Chief Justice Rehnquist, with whom Justice Scalia joins in part, dissenting.
I agree with Part II of Justice O’Connor’s opinion concurring in the judgment in part and dissenting in part. Congress has a compelling interest in ensuring the ability to enforce prohibitions of actual child pornography, and we should defer to its findings that rapidly advancing technology soon will make it all but impossible to do so. Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 195 (1997) (we “accord substantial deference to the predictive judgment of Congress” in First Amendment cases).
I also agree with Justice O’Connor that serious First Amendment concerns would arise were the Government ever to prosecute someone for simple distribution or possession of a film with literary or artistic value, such as “Traffic” or “American Beauty.” Ante, at 3—4 (opinion concurring in judgment in part and dissenting in part). I write separately, however, because the Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. § 2251 et seq., need not be construed to reach such materials.
We normally do not strike down a statute on First Amendment grounds “when a limiting instruction has been or could be placed on the challenged statute.” Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). See, e.g., New York v. Ferber, 458 U.S. 747, 769 (1982) (appreciating “the wide-reaching effects of striking down a statute on its face”); Parker v. Levy, 417 U.S. 733, 760 (1974) (“This Court has … repeatedly expressed its reluctance to strike down a statute on its face where there were a substantial number of situations to which it might be validly applied”). This case should be treated no differently.
Other than computer generated images that are virtually indistinguishable from real children engaged in sexually explicitly conduct, the CPPA can be limited so as not to reach any material that was not already unprotected before the CPPA. The CPPA’s definition of “sexually explicit conduct” is quite explicit in this regard. It makes clear that the statute only reaches “visual depictions” of:
“[A]ctual or simulated … sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; … 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 Court and Justice O’Connor suggest that this very graphic definition reaches the depiction of youthful looking adult actors engaged in suggestive sexual activity, presumably because the definition extends to “simulated” intercourse. Ante, at 9—11 (majority opinion); ante, at 4 (opinion concurring in judgment in part and dissenting in part). Read as a whole, however, I think the definition reaches only the sort of “hard core of child pornography” that we found without protection in Ferber, supra, at 773—774. So construed, the CPPA bans visual depictions of youthful looking adult actors engaged in actual sexual activity; mere suggestions of sexual activity, such as youthful looking adult actors squirming under a blanket, are more akin to written descriptions than visual depictions, and thus fall outside the purview of the statute.
The reference to “simulated” has been part of the definition of “sexually explicit conduct” since the statute was first passed. See Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. 92—225, 92 Stat. 8. But the inclusion of “simulated” conduct, alongside “actual” conduct, does not change the “hard core” nature of the image banned. The reference to “simulated” conduct simply brings within the statute’s reach depictions of hard core pornography that are “made to look genuine,” Webster’s Ninth New Collegiate Dictionary 1099 (1983) including the main target of the CPPA, computer generated images virtually indistinguishable from real children engaged in sexually explicit conduct. Neither actual conduct nor simulated conduct, however, is properly construed to reach depictions such as those in a film portrayal of Romeo and Juliet, ante, at 9—11 (majority opinion); ante, at 4 (O’Connor, J., concurring in judgment in part and dissenting in part), which are far removed from the hard core pornographic depictions that Congress intended to reach.
Indeed, we should be loath to construe a statute as banning film portrayals of Shakespearian tragedies, without some indication–from text or legislative history–that such a result was intended. In fact, Congress explicitly instructed that such a reading of the CPPA would be wholly unwarranted. As the Court of Appeals for the First Circuit has observed: