### *The HONORABLE GEORGE F. GUNN, JR., United States Distric t

Judge for the Eastern District of Missouri, sitting by desig nation.



# 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 L OKEN 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 Cour t uph eld a broad child pornography statute but cautioned that, “[a]s wit h obscen itylaws, criminal responsibility may not be imposed without som e 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), th e Court cited that caution as

### The HONORABLE CHARLES R. WOLLE, Chief Judge of the Unite d 1 

### States District Court for the Southern District of Iowa.
-2- “sugge st[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 thos e constitutional doubts, for Iowa inmate Gary C. Gilmour argues that hi s conviction for sexual exploitation of a seventeen-year-old minor violates the First Amendment because the Iowa courts denied him a mistake-of-ag e 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):

Gil mour is a professional photographer in Davenpor t specializing in weddings and “boudoir” work. He wa s introduced to a seventeen-year-old woman named Cassandra by he r boyfriend. Cassandra

. . . and Gilmour met at a bar where they discussed the possibility of her posing for nude photographs. . .

. Gilmour suggested that h e could arrange for Cassandra to dance at bachelor parties and perform sex for money at th ose parties. Accord ing to Cassandra, Gilmour took nude photographs of he r and her b oyfriend engaging in sex acts . . . . Gilmou r 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 te stified that she later told Gilmour that she wanted to obtain the explicit photos taken of her and th e neg atives. Gilmour suggested that she could have th e photographs if she would agree to seduce a pizza deliveryman. Arr angements were made to have Cassandra order a pizza, mee t the deliveryman at the door in the nude, and entice him to have sex. This plan was carr ied out. Gilmour, however, refused to return the photographs u nless Cassandra also had sex with him. That also

### -3-

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

The jury convicted Gilmour of pandering, a conviction not at issu e on this appeal, and also convicted him of violat ing 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 ca uses 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 s imulated act may be photographed, filmed, or otherwis e 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 chil l exp ressive activity protected by the First Amendment, namely, th e produc tion of adult pornography. Rejecting that contention, the tria l court excluded all ev idence 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) tha t 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 t o combat child pornography and is aimed at conduct rather than expression. Gilmour , 522 N.W.2d at 597-98. The district cou rt denied Gilmour's habeas petition and he appeals.

### Of course, were this a federal statute, legislative silenc e 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, andwe are bound by the Iowa Supreme Court’s construction of the stat e statute. See N.A.A.C.P. v. Button , 371 U.S. 415, 432 (1963).
-4- II.

“Few area s of criminal law pose more difficulty than the prope r defin ition of the mens rea required for any particular crime.” Unite d States v. Bailey , 444 U.S. 394, 403 (1980). In general in this country, infamous crimes are construed as requiring proof of mens rea -- th e “concurrence of an evil-meaning mind with an evi l-doing hand” -- even when the statutes defining those crimes are silent onthe question. Morissette

v. United States , 342 U.S. 246, 251 (1952). In construing crimina l statutes that protect children from sexual preda tors, however, the child’s age is a long-established exception to the gener al rule that proof of mens
rea is required; “the victim’s actual age [is] determinative despit e defendan t’s reasonable belief that the girl had reached the age o f consent.” Id. at 251 n.8. Thus, absent First Amendment considerations, it see ms clear that Iowa may constitutionally define criminal sexua l exploitation of a child so as to preclude inquiry into whether defendant believed the child was an adult. 2

Turnin g to those First Amendment considerations, we find long

standing Supreme Court concern with the mens rea required in obscenit y cases, where conduct is criminal if it involves obscene materials but is constitutionally protected if it does not. In an early obscenity case, th e Court struck down a state statute that made booksellers strictly liable fo r posses sing obscene writings. “[I]f the bookseller is criminally liabl e without knowledge of the contents [of an obscene book],” the Cour t explained, “he will tend

