Department of Justice 1400 New York Ave. NW Ste. 600 Washington, DC 20005 p (202) 616-8900 f(202) 514-1793 I Attorneys for Plaintiff UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION UNITED STATES OF AMERICA, Plaintiff,
V.

No. CR 07-0602 VRW RESPONSE OPPOSING MOTION FOR A RULING THAT THE DEFENDANT IS ENTITLED TO PRESENT THE AFFIRMATIVE DEFENSE THAT HE RECEIVED AND DISTRIBUTED THE CHARGED CONTRABAND FOR LEGITIMATE FIRST AMENDMENTPROTECTED PURPOSES

18 19 20 21 22 23 24 25 26 27 28

BERNARD V. WARD, Defendant.

DATE: May 8, 2008 TIME: 2:00pm COURT: 6, 17th Floor

JUDGE: Honorable Vaugh R. Walker Now comes the United States of America, by its counsel, Andrew G. Oosterbaan, Chief, Child Exploitation and Obscenity Section, Steven Grocki, Trial Attorney, and Jennifer Leonardo, Trial Attorney, with this response in opposition to defendant's Motion for a ruling that the defendant is entitled to present the affirmative defense that he received and distributed the charged contraband for a legitimate, First Amendment-protected purpose, namely a journalistic

Case 3:07-cr-00602-VRW

Document 31

Filed 04/24/2008

Page 2 of 18

enterprise, filed by defendant, Bernard V. Ward, on April 10, 2008, for the reasons stated in the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

attached memorandum, which is incorporated herein by reference. Respectfully submitted, ANDREW G. OOSTERBAAN Chief, Child Exploitation and Obscenity Section Criminal Division - Department of Justice By: Is! Steven J. Grocki STEVE GROCKI (VABN 41502) Trial Attorney Child Exploitation and Obscenity Section Criminal Division - Department of Justice 1400 New York Ave. NW Ste. 600 Washington, DC 20005 p (202) 616-8900 f(202) 514-1793 JENNIFER TOffiTTO LEONARDO Trial Attorney Child Exploitation and Obscenity Section Criminal Division - Department of Justice 1400 New York Ave. NW Ste. 600 Washington, DC 20005 p (202) 514-5780 f(202) 514-1793

Case 3:07-cr-00602-VRW

Document 31

Filed 04/24/2008

Page 3 of 18

TABLE OF CONTENTS PRELIMINARY STATEMENT DISCUSSION I. The First Amendment Does Not Permit Journalists To Engage In Criminal Conduct. II. A Broad Based Affirmative Defense For Legitimate Literary, Artistic, Scientific, Or Educational Puiposes Is Not Supported By Either Legislative History Or Case Law. A. The Importance Of New York v. Ferber B. Federal Legislative Response To Ferber C. Ferber's Progeny Does Not Support The Availability Of A Legitimate Purpose/First Amendment Defense. III. The Lack Of A Legitimate Purpose/First Amendment Defense Does Not Make 18 U.S.C. § 2252A Overbroad. IV. Logic And Policy V. Conclusion

-1-

Case 3:07-cr-00602-VRW

Document 31

Filed 04/24/2008

Page 4 of 18

TABLE OF AUTHORITIES CASES Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) Branzenburg v. Hayes, 408 U.S. 665 (1972) Cohen v. Cowles Media Co., 501 U.S. 663 (1991) Miller v. California, 413 U.S. 15 (1973) New Yorkv. Ferber, 458 U.S. 747 (1982) Osborne v. Ohio, 495 U.S. 103 (1990) Stanley v. United States, 932 F. Supp. 418 (E.D.N.Y. 1996) United States v. Bausch, 140 F.3d 739, 741-42 (8th Cir. 1998) United States v. Bunnell, 2002 WL 927765 (D.Me. 2002) United States v. Fox, 248 F.3d 394 (5th Cir. 2001) United States v. Hibbler, 159 F.3d 233 (6th Cir. 1998) United States v. Hilton, 167 F.3d 61(1st Cir. 1999) United States v. Lamb, 945 F. Supp. 441 (N.D.N.Y. 1996) United States v. Matthews, 209 F.3d 338 (4th Cir. 2002) United States v. Ronald Bryant, No. CR-92-3 5R (W.D. Wash. May 13, 1992) United States v. Upham, 168 F.3d 532 (1st Cir. 1999) STATUTES AND OTHER AUTHORITIES 18 U.S.C. § 2252 18 U.S.C. § 2252A 2,7, 8 4, 5, 8, 9, 10, 12 PAGE passim 3,4 3,4 6, 8 passim 5, 7, 13 10 12 12 12 12 12 10,11 passim 12 12

