IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
UNITED STATES OF AMERICA,
Plaintiff,
v.
CHRISTOPHER S. HANDLEY
Defendant.
) Criminal No. 1:07-cr-00030
)
)
)
) REPLY MEMORANDUM IN SUPPORT OF
) DEFENDANT’S MOTION TO DISMISS
)
)
)
COMES NOW the Defendant, Christopher S. Handley, by and through his attorney, Eric
A. Chase, and files and serves his REPLY MEMORANDUM IN SUPPORT OF
DEFENDANT’S MOTION TO DISMISS.
CONGRESS MAY NOT REGULATE THE PRIVATE POSSESSION OF OBSCENE
MATERIALS
Section 1466A(b) runs directly afoul of the longstanding rule that the government may
not regulate private possession of obscene materials, except in cases involving child
pornography. See Stanley v. Georgia, 394 U.S. 557 (1969); New York v. Ferber, 458 U.S. 747
(1982).
In its Response brief, the Government does not contend that Stanley was wrongly
decided or that it is no longer good law. Instead, the Government makes the peculiar statement
that the constitutional limitations on the regulation of obscenity articulated in Stanley do not
apply to § 1466A(b) violations because the statute prohibits private possession of “obscene
material connected to interstate commerce.” Response at 5. The Government also attempts to
minimize Stanley’s relevance to § 1466A(b) by conflating the right to possess obscene materials,
which Stanley clearly spells out, with conduct that is not constitutionally protected, that is, to
receive or possess child pornography depicting actual children.
The holding in Stanely is neither as narrow nor as fact-dependent as the government
would like this court to believe. The United States Supreme Court unambiguously held that “the
First and Fourteenth Amendments prohibit making mere private possession of obscene material a
crime.” Stanley, 394 U.S. at 568. In overturning a Georgia conviction for “knowingly hav[ing]
possession of . . . obscene matter,” the Stanley court proclaimed that the “mere categorization of
[materials] as ‘obscene’ is insufficient justification for such a drastic invasion of personal
liberties guaranteed by the First and Fourteenth Amendments.” Stanley, 394 U.S. at 558, 565.
Since Stanley, the Supreme Court has repeatedly affirmed its decision and has never held that the
government could ban the private possession of obscene materials not involving actual children.
Even under a narrow interpretation of Stanley, section 1466A(b) is unconstitutional. The
plain language of the statute here criminalizes mere possession of images, both obscene and nonobscene, of “minors,” whether real or not, engaging in sexual acts. The government’s Response
Brief does not explain why Stanley should not be applied to the statute, and simply relies on the
argument that child pornography is not protected by the First Amendment. Response at 6. To be
clear, Defendant does not argue that individuals have an absolute right to possess “any viewing
or reading material at home that they prefer and be immune from the reach of law enforcement.”
Response at 6. Defendant readily acknowledges that the government may regulate the private
possession of pornography involving actual children, even in one’s own home. See, e.g., New
York v. Ferber, 458 U.S. 747 (1982), Osborne v. Ohio, 495 U.S. 103 (1990). However, the
images Mr. Handley is alleged to unlawfully possess under § 1466A(b) are only drawings, not
2
child pornography, and certainly do not involve actual children, thus the protections articulated
under Stanley apply directly to them.
The ban on possession of child pornography is an exception to the Stanley rule, not the
other way around. The Supreme Court has afforded legislatures wide latitude in regulating child
pornography, even when it is not obscene, because of the government’s compelling interest in
protecting children from sexual abuse and a record of the abuse. See Ashcroft v. Free Speech
Coalition, 535 U.S. 234 (2002); New York v. Ferber, 458 U.S. 747, 764 (1982) (“When a
definable class of material . . . bears so heavily and pervasively on the welfare of children
engaged in its production, we think the balance of competing interests is clearly struck and that it
is permissible to consider these materials as without the protection of the First Amendment.”).
These compelling interests are palpably absent from the Government’s defense of § 1466A(b)
because the statute, which bans obscene and non-obscene drawings of fictional characters, does
not offer any real protection to children. See, e.g., Free Speech Coalition, 535 U.S. at 245, 250
(concluding that while Congress may pass laws protecting children from abuse, virtual child
pornography is not intrinsically related to the sexual abuse of children).