### -5-

to restr ict the books he sells to those he has inspected; and thus th e State will have imposed a restriction upon the distribution o f consti tutionallyprotected as well as obscene literature.” Smith v

. California , 361 U.S. 147, 153 (1959). As defined in later cases, thi s constitutional mens rea requirement is satisfied if the defendant knows th e contents of the obscene materials and their “character and nature”; he nee d not know they are legally obscene. Hamling v. U nited 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 masturba ting to an undercover police officer. He was convicted o f promotin g a sexual performance by a child, defined to include “an y perfor mance . . . which includes sexual conduct by a child less tha n sixteen yea rs of age.” Ferber , 458 U.S. at 751. The Court grante d certiorari to consider the constitutionality of that statute. Noting that the exp loitation of children in the production of pornography is bot h 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 unp rotected by the First Amendment and generally defined chil d pornographyas extending beyond obscene materials to include “works that visually depict [suitably limited and described] sexual conduct by childre n below a specified age.” Id. at 764. The Court held that the New Yor k statute was not substantially overbroad and may be applied to those wh o knowingly distribute child pornography.
By defining child pornography to inc lude sexually explicit films and photograp hs that are not obscene, Ferber set the stage for the issue i n this case. Gilmour concedes that in photographing Cassandra he produced unprotected child pornography. He does not

### -6-

challenge the purpose s behind banning the production of child pornography

-- to reduce financial incentives that encourage sexual exploitation o f childr en and to deter production of visual depictions that exacerbat e psychological harm to the child victims. See Ferber , 458 U.S. at 757-59. But the photographingof nude adults engaged in sexually explicit conduct retains First Amendment protection unless in fact obscene. Indeed, howeve r offensive to most, the sale and distribution of such materials is a large, thri ving industry. Therefore, Gilmour argues, absent a mistake-of-ag e defens e, the Iowa statute will chill producers of protected adul t pornographyfrom 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 relevan t post- Ferber decisions.
On appeal, Gilmour relies almost ent irely on United States v. United States Dis t. Court , 858 F.2d 534 (9th Cir. 1988). In that case, th e government sought a writ of mandamus prohibiting the district court from admi tting evidence that a sixteen-year-old girl hired to appear in a pornog raphic movie had perpetrated a massive fraud on the “adul t entertainment industr y” 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 b e transported in commerce. A di vided Ninth Circuit panel held that, although § 2251(a) does no t 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 su ch materials depicting youthful-looking adult actors; such

### -7- ac tors may have considerable difficulty in finding producer s wil ling to cast them; [and] audiences wishing to view film s 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 iss ue was another federal child pornography statute, 18 U.S.C

. § 2 252(a), which prohibits, for example, knowingly shipping chil d porno graphyin commerce. The question, as the Court explained it, wa s whether to give the statute its “most natural grammatical reading,” i n which case the word “knowingly” modifies only the requirement that th e offending child pornography be shipped in interstate commerce. Noting tha t this construction “would produce results that were not merely odd, bu t positively absurd,” t he Court concluded that “knowingly” instead modifies all elements of the c rime, including the age of the minor depicted in the pornographic film. 513 U.S. at 69, 115 S. Ct. a t 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 de fense -- it seems apparent to us that the Supreme Court intentionally avoided that issue. Thus , whether the First Ame ndment mandates use of the mistake-of-age defense in a child pornography prosecution under

### -8-

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 th e crime. For example, the Iowa stat ute at issue here has two explicit mens rea elements. To b e guilty of a violation, one must actively entice, coerce, or knowingl y permit a minor to eng age in the prohibited sexual act, and one must know, have re ason to know, or intend that the illicit activity may b e photo graphed. Gilmour is arguing for an additional mens rea factor t o preven t the Iowa statute from chilling substantial protected speech -

- reasonable belief tha t the sexually exploited victim was in fact an adult is a defense to the charge. This question requires weighing the State’s inter est in prohibiting unprotected conduct, such as Gilmour’s; th e precis ion with which the State has isolated unprotected from protecte d activi ty; and the resulting extent to which protected First Amendmen t activity will be deterred (chilled) by the prohibition. For three reasons , we part company with the panel majority in District Court and conclude tha t the Iowa statute, as applied to Gilmour, is not constitutionally infirm.

