*The HONORABLE GEORGE F. GUNN, JR., United States District

Judge for the Eastern District of Missouri, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-2027

___________

Gary C. Gilmour, *

*

Petitioner - Appellant, *

*

v. * Appeal from the United States

* District Court for the

Rusty Rogerson, Warden, Iowa * Southern District of Iowa.

Medical Classification Center; *

Thomas Miller, Attorney General *

of the State of Iowa, *

*

Respondents - Appellees. *

___________

 Submitted: January 17, 1997

 Filed: June 27, 1997

___________

Before LOKEN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and GUNN,*

District Judge.

___________

LOKEN, Circuit Judge.

In New York v. Ferber, 458 U.S. 747, 765 (1982), the Supreme Court

upheld a broad child pornography statute but cautioned that, “[a]s with

obscenity laws, criminal responsibility may not be imposed without some

element of scienter on the part of the defendant.” In United States v. XCitement Video, Inc., 513 U.S. 64, 78, 115 S. Ct. 464, 472 (1994), the

Court cited that caution as
The HONORABLE CHARLES R. WOLLE, Chief Judge of the United

1

States District Court for the Southern District of Iowa.

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“suggest[ing] that a [child pornography] statute completely bereft of a

scienter requirement as to the age of the performers would raise serious

constitutional doubts.” In this habeas case, we must explore those

constitutional doubts, for Iowa inmate Gary C. Gilmour argues that his

conviction for sexual exploitation of a seventeen-year-old minor violates

the First Amendment because the Iowa courts denied him a mistake-of-age

defense. Like the district court, we disagree and therefore affirm. 1

I.

The Supreme Court of Iowa described the criminal conduct at issue in

State v. Gilmour, 522 N.W.2d 595, 596 (Iowa 1994):

Gilmour is a professional photographer in Davenport

specializing in weddings and “boudoir” work. He was introduced

to a seventeen-year-old woman named Cassandra by her boyfriend.

Cassandra . . . and Gilmour met at a bar where they discussed

the possibility of her posing for nude photographs. . . .

Gilmour suggested that he could arrange for Cassandra to dance

at bachelor parties and perform sex for money at those parties.

According to Cassandra, Gilmour took nude photographs of her

and her boyfriend engaging in sex acts . . . . Gilmour

testified that he had asked Cassandra’s boyfriend how old she

was and was told that she was twenty-two. He further claimed

to have independently verified Cassandra’s age by viewing her

driver’s license.

Cassandra testified that she later told Gilmour that she

wanted to obtain the explicit photos taken of her and the

negatives. Gilmour suggested that she could have the

photographs if she would agree to seduce a pizza deliveryman.

Arrangements were made to have Cassandra order a pizza, meet

the deliveryman at the door in the nude, and entice him to have

sex. This plan was carried out. Gilmour, however, refused to

return the photographs unless Cassandra also had sex with him.

That also
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occurred, and Gilmour still retained at least some of the photographs.

The jury convicted Gilmour of pandering, a conviction not at issue

on this appeal, and also convicted him of violating Iowa Code § 728.12(1).

That statute defines sexual exploitation of a minor to include any person

who

employs, uses, persuades, induces, entices, coerces, knowingly

permits, or otherwise causes a minor to engage in a prohibited

sexual act or in the simulation of a prohibited sexual act if

the person knows, has reason to know, or intends that the act

or simulated act may be photographed, filmed, or otherwise

preserved in a negative, slide, book, magazine, or other print

or visual medium.

Prior to his trial, and again on direct appeal, Gilmour argued that this

statute must be read to include knowledge of the minor’s age as an element

of the offense in order to save it from First Amendment infirmity.

Otherwise, Gilmour reasoned, the statute would impermissibly chill

expressive activity protected by the First Amendment, namely, the

production of adult pornography. Rejecting that contention, the trial

court excluded all evidence that Gilmour mistakenly believed Cassandra to

be an adult. 

The Iowa Supreme Court affirmed, concluding (i) that knowledge of age

is not an element of the crime of sexual exploitation of a minor, (ii) that

mistake of age is not a defense, and (iii) that so construed, § 728.12(1)

does not violate the First Amendment because the statute is intended to

combat child pornography and is aimed at conduct rather than expression.

Gilmour, 522 N.W.2d at 597-98. The district court denied Gilmour's habeas

petition and he appeals.
Of course, were this a federal statute, legislative silence

2

on this mens rea issue would raise interpretive questions such as

those debated in Liparota v. United States, 471 U.S. 419 (1985).

