Justice O’Connor, with whom The Chief Justice and Justice Scalia join as to Part II, concurring in the judgment in part and dissenting in part.
The Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. § 2251 et seq., proscribes the “knowin[g]” reproduction, distribution, sale, reception, or possession of images that fall under the statute’s definition of child pornography, § 2252A(a). Possession is punishable by up to 5 years in prison for a first offense, § 2252A(b), and all other transgressions are punishable by up to 15 years in prison for a first offense, § 2252A(a). The CPPA defines child pornography to include “any visual depiction … of sexually explicit conduct” where “such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct,” § 2256(8)(B) (emphasis added), or “such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct,” § 2256(8)(D) (emphasis added). The statute defines “sexually explicit conduct” as “actual or simulated- … sexual intercourse … ; … bestiality; … masturbation; … sadistic or masochistic abuse; or … lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 2256(2).
The CPPA provides for two affirmative defenses. First, a defendant is not liable for possession if the defendant possesses less than three proscribed images and promptly destroys such images or reports the matter to law enforcement. § 2252A(d). Second, a defendant is not liable for the remaining acts proscribed in § 2252A(a) if the images involved were produced using only adult subjects and are not presented in such a manner as to “convey the impression” they contain depictions of minors engaging in sexually explicit conduct. § 2252A(c).
This litigation involves a facial challenge to the CPPA’s prohibitions of pornographic images that “appea[r] to be … of a minor” and of material that “conveys the impression” that it contains pornographic images of minors. While I agree with the Court’s judgment that the First Amendment requires that the latter prohibition be struck down, I disagree with its decision to strike down the former prohibition in its entirety. The “appears to be … of a minor” language in § 2256(8)(B) covers two categories of speech: pornographic images of adults that look like children (“youthful-adult pornography”) and pornographic images of children created wholly on a computer, without using any actual children (“virtual-child pornography”). The Court concludes, correctly, that the CPPA’s ban on youthful-adult pornography is overbroad. In my view, however, respondents fail to present sufficient evidence to demonstrate that the ban on virtual-child pornography is overbroad. Because invalidation due to overbreadth is such “strong medicine,” Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973), I would strike down the prohibition of pornography that “appears to be” of minors only insofar as it is applied to the class of youthful-adult pornography.
I
Respondents assert that the CPPA’s prohibitions of youthful-adult pornography, virtual-child pornography, and material that “conveys the impression” that it contains actual-child pornography are overbroad, that the prohibitions are content-based regulations not narrowly tailored to serve a compelling Government interest, and that the prohibitions are unconstitutionally vague. The Government not only disagrees with these specific contentions, but also requests that the Court exclude youthful-adult and virtual-child pornography from the protection of the First Amendment.