-ii-

Case 3:07-cr-00602-VRW

Document 31

Filed 04/24/2008

Page 5 of 18

18 U.S.C. § 2256 18 U.S.C. § 3509(m) 1984 U.S.C.C.A.N. 492 H.R. Rep. No. 98-536,
98th

5, 9, 12 14 7 Cong., 2d Sess. (1983) 7, 8

-111-

Case 3:07-cr-00602-VRW

Document 31

Filed 04/24/2008

Page 6 of 18

1 2 3 4 5 6 7 8 9 10 11

ANDREW G. OOSTERBAAN Chief, Child Exploitation and Obscenity Section Criminal Division - Department of Justice STEVE GROCKI (VABN 41502) Trial Attorney Child Exploitation and Obscenity Section Criminal Division - Department of Justice JENMFER TORITTO LEONARDO (LICENSED IN NEW YORK) Trial Attorney Child Exploitation and Obscenity Section Criminal Division - Department of Justice 1400 New York Ave. NW Ste. 600
Washington, DC 20005 p (202) 616-8900 f(202) 514-1793

Attorneys for Plaintiff
12 13 14 15 16

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION UNITED STATES OF AMERICA, No. CR 07-0602 VRW MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION FOR RULING THAT THE DEFENDANT IS ENTITLED TO PRESENT THE AFFIRMATIVE DEFENSE THAT HE RECEIVED AND DISTRIBUTED THE CHARGED CONTRABAND FOR LEGITIMATE, FIRST AMENDMENT PROTECTED PURPOSES
DATE: May 8, 2008 TIME: 2:00pm COURT: 6, 17th Floor

17

Plaintiff,
18
V.

19

BERNARD V. WARD,
20

Defendant.
2]. 22 23 24 25 26 27 28

JUDGE: Honorable Vaughn R. Walker Defendant has filed a motion seeking a pretrial ruling regarding his alleged entitlement to present an affirmative defense that his receipt and distribution of child pornography was protected by the First Amendment as he was allegedly acting in furtherance of a journalistic

Case 3:07-cr-00602-VRW

Document 31

Filed 04/24/2008

Page 7 of 18

:1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

enterprise. He proffers to this Court that he will provide proof that he received and distributed the contraband, which consists of numerous hard core images of prepubescent minors engaged in sexual acts with adults, for the purpose of ftirthering his First Amendment protected right to research and comment upon "societal mores." As an alternative, Defendant argues that if his request for a First Amendment use defense is denied, then the charged statute is plainly overbroad. The defendant's motion has no merit and should be denied.
PRELIMINARY STATEMENT

In advancing his position for a First Amendment affirmative defense, the defendant alternates between two theories. First, he offers that child pornography laws contain an implicit First Amendment based as-applied affirmative defense, which applies to his case because he acted with a purported legitimate journalistic purpose. This type of challenge is generally construed narrowly and considered based on the specific facts of an individual case. Therefore, the question is whether the statute is unconstitutional, and therefore not applicable as-applied to the defendant, if a july finds he engaged in his criminal conduct as a journalist to "gather news?" Second, the defendant argues more broadly that the First Amendment protects a larger class of individuals who may technically violate child pornography laws, but do so in furtherance of a legitimate literary, artistic, scientific, or educational purpose. He believes that because his journalistic news gathering is a legitimate literary purpose, he would then fall within this category of individuals to which this broad implicit affirmative defense is available. To support this position, the defendant cites to the landmark child pornography case, New York v. Ferber, 458 U.S. 763 (1982), the legislative history of a parallel child pornography statute, 18 U.S.C. 2252, passed shortly after Ferber, and a few district court opinions interpreting both. These decisions, discussed below, recognized such an affirmative defense as-applied to their particular defendants (academics and a psychiatrist). Importantly, however, none of these defendants were journalists. Further, the legal underpinnings for a broad-based legitimate purpose affirmative defense the defendant advances (also advanced identically by a journalist defendant in United States v. Matthews, 209 F.3d 338 (4th Cir. 2000) ,which the court rejected) was clearly foreclosed by the Supreme Court in Ferber when it distinguished child pornography