Fir st, not only is the State’s interest in banning the sexua l exploi tation of children very strong, but the mistake-of-age defense i s directlycontrary to that interest. As in this case, the defense wil l typically be proved by evidence that the minor was a willing, perhap s deceit ful participant in producing pornographic films and photos. Th e State may legitimately protect children from self-destructive decision s reflecting the youthf ul poor judgment that makes them, in the eyes of the law, “beneath the age of

### -9-

consent.” One can argue that sexually sophisticated seventeen-year-olds like Cassandra do not need or even do not deserve such protection, but tha t 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 wit h 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 construe d is aimed at producers of child pornography, rather than those who distribute the resulting pornographic materi als. See Gilmour , 522 N.W.2d at 598. When dealing with chil d pornography, strict criminal liability has a markedly different chilling effect on producers as opposed to distributors of that pornography. Unlik e most distributors, the sexually exploitive producer deals directly with th e child victim, like th e statutory rapist who has traditionally been denied a mistake-of-age defense. In this information a ge, a prudent photographer
or movie producer may readily and independently confirm the age o f virtuallyevery young-looking model. See Outmezguine v. State , 641 A.2d 870, 878 (Md. 1994).
Prior Sup reme Court decisions and comments on these First Amendment

mens rea issues have always focused on the chilling effects of broadl y exposing pornography or obscenity distributors t o criminal liability. For exampl e, Smithinvolved the prosecution of a bookseller for carryin g obscene literature in his store. Ferber ’s general reference to “som e element of scienter” was in the context of a sta tute that criminalized the production and distri bution 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 i n doing so it expressly noted that

in the criminalization of pornography production . . . th e pe rpetrator confronts the underage victim personally and ma y rea sonablybe required to ascertain that victim's age. Th e opp ortunityfor reasonable mistake as to age increase s significantly once the victim is reduced to a visua l depiction, unavailable for questioning by the distributor or receiver. 513 U.S. at 72 n.2, 115 S. Ct. at 469 n.2 (a poi nt 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-ag e defen se to child pornography producers does not substantially chil l 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 pr otection accorded to adult pornograp hy“is not as extensive as that accorded to other speech.” X

Citement Video , 513 U.S. at 84, 115 S. Ct. at 474 (dissenting opinion of Justice Scalia, citing the plurality opinion in Young v. American Min i Theatres, Inc. , 427 U.S. 50, 61 (1976), and othe r cases). Although worthy of protection, its status on the relative periph ery of the First Amendment is relevant in weighing whether a state statute that legitimately protects childr en against sexually exploitive conduct must be struck down a s substantially

overbro ad. 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’ t oward conduct [that] falls within the scope of o therwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful , constitutionally unprotected conduct.” Broadrick , 413 U.S. at 615.

### -11- In this case, we must weigh the statute’s chilling effect again st its “plainly legitimate sweep.” See Osborne v. Ohio , 495 U.S. 103, 112 (1990) ; Broadrick , 413 U.S. a t 615. Although issues of this kind are rarely free fro mdoubt, we conclude that Iowa Code § 728.12(1) was constitutionall y applied to Gilmour even though he was not afforded a mistake-of-ag e defense. Accordingly, the judgment of the district court is affirmed.
MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.
In my vie w, 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 wome n who are not. Though the court appropriately a dverts to the Supreme Court’s caution that a statute like the one under co nsideration 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 t hree propositions, none of which, I believe, canproperly 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 thei r
own ill-conceived decisions. In support of this rationale, the court make s 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 fin d the data to support the assumption that the mino rs involved in these kinds of cases are typically deceitful. A properly crafted

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mistak e-of-age defense, in any case, would doubtless impose som e affirmative duties of inquiry on defendants seeking to rely on it, and it seems likely that it would almost always be appr opriate to instruct a jury that a defendant cannot rely on his or her deliberate ignorance whe n claiming the benefit of such a defense. How suc h a mistake-of-age defense would measurably enco urage deceitfulness is a mystery, and, in any event, the st ate’s interest in protecting minors from themselves becomes les s weighty as their deceitfulness becomes less typical.

