08-3195 U.S. v. Fletcher

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Child Pornography
Scienter; constitutionality

The lack of a scienter element does not render the criminalization of production of child pornography, 18 U.S.C. 2251(a), unconstitutional.

“Given the competing social factors on both sides, we believe that § 2251 withstands constitutional scrutiny without a mistake-of-age defense. Particularly when judged in relation to the legitimate sweep of the statute, we consider it unlikely that pornography production will be substantially chilled in the narrow subset of pornography featuring ‘youthful’ appearing actors. After considering the social costs on both sides and the lack of evidence that the statute will significantly impact legitimate producers of adult non-obscene pornography, it is not difficult to conclude that the scales tip in favor of providing the most protection possible for minors by requiring strict liability as to the age of the subject. See United States v. Williams, 553 U.S. 285, 292 (2008) (overbreadth doctrine ‘seeks to strike a balance between competing social costs’). For the foregoing reasons, we join every other circuit to have considered the issue since the Ninth Circuit decided United States v. U.S. District Court and conclude that the First Amendment does not mandate a mistake-of-age defense to prosecutions under § 2251(a). See United States v. Humphrey, 608 F.3d 955, 962 (6th Cir. 2010) (First Amendment concerns do not require engrafting mistake-of-age defense onto § 2251(a)); Malloy, 568 F.3d at 173 (concluding that ‘no reasonable mistake of age defense is constitutionally required’ under § 2251(a)); Pliego, 578 F.3d at 943- 44 (rejecting Ninth Circuit’s rationale for mistake of age defense and concluding that First Amendment does not require such a defense); Deverso, 518 F.3d at 1258 (‘[T]he Constitution does not mandate a mistake of age defense under § 2251.’); United States v. Crow, 164 F.3d 229, 236 (5th Cir. 1999) (defendant’s ‘assertion that section 2251(a) is unconstitutional because it lacks a scienter requirement is meritless’).”

Affirmed.

08-3195 U.S. v. Fletcher

Appeal from the United States District Court for the Central District of Illinois, Mihm, J., Rovner, J.

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