Submitted: May 14, 2019
from United States District Court for the District of
Nebraska - Omaha.
COLLOTON, BEAM, and SHEPHERD, Circuit Judges.
Colloton, Circuit Judge.
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 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.
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
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.
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.
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.
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.
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).
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 ...