But those questions are not of constitutional dimension, and we are

bound by the Iowa Supreme Court’s construction of the state

statute. See N.A.A.C.P. v. Button, 371 U.S. 415, 432 (1963). 

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II.

“Few areas of criminal law pose more difficulty than the proper

definition of the mens rea required for any particular crime.” United

States v. Bailey, 444 U.S. 394, 403 (1980). In general in this country,

infamous crimes are construed as requiring proof of mens rea -- the

“concurrence of an evil-meaning mind with an evil-doing hand” -- even when

the statutes defining those crimes are silent on the question. Morissette

v. United States, 342 U.S. 246, 251 (1952). In construing criminal

statutes that protect children from sexual predators, however, the child’s

age is a long-established exception to the general rule that proof of mens

rea is required; “the victim’s actual age [is] determinative despite

defendant’s reasonable belief that the girl had reached the age of

consent.” Id. at 251 n.8. Thus, absent First Amendment considerations,

it seems clear that Iowa may constitutionally define criminal sexual

exploitation of a child so as to preclude inquiry into whether defendant

believed the child was an adult.2

Turning to those First Amendment considerations, we find longstanding Supreme Court concern with the mens rea required in obscenity

cases, where conduct is criminal if it involves obscene materials but is

constitutionally protected if it does not. In an early obscenity case, the

Court struck down a state statute that made booksellers strictly liable for

possessing obscene writings. “[I]f the bookseller is criminally liable

without knowledge of the contents [of an obscene book],” the Court

explained, “he will tend
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to restrict the books he sells to those he has inspected; and thus the

State will have imposed a restriction upon the distribution of

constitutionally protected as well as obscene literature.” Smith v.

California, 361 U.S. 147, 153 (1959). As defined in later cases, this

constitutional mens rea requirement is satisfied if the defendant knows the

contents of the obscene materials and their “character and nature”; he need

not know they are legally obscene. Hamling v. United States, 418 U.S. 87,

123-24 (1974).

In Ferber, the Court comprehensively addressed the subject of child

pornography. A Manhattan shopkeeper sold two films depicting young boys

masturbating to an undercover police officer. He was convicted of

promoting a sexual performance by a child, defined to include “any

performance . . . which includes sexual conduct by a child less than

sixteen years of age.” Ferber, 458 U.S. at 751. The Court granted

certiorari to consider the constitutionality of that statute. Noting that

the exploitation of children in the production of pornography is both

harmful and pervasive, the Court declared that “[t]he prevention of sexual

exploitation and abuse of children constitutes a government objective of

surpassing importance.” Id. at 757. The Court held that child pornography

is unprotected by the First Amendment and generally defined child

pornography as extending beyond obscene materials to include “works that

visually depict [suitably limited and described] sexual conduct by children

below a specified age.” Id. at 764. The Court held that the New York

statute was not substantially overbroad and may be applied to those who

knowingly distribute child pornography.

By defining child pornography to include sexually explicit films and

photographs that are not obscene, Ferber set the stage for the issue in

this case. Gilmour concedes that in photographing Cassandra he produced

unprotected child pornography. He does not
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challenge the purposes behind banning the production of child pornography

-- to reduce financial incentives that encourage sexual exploitation of

children and to deter production of visual depictions that exacerbate

psychological harm to the child victims. See Ferber, 458 U.S. at 757-59.

But the photographing of nude adults engaged in sexually explicit conduct

retains First Amendment protection unless in fact obscene. Indeed, however

offensive to most, the sale and distribution of such materials is a large,

thriving industry. Therefore, Gilmour argues, absent a mistake-of-age

defense, the Iowa statute will chill producers of protected adult

pornography from photographing young adults. To prevail on this theory,

Gilmour must show that the statute’s overbreadth is “substantial.” Ferber,

458 U.S. at 769; see Broadrick v. Oklahoma, 413 U.S. 601 (1973). Analysis

of this question requires, as additional background, review of two relevant

post-Ferber decisions.

On appeal, Gilmour relies almost entirely on United States v. United

States Dist. Court, 858 F.2d 534 (9th Cir. 1988). In that case, the

government sought a writ of mandamus prohibiting the district court from

admitting evidence that a sixteen-year-old girl hired to appear in a

pornographic movie had perpetrated a massive fraud on the “adult

entertainment industry” by passing herself off as an adult. At issue was

a federal statute, 18 U.S.C. § 2251(a), which prohibits the production of

materials depicting a minor engaged in sexually explicit activity if the

defendant knows that the visual depiction will be transported in commerce.

