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. INTERNET
Two circuit courts have upheld the constitutionality of the Child Pornography Preventioin Act, which Congress enacted to combat child pornography in cyberspace. The First Circuit rejected both overbreadth and vagueness challenges to the Act, explaining that a few possibly impermissible applications do not warrant its condemnation. The Eighth Circuit held that a conviction prior to an amendment expressly including data stored on disks was not a violation of the ex post facto clause.
Hilton (lst Circuit)
Hilton was criminally indicted for possession of disks containing images of child pornography, in violation of the CPPA (18 USC 2252A). He moved to dismiss, claiming the Act was unconstitutional. The district court ruled in his favor and the government appealed (United States v. Hilton, No. 98-1513 (1st Cir. Jan. 27, 1999)). For background, see "Current Status of Child Porn Laws," 24 CLTR 12.
Lessons from Prior Decisions
The First Circuit reviewed prior Supreme Court pornography cases, extracting four lessons. First, sexually explicit material may be seen to fall along a constitutional continuum entitling it to varying degrees of protection. Second, considerations beyond preventing the abuse of actual children can qualify as compelling government objectives where child pornography is concerned. Third, a criminal statute must confine government authority by adequately defining the type of image that is forbidden. And finally, wherever the constitutional demarcation is properly drawn, greater leeway must be afforded legislatures to regulate sexual depictions of children.
"Appears to Be" Standard Not Overbroad
Hilton's overbreadth challenge was based on the CPPA's prohibition of material that "appears to be" of a minor. After examining the legislative record, the court found that the language was intended to target only a narrow class of images:
visual depictions "which are virtually indistinguishable to...