-2-

Case 3:07-cr-00602-VRW

Document 31

Filed 04/24/2008

Page 8 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

laws from obscenity laws. Therefore, as will be more fully explained below, the defendant cannot sneak his personal as-applied challenge for journalists, which is not supported by the law, under this broader framework, which also finds no support in law or legislation. DISCUSSION I. The First Amendment Does Not Permit Journalists to Engage in Criminal Conduct. Throughout his argument, the defendant states his criminal conduct was "an expert exercise of his First Amendment-protected right to research and comment upon societal mores" or "investigate a story on child pornography [by] receiv[ing] andlor distribut[ing] otherwise contraband imagery." Def. Memorandum of Points and Authorities, p. 2. He attempts to point out that "the Ferber court never held that receipt and/or distribution of child pornography might not be necessary to entirely legitimate, First Amendment-protected journalistic activity." Id., p. 7. In short, he categorically states that he should be able to argue, and obtain an instruction from this Court to support, th fact that this journalistic purpose is a lawfully recognized defense to what would otherwise be criminal conduct, the distribution and receipt of numerous images of hard core child pornography. To the contrary, there is no legal support for defendant's position. Indeed, if one views the defendant's argument as a true as-applied defense based on his purported journalistic purpose, then the "First Amendment" defense should be available to journalists not only in the context of child pornography cases where the First Amendment has figured prominently, but also for any general criminal law. For example, does a journalist have essentially First Amendment protection for engaging in criminal conduct for the purpose of researching drugs or terrorism in America? The case law definitively says no. See Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991); Branzburg v. Hayes, 408 U.S. 665 (1972). In Cowles Media Co., the Supreme Court stated expressly that a "well-established line of decisions [holds] that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news." Cowles Media Co., 501 U.S. at 668. Thus, while the First Amendment protects "news gathering" activities generally, it does not grant a "license on either the reporter or his news sources to violate valid criminal laws." Branzburg, 408 U.S. at 691.

-3-

Case 3:07-cr-00602-VRW

Document 31

Filed 04/24/2008

Page 9 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

In United States v. Matthews, 209 F.3d 338 (4th Cir. 2000), the only reported decision to squarely address a request to recognize a legitimate purpose defense for a journalist in a child pornography case, the court pointed out that while the defendant did not claim that a journalist engaged in news gathering activities is entitled to special exemption from Section 2252, certain amici did argue for such an exception. Matthews, 209 F.3d at 338, n. 3. In plainly refuting this "journalism" exception, the Matthews court, citing Cowles Media Co. and Brazenburg, stated that "Amici's argument is ill-advised." Id. The First Amendment does not grant journalists the authority to violate valid criminal laws applicable to the general public. The laws against distribution and receipt of child pornography are of course generally applicable and do not single out the press. II. A Broad Based Affirmative Defense For Legitimate Literary, Artistic, Scientific, Or Educational Purposes Is Not Supported By Either Legislative History Or Case Law. Because the law provides no First Amendment based license to journalists to violate laws, the defendant attempts to advance his position by confusing the law as it relates to obscenity and child pornography. In this way, the defendant's motion is a bit of a moving target. He seemingly shifts gears between a narrow as-applied defense for a legitimate journalist purpose to a broader-based affirmative defense (or as-applied defense) for all legitimate literary, artistic, scientific or educational purposes. In making this shift, the defendant repeatedly invokes the First Amendment but never attempts to distinguish between content-based First Amendment protection (on which most child pornography discussion has centered) and use-based First Amendment protections (which can be found more prominently in obscenity discussions). The defendant in this case is charged with violating 18 U.S.C. § 2252A(a)(2), and is specifically charged with the distribution and receipt of images depicting real children per 18 U.S.C. § 2256(8)(A). Section 2252A was passed in 1996 pursuant to the Child Pornography Prevention Act (CPPA) as a supplemental statute to 18 U.S.C. § 2252, and in most respects (excepting a now invalidated provision in 2252A for "virtual" and "youthful adult" child pornography), is the same. Importantly, as it bears on the ultimate issue proposed by defendant's motion regarding a broad based affirmative defense for any legitimate literary, artistic, scientific, or educational purpose, it is useful to examine how these statutes' evolved following a distinct -4-