A divided Ninth Circuit panel held that, although § 2251(a) does not

provide for a mistake-of-age defense, the First Amendment requires writing

one into the statute. Otherwise, producers of adult pornography 

will almost certainly be deterred from producing such materials

depicting youthful-looking adult actors; such
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actors may have considerable difficulty in finding producers

willing to cast them; [and] audiences wishing to view films

featuring such actors would be denied the opportunity.

858 F.2d at 540. The dissenting judge concluded that the statute serves

an important government interest, little legitimate speech is chilled if

producers of adult pornography must accurately ascertain a young-looking

actor’s age, and § 2251(a) is therefore constitutional as written. 

Following District Court, the Supreme Court decided X-Citement Video.

At issue was another federal child pornography statute, 18 U.S.C.

§ 2252(a), which prohibits, for example, knowingly shipping child

pornography in commerce. The question, as the Court explained it, was

whether to give the statute its “most natural grammatical reading,” in

which case the word “knowingly” modifies only the requirement that the

offending child pornography be shipped in interstate commerce. Noting that

this construction “would produce results that were not merely odd, but

positively absurd,” the Court concluded that “knowingly” instead modifies

all elements of the crime, including the age of the minor depicted in the

pornographic film. 513 U.S. at 69, 115 S. Ct. at 467. In discussing this

issue, the Court expressly noted that § 2251(a), the statute at issue in

District Court, lacks this scienter requirement, citing to the footnote in

which the Ninth Circuit panel majority held that the government need not

prove scienter as part of its case. 513 U.S. at 76 n.5, 115 S. Ct. at 471

n.5. In ignoring the more significant holding in District Court -- that

mistake-of-age is a constitutionally mandated defense -- it seems apparent

to us that the Supreme Court intentionally avoided that issue. Thus,

whether the First Amendment mandates use of the mistake-of-age defense in

a child pornography prosecution under
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federal or state law remains an open question outside the Ninth Circuit.

III.

As X-Citement Video illustrates, the mens rea question is especially

complex because it may affect each element of the crime. For example, the

Iowa statute at issue here has two explicit mens rea elements. To be

guilty of a violation, one must actively entice, coerce, or knowingly

permit a minor to engage in the prohibited sexual act, and one must know,

have reason to know, or intend that the illicit activity may be

photographed. Gilmour is arguing for an additional mens rea factor to

prevent the Iowa statute from chilling substantial protected speech --

reasonable belief that the sexually exploited victim was in fact an adult

is a defense to the charge. This question requires weighing the State’s

interest in prohibiting unprotected conduct, such as Gilmour’s; the

precision with which the State has isolated unprotected from protected

activity; and the resulting extent to which protected First Amendment

activity will be deterred (chilled) by the prohibition. For three reasons,

we part company with the panel majority in District Court and conclude that

the Iowa statute, as applied to Gilmour, is not constitutionally infirm.

First, not only is the State’s interest in banning the sexual

exploitation of children very strong, but the mistake-of-age defense is

directly contrary to that interest. As in this case, the defense will

typically be proved by evidence that the minor was a willing, perhaps

deceitful participant in producing pornographic films and photos. The

State may legitimately protect children from self-destructive decisions

reflecting the youthful poor judgment that makes them, in the eyes of the

law, “beneath the age of
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consent.” One can argue that sexually sophisticated seventeen-year-olds

like Cassandra do not need or even do not deserve such protection, but that

is a legislative question. See United States v. Freeman, 808 F.2d 1290,

1292 (8th Cir.), cert. denied, 480 U.S. 922 (1987). We deal here only with

the constitutional limits on the State’s power to protect. The State’s

interest in discouraging minors from posing as adults by eliminating the

mistake-of-age defense is entitled to great weight. 

Second, the Iowa statute as construed is aimed at producers of child

pornography, rather than those who distribute the resulting pornographic

materials. See Gilmour, 522 N.W.2d at 598. When dealing with child

pornography, strict criminal liability has a markedly different chilling

effect on producers as opposed to distributors of that pornography. Unlike

most distributors, the sexually exploitive producer deals directly with the

child victim, like the statutory rapist who has traditionally been denied

a mistake-of-age defense. In this information age, a prudent photographer

or movie producer may readily and independently confirm the age of

virtually every young-looking model. See Outmezguine v. State, 641 A.2d

870, 878 (Md. 1994). 