The distinction that the court draws between producers of eroti c mat erials and its distributors is without legal significance. The fac t that a producer is in some measure “like” a stat utory rapist (because they both deal directly wi th the young woman or girl in question) makes for an imperfect analogy, because there is no constitutional right to engage in
co nsensual sexual intercourse with anyone (except, presumably, one’ s spouse), but there is a right to take erotic pictures: Statutes forbiddin g fornication are not unconstitutional, but statutes prohibiting th e production of nonobscene, sexually explicit material are. Not providing
a mistake-of-age defense to a person who engages in sexual acts with a mi nor, therefore, does not produce substantial negative neighborhoo d effects on a constitu tional right, enumerated or otherwise; and the First Amendment provides probably the most explicit, expansive, and pervasiv e protec tions against an intrusive government that our Bill of Right s contains

. If it is true, moreover, as the court opines, that in “thi s information age, a prudent photographer ... may readily ... confirm the ag e of virtually every young-looking model,” then a defendant claiming that he or she reasonably mis took 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.

### -13- Mo st importantly, the court makes the extraordinary assertion tha t 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-Citemen t Video, Inc. , 513 U.S. 64 (1994). A dissenting opinion is an odd place at best to look for an a pplicable 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. Youngdoes not say tha t the Fi rst Amendment is less solicitous of nonobscene, sexually explici t materials than it is of other kinds of protected speech. What it says is that, in the circumstances of that case, there w as nothing to justify “the excep tional approach to constitutional adjudication recognized in case s like D ombrowski v. Pfister , 380 U.S. 479 [1965].” The Court in thi s passage was speaking to the point of whether the extraordinary remedy of
an inj unction against further enforcement of a state statute wa s appropriate because it was substantially overbroad, not whether the type of speech that was chilled was somehow less worthy of First Amendmen t 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 th at 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 the refore 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 treate d differently under First Amendment principles fro m other forms of protected expression .” He goes on to say, id. , that he does “not consider th e conclusions in Part I of the opinion to

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depend on distinctions between protected speech.” Our court simpl y misreads Youngand provides no other authority f or 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 rais e serious constitutional doubts,” and because it is apparent that the Iowa statute will substantially discourage speech that is protected by the Firs t Amendment, I would hold it void. I believe that the statute’s burden on free s peech rights is substantial because employing minors for sexua l purposes is these days the subject of a great deal of public anxiety, an
anx ietythat stigmatizes those who are merely accused of it in a ver y severe way. A conviction for a crime like the o ne charged here, moreover, will almost certainly cause significant hardship by depriving thos e convicted of their liberty for a considerable period of time and b y creating lasting difficulties for them because of laws that require them to regi ster with local authorities following release. These kinds o f burdens ome disabilities will surely cause many producers of protecte d erotic m atter to forfeit their First Amendment rights, and this i s precisely the kind of forfeiture that courts oug ht to be assiduous to give citizens the means to avoid.

I would hold that the statute is unconstitutional because it do es not allow, at a minimum, a defendant to prove that he or she reasonabl y believed that the person he or she engaged to pa rticipate in the depiction of nonobscene sexual activity was not a minor. It seems to me that there is a real question wh ether the Constitution is satisfied if the defendant must prove such a defense by clear and convincing evidence, as suggested in Un ited States v. U. S. Dist. Court for Cent. Dist. of Cal. , 858 F.2 d 534, 543 (9th Cir. 1988). But since the court is not inclined to hold

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that mistake of age h as 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.