Lastly, the Government’s contention that the holding in Stanley should not affect the case
at hand—because § 1466A(b) concerns “obscene material connected to interstate commerce”—is
utterly without any legal support. Whether the allegedly obscene speech at issue is connected to
interstate commerce is a jurisdictional fact and does not change the First Amendment
constitutional analysis of this case. That is, it does not weigh on the well-established principle
that the First Amendment clearly protects the private possession of obscene materials.
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A “PER SE OBSCENITY” STANDARD IS UNCONSTITUTIONAL
Sections 1466A(a)(2) and 1466A(b)(2) are patently unlawful because they contravene the
firmly established constitutional standard for obscenity defined in Miller v. California, 413 U.S.
15 (1973). The statute in question disposes with two of Miller’s three-prong test for obscenity;
and the Government has conceded that the statute does not “strictly conform to all the elements”
of Miller. Response Brief at 4-5 n. 1. The Government also admits that these sections of the
statute shift the determination as to what constitutes obscenity from the jury to Congress. Id.
As currently written, an individual who possesses and/or receives sexually explicit visual
representation of a minor may be convicted of either of the two offenses listed in § 1466A, if the
image in question:
(1) depicts a minor engaging in sexually explicit conduct; and is obscene;
or
(2) depicts an image that is, or appears to be, of a minor engaging in graphic
bestiality, sadistic or masochistic abuse, or sexual intercourse, including genitalgenital, oral-genital, anal-genital, or oral-anal, whether between persons of the
same or opposite sex; and lacks serious literary, artistic, political, or scientific
value.
See 18 U.S.C. § 1466A(a) & (b)
Defendant contends that the statute fails constitutional muster because part (2) ignores
two-thirds of the Miller test. In order to place certain speech into the category of obscenity, the
government must initially provide a series of procedural safeguards. To start, there must be a
statute specifically defining the sexual conduct that may not be depicted or displayed, which
ensures that speakers have fair notice of what is prohibited. See Miller, 413 U.S. at 27. Also,
the material cannot legitimately be banned without a full adversarial trial, where a trier of fact
must be available to apply the relevant “community standard” for obscenity as mandated by
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Miller. See id. at 24. Under Miller, which has been the law of the land for the past 35 years, the
trier of fact, either a judge or jury, must evaluate the material at issue and decide:
(a) whether the average person, applying contemporary community standards
would find that the work, taken as a whole, appeals to the prurient interest;
(b) whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or
scientific value.
Miller, 413 U.S. at 24 (citations omitted).
Speech is obscene, and falls outside the realm of First Amendment protection, if and only if, it
meets all three of these prongs.1 See id.
Part (2) of the statute plainly fails to require a trier of fact to consider whether the
proscribed speech appeals to the prurient interest or is patently offensive under the community
standard. The Government attempts to cure these prima facie deficiencies by arguing that the
subsections (a)(2) and (b)(2) lay down a list of visual depictions of activities that constitute “per
se obscenity.” The Government explains that “[a] per se obscenity standard is simply a
conclusion made by Congress that narrow classes of materials are the sort of hard core items that
would invariably satisfy the constitutional standards for obscenity set out in Miller.” Response
at 15. But the Government has not cited, and Defendant has not found, any post-Miller Supreme
Court or other federal cases recognizing such a “per se obscenity” standard.2
1
Part (1) of § 1466A is similarly problematic because it only references “obscene” materials and does not
spell out, but merely implies, the Miller test.
2
The Government’s argument is also belied by the language of the statute. The statute addresses obscene
image in part (1) and non-obscene images in part (2). Part (2) would be superfluous if it, too, proscribed obscene
images of minors. A plain reading of the statute clearly shows that Congress deliberately inserted the conjunction
“or” between the two parts so as to impose criminal liability on non-obscene images as well.
5
Defendant Handley is entitled to the full First Amendment protections prescribed by
Miller, not an abridged version devised by Congress. Congress is not at liberty to proscribe
certain speech it believes constitutes “per se obscenity,” if the speech involved does not meet all
of the three prongs of the Miller test. The Supreme Court has repeatedly held that Congress
cannot, on its own whim, determine that certain materials it deems objectionable are obscene and
therefore excluded from First Amendment protection. Speech is presumed to be protected under
the First Amendment unless and until the government proves it to be obscene in an adversary
proceeding. Miller, 413 U.S. at 24
The Government misreads Smith v. United States, 431 U.S. 291, 304 (1977) to wrongly
argue that “Congress has the power to statutorily define certain materials as obscenity.”