Case 3:07-cr-00602-VRW

Document 31

Filed 04/24/2008

Page 10 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

legal departure from obscenity law. A. The Importance Of New York v. Ferber In the landmark Supreme Court ruling of New York v. Ferber, 458 U.S. 747 (1982), child pornography involving the sexual abuse of actual minors, as a class of speech, was deemed outside the First Amendment's protection. Contrary to the defendant's assertions, this ruling applied to both the production and use (distribution, receipt, transportation, and possession) of child pornography, a fact supported recently in Ashcrofi v. Free Speech Coalition, 535 U.S. 234, 235 (2002). See also Osborne v. Ohio, 495 U.S. 108 (1990) (holding Constitutional Ohio law prohibiting possession of child pornography, which was enacted to protect well-being of minors and destroy the market for the exploitive use of children by penalizing those who possess and view offending materials). This decision clearly signaled that obscenity and child pornography were distinct legal concepts. After Ferber, child pornography jurisprudence departed from the line of cases concerning obscenity that had guided child pornography prosecutions up to that point. Specifically, it meant that a legislature was "entitled to greater leeway in the regulation of pornographic depictions of children" so long as the harms to children (identified below a certain age), as articulated in Ferber, remained the justification for the law. Ferber, 458 U.S. at 756. Importantly, regarding the use of such materials, the Ferber court added: [the] distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation. Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled. Id. at 759. With this statement, the Ferber Court unequivocally addressed not only the production of child pornography by "creators," but also those who exist within the distribution network for child pornography.

24 25 26

With the shift away from obscenity law, the Ferber Court also addressed the obvious necessity of shifting away from the legal standard for obscenity articulated in Miller v. Calfornia, 413 U.S. 15 (1973), commonly referred to as the Miller test. See generally Ferber,

27 28

458 U.S. at 759-767. That standard, created approximately 10 years prior to the Ferber decision, attempted to balance the government's interest in criminalizing obscene material with the First -5-

Case 3:07-cr-00602-VRW

Document 31

Filed 04/24/2008

Page 11 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Amendment right to free speech by including a provision requiring that the material lacked any serious literary, artistic, scientific, social, or educational value. Id. In Ferber, however, the majority flatly declined to carve out an exception in child pornography laws for material that might have literary, artistic, scientific, or educational value as it found the harm addressed by child pornography laws was of unsurpassing importance. Id. The Court stated "[w]e consider it

unlikely that visual depictions of children performing sexual acts or lewdly exhibiting their genitals would often constitute an important and necessary part of a literary performance or scientific or educational work." Id. at 756. The Court added, "a work which, taken on the whole, contains serious literary, artistic, political, or scientific value may nevertheless embody the hardest core of child pornography. 'It is irrelevant to the child [who has been abused] whether or not the material ... has a literary, artistic, political or social value." Id. at 763. See also generally Free Speech Coalition, 535 U.S. 234(while invalidating definitions for child pornography for "virtual" or "youthful adult" child pornography, the Court upheld 18 U.S.C. 2252A provisions related to the sexual abuse of actual minors including possession of child pornography despite an absence of a requirement for no literary, artistic, scientific, or educational value). The defendant attempts to circumvent the holding of Ferber and its progeny by citing heavily from two concurring opinions in Ferber, the first written by Justice Brennan and joined by Justice Marshall, and the other written independently by Justice Stevens, to support his contention that the Ferber majority does not address the "use" issue and that Ferber supports a legitimate use affirmative defense. Def. Memorandum of Points and Authorities, p. 9. The problem with this tactic is two-fold. One, the defendant misses the fact that the Ferber decision deals specifically with a case of distribution and not production. In fact, the defendant in Ferber was a proprietor of a Manhattan bookstore who sold two films he did not create devoted almost exclusively to depicting two young boys masturbating. Ferber, 458 U.S. at 751. He was then charged under New York law with two counts controlling the dissemination of child pornography. Thus,when the defendant claims that "[a]ll three opinions [the majority, O'Connor, and Brennan] ..., and their varying views about First Amendment protection, are focused at the production-in other words, the creation and distribution by the creators-of