Prior Supreme Court decisions and comments on these First Amendment

mens rea issues have always focused on the chilling effects of broadly

exposing pornography or obscenity distributors to criminal liability. For

example, Smith involved the prosecution of a bookseller for carrying

obscene literature in his store. Ferber’s general reference to “some

element of scienter” was in the context of a statute that criminalized the

production and distribution of child pornography. X-Citement Video was a

prosecution of movie producers, but the federal statute at issue extended

to distributors as well; thus, the Court was required to
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construe the statute’s mens rea element in this broader context, and in

doing so it expressly noted that 

in the criminalization of pornography production . . . the

perpetrator confronts the underage victim personally and may

reasonably be required to ascertain that victim's age. The

opportunity for reasonable mistake as to age increases

significantly once the victim is reduced to a visual depiction,

unavailable for questioning by the distributor or receiver.

513 U.S. at 72 n.2, 115 S. Ct. at 469 n.2 (a point the Court reiterated in

note 5). Given this background, we believe that, if faced with the issue

in this case, the Court would conclude that denying the mistake-of-age

defense to child pornography producers does not substantially chill

protected expression. 

Third, the chilling effect on which Gilmour relies -- the reluctance

to use young-looking models in sexually explicit adult pornography -- is

also qualitatively weak. The First Amendment protection accorded to adult

pornography “is not as extensive as that accorded to other speech.” XCitement Video, 513 U.S. at 84, 115 S. Ct. at 474 (dissenting opinion of

Justice Scalia, citing the plurality opinion in Young v. American Mini

Theatres, Inc., 427 U.S. 50, 61 (1976), and other cases). Although worthy

of protection, its status on the relative periphery of the First Amendment

is relevant in weighing whether a state statute that legitimately protects

children against sexually exploitive conduct must be struck down as

substantially overbroad. The overbreadth doctrine, “a limited one at the

outset, attenuates as the otherwise unprotected behavior that it forbids

the State to sanction moves from ‘pure speech’ toward conduct [that] falls

within the scope of otherwise valid criminal laws that reflect legitimate

state interests in maintaining comprehensive controls over harmful,

constitutionally unprotected conduct.” Broadrick, 413 U.S. at 615. 
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In this case, we must weigh the statute’s chilling effect against its

“plainly legitimate sweep.” See Osborne v. Ohio, 495 U.S. 103, 112 (1990);

Broadrick, 413 U.S. at 615. Although issues of this kind are rarely free

from doubt, we conclude that Iowa Code § 728.12(1) was constitutionally

applied to Gilmour even though he was not afforded a mistake-of-age

defense. Accordingly, the judgment of the district court is affirmed.

MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.

In my view, the court has failed to afford certain erotic materials

the First Amendment protection that they deserve. I refer, of course, not

to sexually explicit photographs of men and women who are under age, but

to sexually explicit photographs of men and women who are not. Though the

court appropriately adverts to the Supreme Court’s caution that a statute

like the one under consideration here “would raise serious constitutional

doubts,” it nevertheless resolves those doubts in favor of the State of

Iowa. In doing so, the court relies mainly on three propositions, none of

which, I believe, can properly serve to dispose of the case in the manner

that the court suggests. 

The court makes the point that a mistake-of-age defense is contrary

to the state’s interest in protecting minors from the consequences of their

own ill-conceived decisions. In support of this rationale, the court makes

the asseveration that “the defense will typically [my emphasis] be proved

by evidence that the minor was a willing, perhaps deceitful participant.”

First of all, a minor’s willingness would be completely irrelevant to a

mistake-of-age defense. I am unclear, moreover, where the court could find

the data to support the assumption that the minors involved in these kinds

of cases are typically deceitful. A properly crafted
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mistake-of-age defense, in any case, would doubtless impose some

affirmative duties of inquiry on defendants seeking to rely on it, and it

seems likely that it would almost always be appropriate to instruct a jury

that a defendant cannot rely on his or her deliberate ignorance when

claiming the benefit of such a defense. How such a mistake-of-age defense

would measurably encourage deceitfulness is a mystery, and, in any event,

the state’s interest in protecting minors from themselves becomes less

weighty as their deceitfulness becomes less typical. 

