T he Honorable Ortrie D. Smith, United States District Judge for the Wester n * District of Missouri, sitting by designation. United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-3072MN

_____________ United States of America, * * Appellee, * Appeal from the United States

* District Court for the District v. * of Minnesota. * James Donald Bausch, * * Appellant. *

_____________ Submitted: February 10, 1998

Filed: March 25, 1998

_____________ Before FAGG and MURPHY, Circuit Judges, and SMITH, District Judge. *

_____________ FAGG, Circuit Judge. Using a camera made in Japan, James Donald Bausch took pictures of two girls, aged fifteen and sixteen, depicti ng “the girls in nude poses including exposed genitals,
sex ually suggestive scenes, and scenes simulating oral sex.” (Presentence Report a t 1.) The girls were models for Bausch’s drawings, and Bausch used the photographs in the girls’ absence. After the grandmother of one of the girls called the authorities, Bausch wa s convicted of possessing three or more photographs of minors engaged in-2-

sexually explicit conduct, see 18 U.S.C. § 2252(a)(4)(B) (1994), which includes both actual or simulated oral sex, see id. § 2256(2)(A), and “lascivious exhibition of th e genitals or pubic area,” id. § 2256(2)(E). The district court sentenced Bausch t o probatio n. Bausch appeals his conviction, challenging the constitutionality of § 2252(a)(4)(B). We reject Bausch’s Commerce Clause and Fi rst Amendment arguments and affirm.

Baus ch first contends Congress exceeded its authority to regulate commerc e among the States when it enacted § 2252(a)(4)(B), making intrasta te possession of child pornography a federal crime. See U.S. Const. Art. I, § 8, Cl. 3. According to Bausch, Cong ress lacks power to regulate the possession of sexually explicit photographs o f minor s when the photographs have not traveled in interstate commerce and are no t intended to be placed in commerce. We review the constitutionality of the statute de
novo. See United States v. Crawford , 115 F.3d 1397, 140 0 (8th Cir.), cert. denied , 118 S. Ct. 341 (1997).
The Commerce Clause gives Congress power to regulate three types of activity: (1) use of the channels of interstate commerce; (2) instrumentalities of interstat e
com merce, or persons or things in interstate commerce, even though the threat ma y come only from intrastate activities; and (3) activities that substantially affect interstate
commerce
. See United States v. Lopez , 514 U.S. 549, 558-59 (1995). Sectio n 2252(a)(4)(B) is a proper exercise of Congress’s commerce power under the thir d category. See United States v. Robinson , No. 97-1523, 1998 WL 78807, at *4 (1st Cir. Mar. 2, 1998).
Section 2252(a)(4)(B) prohibits the knowing possession of three or more “books, magazi nes, periodicals, films, video tapes, or other matter which contain any visua l depiction [of minors eng aged in sexually explicit conduct] . . . that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which wa s produced using materials which have been mailed or so shipped or transported . . . .”-3-

The statute contains an express jurisdictional element requiring the transp ort in interstate or foreign commerce of the visual depictions or the materials used to pro duce them. See Robinson , 1998 WL 78807, at *4; see also United States v. Lacy , 119 F.3d 742, 749 (9th Cir. 1997); United States v. Kimbrough , 69 F.3d 723, 729 (5th Cir. 1995), cert

. denied , 116 S. Ct. 1547 (1996). Thus, the statute ensures, through a case-by-cas e in quiry, that each defendant’s pornography possession affected interstate commerce

. See Robinson , 1998 WL 78807, at *4; see also Lopez , 514 U.S. at 561. In this case, the jury found Bausch took the photographs using a Japanese camera that had bee n transported in interstate or foreign commerce. See Robinson , 1998 WL 78807, at *1 (us e of camera and film made in another state satisfies Commerce Clause). W e conclude § 2252(a)(4)(B) is not beyond Congress’s commerce power, and thus is not facially unconstitutional. See id