-6-

Case 3:07-cr-00602-VRW

Document 31

Filed 04/24/2008

Page 12 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

offending material, the target of the New York law," he is flat wrong. On the contrary, the Ferber majority speaks directly to the distribution issue concluding the network for child pornography must be dismantled to stop the sexual abuse of minors to create such images. Id. at 759. There is nothing within the majority opinion, or subsequent Supreme Court cases interpreting its meaning, that suggests a charge of distribution, receipt, or possession of child pornography requires a finding that the material or circumstances in how it is used has no literary, artistic, scientific, or educational value. Id.; See also generally Osborne, 495 U.S. 108; Free Speech, 535 U.S. 234. Second, Stevens' concurring opinion in Ferber, which he wrote independently, regarding the necessity for a literary "good" use exception was not shared by the rest of the Court. Furthermore, it has clearly been tempered over the years as Justice Stevens joined the Free Speech majority in reiterating that Ferber supports prohibitions against child pornography even if the laws do not contain any exception for literary, artistic, scientific, or educational value. See Free Speech, 535 U.S. at 238. Ultimately, there is no support for a broad based First Amendment affirmative defense for legitimate use in the Ferber decision, a fact that Free Speech solidified once and for all.
B. Federal Legislative Response To Ferber.

Shortly after the Ferber decision, Congress revised Section 2252 by eliminating provisions pertaining to obscenity and commercial purpose, thereby bringing the federal law in close alignment to the New York law upheld in Ferber. See H.R. Rep. No. 98-536, at 2-7 (1983), reprinted in 1984 U.S.C.C.A.N. 492, 493-98. Notably, the new law specifically outlawed the production, distribution, receipt, and possession of child pornography. Id. With the obscenity requirement expressly eliminated, the third prong of the Miller Test', which requires that obscene material must lack serious literary, artistic, scientific, social, or educational value, was also eliminated. Id. 'The Miller test requires obscene materials, taken as a whole to satisfy three requirements: 1) it must appeal to a prurient interest, 2) it must be portrayed in a patently offensive way, and 3) it must lack any serious literary, artistic, political, or scientific value. Miller, 413 U.S. at 23. -7-

Case 3:07-cr-00602-VRW

Document 31

Filed 04/24/2008

Page 13 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

It is worth noting that since 1984, Section 2252 has been amended several times. In 1998, an affirmative defense was added to the statute for those who possess less than three matters containing child pornography and in good faith took reasonable steps to destroy each such visual depiction. Despite these considerable revisions and additions, Section 2252 still has no provision for a broad based affirmative defense for literary, artistic, scientific, social, or educational value. Similarly, the charged statute in this case, Section 2252A, has also been revised numerous times since its inception in 1996, most recently in 2006, and has never contained a provision for the type of affirmative defense the defendant argues is implicit in its 1984 version of Section 2252. To overcome this obvious lack of support for his position in the statute, the defendant speaks at length about the legislative testimony from 1984 that discussed the exclusion or inclusion of an affirmative defense for literary, artistic, scientific, social, or educational value. Specifically, the defendant focuses on the testimony of a Justice Department official during a hearing in 1984. As such, the defendant argues for the recognition of an implicit broad based First Amendment defense for all proper literary, artistic, scientific, social, or educational use, that Congress expressly declined to provide at the time and in the 24 years since. At best, the 1984 legislative history provides dubious support for an implicit as-applied defense in a very small number of circumstances, none of which apply here. However, the number of Congressional revisions to Sections 2252 and 2252A without the addition of any "good use" affirmative defenses foreclose defendant's claim. Furthermore, even if a limited as-applied legitimate use defense existed, the defendant here, as a journalist, cannot claim any legal support for such a narrow as-applied exemption for himself from valid general child pornography laws. Free Speech Coalition comments directly on the scope of prohibition Ferber authorized: "Like the law in Ferber, the CPPA seeks to reach beyond obscenity, and it makes no attempt to conform to the Miller standard. For instance, the statute would reach visual depictions, such as movies, even if they have redeeming social value." 535 at 238. Ultimately, the Court distinguishes the CPPA's ban on "virtual" or "youthful adult" child pornography from child pornography which, under Ferber, involved actual children engaged in sexual acts and may be banned without regard to whether it depicts works of value. In making this distinction, the Court