The distinction that the court draws between producers of erotic

materials and its distributors is without legal significance. The fact

that a producer is in some measure “like” a statutory rapist (because they

both deal directly with the young woman or girl in question) makes for an

imperfect analogy, because there is no constitutional right to engage in

consensual sexual intercourse with anyone (except, presumably, one’s

spouse), but there is a right to take erotic pictures: Statutes forbidding

fornication are not unconstitutional, but statutes prohibiting the

production of nonobscene, sexually explicit material are. Not providing

a mistake-of-age defense to a person who engages in sexual acts with a

minor, therefore, does not produce substantial negative neighborhood

effects on a constitutional right, enumerated or otherwise; and the First

Amendment provides probably the most explicit, expansive, and pervasive

protections against an intrusive government that our Bill of Rights

contains. If it is true, moreover, as the court opines, that in “this

information age, a prudent photographer ... may readily ... confirm the age

of virtually every young-looking model,” then a defendant claiming that he

or she reasonably mistook a model’s age will hardly ever prevail, and the

dire consequences that the court predicts would follow if such a defense

were allowed evaporate completely in the face of its own argument.
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Most importantly, the court makes the extraordinary assertion that

the right that the defendant says will be chilled by the Iowa statute is

“qualitatively weak.” The court purports to find this legal principle in

the dissenting opinion of Mr. Justice Scalia in United States v. X-Citement

Video, Inc., 513 U.S. 64 (1994). A dissenting opinion is an odd place at

best to look for an applicable legal proposition. In any case, the court

posits an interpretation of Young v. American Mini Theatres, Inc., 427 U.S.

50, 61 (1976) that the case will not in fact bear. Young does not say that

the First Amendment is less solicitous of nonobscene, sexually explicit

materials than it is of other kinds of protected speech. What it says is

that, in the circumstances of that case, there was nothing to justify “the

exceptional approach to constitutional adjudication recognized in cases

like Dombrowski v. Pfister, 380 U.S. 479 [1965].” The Court in this

passage was speaking to the point of whether the extraordinary remedy of

an injunction against further enforcement of a state statute was

appropriate because it was substantially overbroad, not whether the type

of speech that was chilled was somehow less worthy of First Amendment

protection. 

This last proposition, far from being endorsed by the Court in Young,

as our court maintains, was in fact specifically rejected by it. Language

to that effect does indeed appear in Young, 427 U.S. at 70-71, but in a

part of the Court’s opinion in which Mr. Justice Powell explicitly refused

to join and which therefore did not command a majority of the Court. See

id. at 73 n.1, where Mr. Justice Powell opines that he does “not think we

need reach, nor am I inclined to agree with, the holding in Part III (and

supporting discussion) that nonobscene, erotic materials may be treated

differently under First Amendment principles from other forms of protected

expression.” He goes on to say, id., that he does “not consider the

conclusions in Part I of the opinion to
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depend on distinctions between protected speech.” Our court simply

misreads Young and provides no other authority for its conclusion that the

right at stake here is “qualitatively weak.”

Because I would take seriously the Supreme Court’s admonition in XCitement Video, 513 U.S. at 78, that a statute that is “completely bereft

of a scienter requirement as to the age of the performers would raise

serious constitutional doubts,” and because it is apparent that the Iowa

statute will substantially discourage speech that is protected by the First

Amendment, I would hold it void. I believe that the statute’s burden on

free speech rights is substantial because employing minors for sexual

purposes is these days the subject of a great deal of public anxiety, an

anxiety that stigmatizes those who are merely accused of it in a very

severe way. A conviction for a crime like the one charged here, moreover,

will almost certainly cause significant hardship by depriving those

convicted of their liberty for a considerable period of time and by

creating lasting difficulties for them because of laws that require them

to register with local authorities following release. These kinds of

burdensome disabilities will surely cause many producers of protected

erotic matter to forfeit their First Amendment rights, and this is

precisely the kind of forfeiture that courts ought to be assiduous to give

citizens the means to avoid. 

I would hold that the statute is unconstitutional because it does not

allow, at a minimum, a defendant to prove that he or she reasonably

believed that the person he or she engaged to participate in the depiction

of nonobscene sexual activity was not a minor. It seems to me that there

is a real question whether the Constitution is satisfied if the defendant

must prove such a defense by clear and convincing evidence, as suggested

in United States v. U. S. Dist. Court for Cent. Dist. of Cal., 858 F.2d

534, 543 (9th Cir. 1988). But since the court is not inclined to hold
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that mistake of age has any constitutional relevance at all in this case,

I do not feel it necessary to discuss this point, along with some others

that a fully adequate consideration of the case would in fact require.

I respectfully dissent for the reasons adumbrated.

A true copy.

Attest:

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