                   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. X-
Citement Video, Inc., 513 U.S. 64, 78, 115 S. Ct. 464, 472 (1994), the
Court cited that caution as




     *The HONORABLE GEORGE F. GUNN, JR., United States District
Judge for the Eastern District of Missouri, sitting by designation.
“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,1 we disagree and therefore affirm.


                                    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




     1
      The HONORABLE CHARLES R. WOLLE, Chief Judge of the United
States District Court for the Southern District of Iowa.

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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.




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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 long-
standing 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




     2
      Of course, were this a federal statute, legislative silence
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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                                     4
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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                                            5
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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                                           6
       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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                                           7
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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                                            8
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.”             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 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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                                         10
        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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                                      11
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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                                       13
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 X-
Citement 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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                                     14
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.




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