-8-

Case 3:07-cr-00602-VRW

Document 31

Filed 04/24/2008

Page 14 of 18

1 2 3 4 5 6 7 8 9 10 11 12

certainly clarified the reach of Ferber and 2252A as written, which includes the prohibition of the transportation, distribution, receipt, and possession of child pornography without regard for redeeming social value so long as the nexus to an actual child being exploited.. C. Ferber's Progeny Do Not Provide For A First Amendment or Legitimate Purpose Defense. The defendant cites to a few district court cases that he argues have partially addressed the question of a First Amendment use defense in the context of child pornography. Notably, a review of these decisions reveals that none, other than Matthews, addressed the use of child pornography by journalists engaged in "news gathering," and none recognized a broad-based affirmative defense for all legitimate literary, artistic, scientific, or educational purposes for which the defendant advocates. At best, a few of the district court opinions-issued before the Free Speech decision and many Congressional revisions to federal child pornography laws-recognized narrow, case-specific, as-applied affirmative defenses.

13 14

First, the defendant cites to Stanley v. United States, 932 F.Supp. 418 (E.D.N.Y. 1996), which was a forfeiture case. In his recitation of the holding of the case, the defendant states that

15 the "district court assumed a 'literary, scientific, or educational exception' to the forfeiture statute 16 exists..." Def. Memo in Support of Mot. P. 3. Actually, this statement misrepresents the true 17 holding of the case. As the court in US. v. Lamb, 945 F.Supp. 441, 449 (N.D.N.Y. 1996), also 18 cited by the defendant, articulated later that same year, Stanley "holds that the United States may 19 punish persons trafficking in materials covered by the Protection of Children Act that do possess 20 redeeming social and scientific qualities." In fact, the Stanley court ultimately concluded that 21 "[w]ithout a viable exception, the items seized from Stanley are subject to forfeiture pursuant to 22 18 U.S.C. 2254(a)(1)."2 Stanley, 932 F. Supp. at 421. 23 Turning to the Northern District of New York's decision in Lamb, supra, the trial judge 24 25 26 27 28 2The defendant's confusion concerning the holding of the case most likely stems from the fact that after concluding that there is no exception for serious literary, artistic, scientific, social, or educational value, the court goes on to state "Assuming for a moment that a[n] ... exception exists, the seized items would be subject to forfeiture because Stanley fails to qualify as a bona fide researcher." Stanley, 932 F. Supp. at 421. -9-

Case 3:07-cr-00602-VRW

Document 31

Filed 04/24/2008

Page 15 of 18

1 2 3 4 5

concluded that Congress, in expressly rejecting such an affirmative defense, 'lust as easily [could have meant] that Congress acknowledged that some small amount of material literally covered by the statute was nonetheless protected by the guarantee of free speech." Lamb, 945 F. Supp at 449. Therefore, the judge reasoned a defendant could assert as an affirmative defense any of the reasons cited in Ferber s concurring opinions, including Stevens' "good use" exception. Id. The Fourth Circuit in United States v. Matthews, supra, disagreed with this reasoning and found that

