The Honorable Ortrie D. Smith, United States District Judge for the Western

*

District of Missouri, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-3072MN

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the District

v. * of Minnesota.

*

James Donald Bausch, *

*

Appellant. *

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 Submitted: February 10, 1998

Filed: March 25, 1998

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

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FAGG, Circuit Judge.

Using a camera made in Japan, James Donald Bausch took pictures of two girls,

aged fifteen and sixteen, depicting “the girls in nude poses including exposed genitals,

sexually suggestive scenes, and scenes simulating oral sex.” (Presentence Report at

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 was convicted of possessing three or more photographs of minors engaged in
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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 the

genitals or pubic area,” id. § 2256(2)(E). The district court sentenced Bausch to

probation. Bausch appeals his conviction, challenging the constitutionality of §

2252(a)(4)(B). We reject Bausch’s Commerce Clause and First Amendment arguments

and affirm.

Bausch first contends Congress exceeded its authority to regulate commerce

among the States when it enacted § 2252(a)(4)(B), making intrastate possession of child

pornography a federal crime. See U.S. Const. Art. I, § 8, Cl. 3. According to Bausch,

Congress lacks power to regulate the possession of sexually explicit photographs of

minors when the photographs have not traveled in interstate commerce and are not

intended to be placed in commerce. We review the constitutionality of the statute de

novo. See United States v. Crawford, 115 F.3d 1397, 1400 (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 interstate

commerce, or persons or things in interstate commerce, even though the threat may

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). Section

2252(a)(4)(B) is a proper exercise of Congress’s commerce power under the third

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,

magazines, periodicals, films, video tapes, or other matter which contain any visual

depiction [of minors engaged in sexually explicit conduct] . . . that has been mailed, or

has been shipped or transported in interstate or foreign commerce, or which was

produced using materials which have been mailed or so shipped or transported . . . .”
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The statute contains an express jurisdictional element requiring the transport in interstate

or foreign commerce of the visual depictions or the materials used to produce 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-case

inquiry, 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 been

transported in interstate or foreign commerce. See Robinson, 1998 WL 78807, at *1

(use of camera and film made in another state satisfies Commerce Clause). We

conclude § 2252(a)(4)(B) is not beyond Congress’s commerce power, and thus is not

facially unconstitutional. See id.

Bausch next asserts § 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 United

States v. Lamb, 945 F. Supp. 441, 449 (N.D.N.Y. 1996). Bausch did not raise his First

Amendment claim in the district court, so we can reverse his conviction on this ground

only on a showing of plain error. 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 redeeming

artistic 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 their

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
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minors engaged in sexually explicit conduct as defined in § 2256 even if the

photographs have redeeming artistic value. 

We are aware the First Amendment protects nonobscene, sexually explicit

material involving adults, see X-Citement Video, 513 U.S. at 72, and sexually explicit

material involving adults is not obscene if it has serious artistic value, see Miller v.

California, 413 U.S. 15, 24 (1973). When sexually explicit material depicts minors,

however, the First Amendment offers less protection. See New York v. Ferber, 458

U.S. 747, 756-64 (1982). The government has greater leeway to regulate child

pornography because the government has a “more compelling interest in prosecuting

those who promote the sexual exploitation of children.” Id. at 761; see United States v.

Knox, 32 F.3d 733, 749-50 (3d Cir. 1994). Thus, the Supreme Court has held a statute

prohibiting the production and distribution of materials showing minors engaged in

“‘actual or simulated sexual intercourse . . . or lewd exhibition of the genitals’” is not

facially overbroad. See Ferber, 458 U.S. at 765 (quoting statute). In so holding, the

Court said any overbreadth “should be cured through case-by-case analysis of the fact

situations 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-applied

challenge like the one in this case. The Court observed, “The value of permitting . . .

photographic reproductions 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. The Court stressed that even if some child pornography has artistic value, the

material’s artistic value is irrelevant to the victimized child. See id. at 761. In her

concurrence, Justice O’Connor went further, suggesting “the Constitution might in fact

permit [the government] to ban knowing distribution of works depicting minors engaged

in explicit sexual conduct, 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
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upheld a statute that prohibited mere possession of material showing a nude minor when

the minor’s nudity is “a lewd exhibition or involves a graphic focus 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 that

application of § 2252(b)(4)(B) to Bausch violated the First Amendment, the district

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.