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United States v. Rouse

United States Court of Appeals, Eighth Circuit

September 3, 2019

United States of America, Plaintiff- Appellee,
v.
Matthew Rouse, Defendant-Appellant.

          Submitted: May 14, 2019

          Appeal from United States District Court for the District of Nebraska - Omaha.

          Before COLLOTON, BEAM, and SHEPHERD, Circuit Judges.

          Colloton, Circuit Judge.

         Matthew Rouse entered a conditional guilty plea to one count of distribution of child pornography. See 18 U.S.C. § 2252A(a)(2). He reserved his right to appeal the district court's[1] denial of his motion to dismiss the indictment. On appeal, Rouse argues that the statute of conviction, as applied to him in this case, violates his rights under the First and Fifth Amendments. We conclude that the conviction is constitutional and affirm the judgment.

         I.

         Matthew Rouse was 37 years old when he engaged in a sexual relationship with B.A., a 16-year-old girl. On multiple occasions, the two met in Omaha to have sexual intercourse. During the relationship, Rouse suggested that they record their sexual activity. B.A. agreed, and Rouse used his cell phone to film the pair engaged in sexual acts. Rouse sent the videos to B.A. over the internet, but did not distribute them to anyone else. B.A. also sent the videos, along with other explicit photographs that she had taken of herself, back to Rouse.

         B.A.'s mother discovered the relationship and found the video recordings on B.A.'s phone. She notified Rouse's employer of the relationship and recordings; the employer notified the State Patrol. Although the sexual activity did not violate Nebraska state law because the age of consent is sixteen, see Neb. Rev. Stat. § 28-319.01, the State charged Rouse with violating Nebraska criminal prohibitions on the possession of child pornography. See id. §§ 28-813.01, 28-1463.02.

         A federal grand jury later charged Rouse with committing two federal offenses arising from the videos: enticement of a minor to engage in sexually explicit conduct for the purposes of creating a visual depiction, see 18 U.S.C. § 2251(a), and distribution of child pornography. See id. § 2252A(a)(2). Rouse moved to dismiss the indictment on the grounds that prosecuting him for filming his lawful activity violated his First Amendment right to free speech and a Fifth Amendment right to privacy. The district court denied the motion, concluding that child pornography is categorically excluded from First Amendment protections, and that no right to privacy protects the production of pornographic material involving a minor.

         Rouse entered a conditional guilty plea to distribution of child pornography while reserving his right to appeal the denial of his motion. The government agreed to dismiss the enticement charge, and the district court sentenced Rouse to 96 months' imprisonment. We review the district court's ruling de novo.

         II.

         Rouse first contends that the child pornography statute, § 2252A(a)(2), is unconstitutional as applied to him because it violates his First Amendment right to free speech. The district court rejected this contention on the ground that child pornography is categorically excluded from protection under the First Amendment.

         "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem." Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942). In New York v. Ferber, 458 U.S. 747 (1982), the Supreme Court held that "child pornography" is "without the protection of the First Amendment." Id. at 763-64. The Court has reiterated that conclusion several times, most recently in United States v. Stevens, 559 U.S. 460, 471 (2010). See also Ashcroft v. Free Speech Coal., 535 U.S. 234, 245-46 (2002); Osborne v. Ohio, 495 U.S. 103, 110 (1990).

         Rouse nonetheless contends that Stevens compels the conclusion that the videos that he created of B.A. engaging in sexual activity are protected speech. Stevens rejected the use of a balancing test to decide whether depictions of animal cruelty were categorically excluded from First Amendment protection. To reconcile its decisions on child pornography, the Court emphasized that Ferber "did not rest on [a] 'balance of competing interests' alone," but presented a "special case": "The market for child pornography was 'intrinsically related' to the underlying abuse, and was therefore 'an integral part of the production of such materials, an activity illegal throughout the Nation.'" Stevens, 559 U.S. at 471 (quoting Ferber, 458 U.S. at 759, 761, 764). The Court explained that Ferber's analysis was "grounded . . . in a previously recognized, long-established category of unprotected speech," namely, "speech or writing used as an integral part of conduct in violation of a valid criminal statute." Id. (quoting Ferber, 458 U.S. at 762). Applying Stevens, we ...


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