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Ferber did not permit such an expansive defense. Unlike Lamb, the Matthews court's reasoning, acting with the benefit of additional enacted legislation from 1996 to 2000, comports with the Supreme Court's 2002 decision in Free Speech, which clarified Ferber s reach and the legislative interpretation for 2252A. See generally Free Speech, 535 U.S. 234. As stated in Matthews, "Congress enacted a statute that would subject to criminal prosecution not only child pornography dealers, but also those who lack a profit motive, including individuals, like journalists, whose professional standing might help to disguise afetish for such material." Matthews, 209 F.3d at 350 (emphasis added). The defendant attempts to assert that the Fourth Circuit in Matthews, as the only appellate court to consider the issue squarely as it pertained to a journalist, simply got it wrong. In Matthews, the defendant was similarly situated to the defendant in the current case. He was a journalist who claimed to be engaging in the trading of child pornography over the Internet for the purpose of conducting "free lance" research for a story. Importantly, unlike the defendant here, Matthews backed away from asserting that journalists were entitled to a First Amendment exemption from the enforcement of child pornography laws. Left with a broad based legitimate use/First Amendment defense (identical to the defendant's alternate argument here) for any valid literary, artistic, scientific, or educational purpose, the Matthews court, in a well reasoned, lengthy opinion, concluded neither Ferber nor the legislative history support such an affirmative defense. It stated: To recapitulate, we believe that Ferber cannot fairly be read to permit a defense of the sort urged by Matthews. The asserted defense, apparently derived from the obscenity cases, fails to account for the discrete set of harms to which child pornography legislation is addressed. Such a defense would result in far more possibly impermissible applications of the statute than Ferber envisaged, fail to view the depictions in isolation as Ferber directed, and allow the dissemination of depictions that threaten the very harms -10-

Case 3:07-cr-00602-VRW

Document 31

Filed 04/24/2008

Page 16 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

to children described in Ferber. Matthews, 209 F.3d at 348. The other cases cited by the defendant, United Stated v. Upham, 168 F.3d 532 (1St Cir. 1999), United States v. Hibbler, 159 F.3d 233, 236 (6th Cir. 1998), and United States v. Hilton, 167 F.3d 61(1st Cir. 1999), were also cited by the defendant in Matthews. None of those cases support a broad based legitimate use/First Amendment defense. As indicated in Matthews, neither the Upham nor Hibbler court [as well as Hilton, Bunnell, and Bryant] directly considered the breadth of a possible First Amendment defense to § 2252. We believe that careful consideration of that question compels the conclusion we have reached here and note that another of our sister circuits seems to agree. See United States v. Bausch, 140 F.3d 739, 741-42 (8th Cir. 1998) (refusing to find plain error where defendant failed to raise at trial his alleged First Amendment defense that he possessed child pornography as an aid to create artwork, and observing that the Ferber Court 'cast considerable doubt on the viability of an as-applied challenge like the one in this case"). Matthews, 309 F.3d at 338 n. 8. (internal citation omitted). Indeed, it is clear afler reviewing those decisions that those courts dealt only with very narrow asapplied defenses. Further, these decisions preceded the Free Speech decision, as well as further extensive legislative amendments to child pornography laws, which greatly clarified the full intent of, and legal supported for, such laws.3 III. The Lack Of A Legitimate Purpose/First Amendment Affirmative Defense Does Not Make 18 U.S.C. § 2252A Overbroad. The defendant argues, in the absence of a recognized implicit broad First Amendment defense, that federal child pornography laws, including 2252A, must be overbroad. To support

18 this position, the defendant misreads Ferber and Osborne, and ignores Free Speech, to conclude 19 that the Supreme Court has never examined the issue concerning whether a statute that expressly 20 excluded the possibility of any legitimate purpose/First Amendment exception or defense could 21 22 23 24 25 26 27 28 3Another case cited by the defendant, United States v. Hilton, 167 F.3d 61(1st Cir. 1999), also does not support a First Amendment defense when an actual child is used in the production of child pornography. The portion of the Hilton opinion cited by the defendant was written in the context of 2252A's prohibition against images of "youthful adult" child pornography, a portion of the statute later struck down by Free Speech. United States v. Bunnell, 2002 WL 927765 (D.Me. 2002), an unpublished opinion, takes the Hilton reasoning and misapplies it to 2256(8)(A) prosecutions (albeit in narrow as-applied situations), but offers little support for doing so. Additionally, the Bunnell court does so, despite noting the opposite view of Matthews and a 5th Circuit opinion in United States v. Fox, 248 F.3d 394 (5th Cir. 2001), vacated, -S.Ct,20WL681(remandfocsitlgh of Ashcrofi v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389 (2002). -11-