.
Bausch next assert s § 2252(a)(4)(B) violates the First Amendment as applied in his case. Because he possessed the photographs for artistic purposes, Bausch argues the statute should be narrowly construed to exclude him from its reach. See Unite d States v. Lamb , 945 F. Supp. 441, 449 (N.D.N.Y. 19 96). Bausch did not raise his First Amendment claim in the distr ict court, so we can reverse his conviction on this ground only on a showing of plain err or. See United States v. White , 890 F.2d 1033, 1034-35 (8th Cir. 1989); United States v. Baucum , 80 F.3d 539, 541 & n.2 (D.C. Cir.), cert

. denied , 117 S . Ct. 204 (1996); United States v. McKenzie , 99 F.3d 813, 817 (7th Cir. 1996).

It is questionable whether Bausch’s photographs are works with redeemin g artist ic value. See United States v. X-Citement Video, Inc. , 513 U.S. 64, 84 (1994 ) (material covered by § 2252 is not the artistic, but “hard-core pornography”) (Scalia, J. , dissenting). Bausch does not assert the photographs themselves are art, and thei r value as an aid to create artwork is more limited and remote than art itself . In any event, we doubt the First Amendment protects the possession of photographs showing-4-

minors enga ged in sexually explicit conduct as defined in § 2256 even if th e photographs have redeeming artistic value.

We are aware the First Amendment protects nonobscene, sexually explici t material involvi ng adults, see X-Citement Video , 513 U.S. at 72, and sexually explicit materi al involving adults is not obscene if it has serious artistic value, see Miller v

. Califor nia , 413 U.S. 15, 24 (1973). When sexually explicit material depicts minors , however, the First Amendment offers less protection. See New York v. Ferber , 45 8 U.S. 747, 756-64 (1982). The government has greater leeway to regulate chil d pornogra phy because the government has a “more compelling interest in prosecutin g those who promote the sexual exploitatio n of children.” Id. at 761; see United States v. Knox , 32 F.3d 733, 749-50 (3d Cir. 1994). T hus, the Supreme Court has held a statute prohibiting the production and distribution of materials showing minors engaged i n “‘actual or simulated sexual intercourse . . . or lewd exhibition of the genitals’” is not facia lly overbroad. See Ferber , 458 U.S. at 765 (quoting statute). In so holding, th e Court said any ove rbreadth “should be cured through case-by-case analysis of the fact si tuations to which its sanctions, assertedly, may not be applied.” Id. at 773-74

. Nevertheless, the Court cast considerable doubt on the viability of an as-applie d challenge like the one in this case. The Court observed, “The value of permitting . . . photographic reproducti ons of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis ,” id. at 762, and “if it were necessary for . . . artistic value,
a person over the statutory age who perhaps looked younger could be utilized,” id. at 763. Th e Court stressed that even if some child pornography has artistic value, th e material ’s artistic value is irrelevant to the victimized child. See id. at 761. In he r concurrence, Justice O’Connor went further, suggesting “the Constitution might in fact permit [the government] to ban knowing distribution of works depi cting minors engaged in explicit sexual conduc t, regardless of the social value of the depictions.” Id. at 774. On the other hand, three other Justices said the First Amendment protects artistic , sexually explicit depictions of children. See id. at 776 (Brennan and Marshall, JJ. , concurring), 778 (Stephens, J., concurring). And in a more recent case, the Court-5-

upheld a statute that prohibited mere possession of material showi ng a nude minor when the minor’s nudity is “a lewd exhibition or involves a graphic f ocus on the genitals,” see Osborn v. Ohio , 495 U.S. 103, 113 (1990), but the statute contained an exception for material possessed for legitimate artistic purposes, see id. at 106.

We need not resolve any general issue today. Because it is unclear tha t applicati on of § 2252(b)(4)(B) to Bausch violated the First Amendment, the distric t court’s failure to address the First Amendment issue on its own accord is not plain error.

We thus affirm the district court.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.