18 U.S.C. § 1446A(a)(2) not facially overbroad

The overbreadth doctrine prohibits the government from banning unprotected speech if a substantial amount of protected speech is chilled in the process. In U.S. v. Jack Furman Dean, Jr., the Eleventh Circuit held that the Defendant failed to meet his burden of proving that 18 U.S.C. § 1446A(a)(2) was substantially overbroad. The challenged statute in this case provides in relevant part:

(a) In general.—Any person who . . . knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that—
. . .
(2)(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and
(B) lacks serious literary, artistic, political, or scientific value; or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(1) . . . .

To meet his burden, the court reasons that the Defendant would have had to identify protected materials targeted by the statute that were not child pornography and not obscene. The court noted that only a very narrow class of materials could be identified as protected by the First Amendment and punished under the statute: materials using adult actors or computer models (not actual children) to depict older teenagers engaged in non-offensive sexual acts. Given this very narrow category of constitutionally protected materials and the “legitimate sweep” of the statute, the court held that the Defendant failed to prove any substantial overbreadth and the statute was upheld as facially valid.

Further, the Eleventh Circuit, citing the Supreme Court’s decision in U.S. v. X-Citement Video, held that 18 U.S.C. § 1446A(a)(2) was narrowly tailored, reasoning that the scienter requirement applied not only to the operative verbs (possess, receive, produce, distribute), but also to the character of the products at issue. In other words, that the statute requires not only that the Defendant knowingly have some control over the items, but that the Defendant know that the items contain child pornography as characterized in subsection (2)(A).