Case 3:07-cr-00602-VRW

Document 31

Filed 04/24/2008

Page 17 of 18

1
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

survive an overbreadth attack. Further, he returns to Justice Stevens' concurrence in Ferber to argue that a First Amendment use defense must remain if any child pornography statute is to survive an overbreadth challenge. Unfortunatley, Ferber, Osborne, and Free Speech dealt at length with the question of overbreadth and each concluded that so long as the child pornography statute is sufficiently tailored (by age and content) and relates to the protection of actual children, it does not require, like obscenity cases, a defense for legitimate use. Moreover, Congress, responding to this dictate, repeatedly has passed its child pornography laws without such a defense, either expressly or implicitly.
IV. Logic And Policy.

The defendant concludes his argument by turning to logic and policy, stating that it is irrational to prosecute and convict those who act only with the best of intentions when it comes to child pornography crimes. The defendant argues that these individuals do not commit the harms child pornography laws are designed to eliminate. On the contrary, the defendant distributed images of real children engaged in sexual acts. He cannot recover those images and has no control over what use others make of them. Aside from the Ferber Court's recognition that the exploited child, whose harm is essentially sacrificed in the name of a "good story," does not care how or why his or her permanent record of sexual abuse is disseminated, logic dictates that society cannot allow do-gooders to commit crimes, even for the best of reasons. Child pornography is controlled contraband and thus is best analogized to another proscribed contraband, illicit drugs. In the same way that writers cannot legally trade in drugs to investigate drug cartels or doctors cannot maintain illegal stashes of narcotics in their homes to conduct side "research," they cannot do the same with child pornography. To allow such broad based, legally recognized "First Amendment" defenses would invite every defendant charged with child pornography crimes to suddenly become a legitimate researcher educating the masses via their web blog.4

4The defendant invites comparison of his own situation to that of members of law enforcement and the judicial system. Aside from not being entitled to any status of acting under a public authority, the defendant's assertions are, as the court in Lamb articulated, pure sophistry.
-12-

Case 3:07-cr-00602-VRW

Document 31

Filed 04/24/2008

Page 18 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

V. Conclusion

For these reason, the United States respectfully requests the Court deny defendant's motion.5

Respectfully submitted, ANDREW G. OOSTERBAAN Chief, Child Exploitation and Obscenity Section Criminal Division - Department of Justice By: Is! Steven J. Grocki STEVE GROCKI (VABN 41502) Trial Attorney Child Exploitation and Obscenity Section Criminal Division - Department of Justice 1400 New York Ave. NW Ste. 600 Washington, DC 20005 p (202) 616-8900 f(202) 514-1793 JENNIFER TORETTO LEONARDO Trial Attorney Child Exploitation and Obscenity Section Criminal Division - Department of Justice 1400 New York Ave. NW Ste. 600 Washington, DC 20005 p (202) 514-5780 f(202) 514-1793

Moreover, the recently enacted 18 U.S.C. 3509(m) states explicitly that "[i]n any criminal proceeding, any property or material that constitutes child pornography (as defined by section 2256 of this title) shall remain in the care, custody, and control of either the Government or the court. 18 U.S.C. 3509(m). With this explicit regulation, Congress mandates that the Government must control child pornography contraband and therefore would obviously not be criminally liable for its possession. 5The defendant asks the Court to take judicial notice of the brief attached to his motion. The government would object to the Court taking such notice. While it is apparently that the brief was filed in the Matthews Case and the government understands that the Court may consider it as part of motions practice, it is unnecessary to take judicial notice of it (as it is an argument and not fact) to do so. -13-