Response at 8.3 Smith does not stand for the proposition that the legislature can enact laws that
designate certain acts or images as obscene per se. To the contrary, the Smith court averred that
under the Miller test, “appeal to the prurient interest is one question of fact for the jury to
resolve” and that “patent offensiveness is to be treated in the same way.” Smith, 431 U.S. at 300,
citing Miller, 413 U.S. at 26, 30. Sections 1466A(a)(2) and (b)(2), in contrast, create a new class
of speech that Congress has already deemed to violate community standards by being patently
offensive and appealing to the prurient interest. According to the Smith court, “the question of
the community standard to apply, when appeal to prurient interest and patent offensiveness are
considered, is not one that can be defined legislatively.” While the Government is correct in
stating that a legislative body may set “substantive limitations for obscenity cases,” its reliance
on Smith is inapposite. Smith holds that a legislature may only narrow the scope of what
3
The Government cites Smith to argue that Congress “might seek to regulate all the hard-core pornography
that it constitutionally could,” Smith, 461 U.S. at 303, and that “Congress has constitutionally exercised this power
in §§ 1466A(a)(2) and (b)(2) by narrowly defining specific hard core images depicting the sexual abuse of minors as
per se obscenity.” Response at 8.
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obscene acts or images it proscribes, not expand it by making legislative determinations that
eviscerate the Miller test. Smith at 302. Smith, 431 U.S. at 303.
Similarly, the proposed Jury Instructions do not cure the statute’s constitutional defects
because they repeat the truncated, and thus void, version of the Miller test found in §
1466A(a)(2) and § 1466A(b)(2).
SECTIONS 1466A(A)(1) AND (B)(2) ARE VOID FOR VAGUENESS BECAUSE THE
TERM “MINOR” IS VAGUE AS IT CONCERNS FICTIONAL CHARACTERS
Notwithstanding the Government’s conclusory assertion that “the constitutionality of §§
1466(a)(1) and (b)(2) are not at issue” in Mr. Handley’s vagueness argument, these two
subsections are indeed at the very heart of the Motion to Dismiss.
Mr. Handley does not argue that the term “minor” is inherently vague. The vagueness in
the statute arises out of the language in subsection (c) of the statute, which states that “It is not a
required element . . . that the minor depicted actually exist.” 18 U.S.C. § 1466A(c). The
government’s definition of a “minor” as “a child under eighteen (18) years old” loses its meaning
when the “minor” at issue is not real. Fictional characters depicted in drawings have no age, and
it would be difficult, if not impossible, for a defendant (let alone a jury) to discern the intended
age of persons who do not exist.
This problem does not involve only “marginal” cases but will permeate every prosecution
under § 1466A where the “minor” depicted exists only in the mind of its creator. The statute
simply does not provide sufficient clarity as to the speech it prohibits, and relies too heavily on a
trier of fact’s arbitrary determination of the defendant’s subjective belief. See City of Chicago v.
Morales, 527 U.S. 41, 56 (1999).
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CONCLUSION
For the reasons stated above, this honorable Court should dismiss the indictment against
Mr. Handley in its entirety.
Respectfully Submitted,
UNITED DEFENSE GROUP, P.C.
By: /s/ Eric A. Chase
______________________________
Eric A. Chase
UNITED DEFENSE GROUP, LLP.
Eric A. Chase
4181 Sunswept Drive, Ste. 100
Studio City, CA 91604
Telephone (818) 487-7400
Fax (818) 487-7414
ATTORNEY FOR DEFENDANT,
CHRISTOPHER S. HANDLEY
Original filed.
CERTIFICATE OF SERVICE
I hereby certify that on 5th Day of June, 2008, I electronically filed the foregoing with the Clerk
of Court using the ECF system which will send notification of such filing to the following:
Craig Gaumer, AUSA
U.S. Courthouse Annex, Suite 286
110 East Court Ave.
Des Moines, IA 50309
8