                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-2554
                         ___________________________

                              United States of America,

                         lllllllllllllllllllllPlaintiff - Appellee,

                                            v.

                                    Matthew Rouse,

                       lllllllllllllllllllllDefendant - Appellant.
                                       ____________

                     Appeal from United States District Court
                       for the District of Nebraska - Omaha
                                  ____________

                              Submitted: May 14, 2019
                              Filed: September 3, 2019
                                   ____________

Before COLLOTON, BEAM, and SHEPHERD, Circuit Judges.
                          ____________

COLLOTON, Circuit Judge.

       Matthew Rouse entered a conditional guilty plea to one count of distribution
of child pornography. See 18 U.S.C. § 2252A(a)(2). He reserved his right to appeal
the district court’s1 denial of his motion to dismiss the indictment. On appeal, Rouse

      1
       The Honorable Laurie Smith Camp, then Chief Judge, United States District
Court for the District of Nebraska, adopting the report and recommendation of the
argues that the statute of conviction, as applied to him in this case, violates his rights
under the First and Fifth Amendments. We conclude that the conviction is
constitutional and affirm the judgment.

                                            I.

       Matthew Rouse was 37 years old when he engaged in a sexual relationship
with B.A., a 16-year-old girl. On multiple occasions, the two met in Omaha to have
sexual intercourse. During the relationship, Rouse suggested that they record their
sexual activity. B.A. agreed, and Rouse used his cell phone to film the pair engaged
in sexual acts. Rouse sent the videos to B.A. over the internet, but did not distribute
them to anyone else. B.A. also sent the videos, along with other explicit photographs
that she had taken of herself, back to Rouse.

      B.A.’s mother discovered the relationship and found the video recordings on
B.A.’s phone. She notified Rouse’s employer of the relationship and recordings; the
employer notified the State Patrol. Although the sexual activity did not violate
Nebraska state law because the age of consent is sixteen, see Neb. Rev. Stat. § 28-
319.01, the State charged Rouse with violating Nebraska criminal prohibitions on the
possession of child pornography. See id. §§ 28-813.01, 28-1463.02.

       A federal grand jury later charged Rouse with committing two federal offenses
arising from the videos: enticement of a minor to engage in sexually explicit conduct
for the purposes of creating a visual depiction, see 18 U.S.C. § 2251(a), and
distribution of child pornography. See id. § 2252A(a)(2). Rouse moved to dismiss
the indictment on the grounds that prosecuting him for filming his lawful activity
violated his First Amendment right to free speech and a Fifth Amendment right to


Honorable Michael D. Nelson, United States Magistrate Judge for the District of
Nebraska.

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privacy. The district court denied the motion, concluding that child pornography is
categorically excluded from First Amendment protections, and that no right to privacy
protects the production of pornographic material involving a minor.

      Rouse entered a conditional guilty plea to distribution of child pornography
while reserving his right to appeal the denial of his motion. The government agreed
to dismiss the enticement charge, and the district court sentenced Rouse to 96
months’ imprisonment. We review the district court’s ruling de novo.

                                         II.

      Rouse first contends that the child pornography statute, § 2252A(a)(2), is
unconstitutional as applied to him because it violates his First Amendment right to
free speech. The district court rejected this contention on the ground that child
pornography is categorically excluded from protection under the First Amendment.

       “There are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise any
Constitutional problem.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72
(1942). In New York v. Ferber, 458 U.S. 747 (1982), the Supreme Court held that
“child pornography” is “without the protection of the First Amendment.” Id. at 763-
64. The Court has reiterated that conclusion several times, most recently in United
States v. Stevens, 559 U.S. 460, 471 (2010). See also Ashcroft v. Free Speech Coal.,
535 U.S. 234, 245-46 (2002); Osborne v. Ohio, 495 U.S. 103, 110 (1990).

       Rouse nonetheless contends that Stevens compels the conclusion that the
videos that he created of B.A. engaging in sexual activity are protected speech.
Stevens rejected the use of a balancing test to decide whether depictions of animal
cruelty were categorically excluded from First Amendment protection. To reconcile
its decisions on child pornography, the Court emphasized that Ferber “did not rest

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on [a] ‘balance of competing interests’ alone,” but presented a “special case”: “The
market for child pornography was ‘intrinsically related’ to the underlying abuse, and
was therefore ‘an integral part of the production of such materials, an activity illegal
throughout the Nation.’” Stevens, 559 U.S. at 471 (quoting Ferber, 458 U.S. at 759,
761, 764). The Court explained that Ferber’s analysis was “grounded . . . in a
previously recognized, long-established category of unprotected speech,” namely,
“speech or writing used as an integral part of conduct in violation of a valid criminal
statute.” Id. (quoting Ferber, 458 U.S. at 762). Applying Stevens, we have defined
the category of unprotected activity as “speech integral to criminal conduct, namely
the sexual abuse of minors inherent in the production of child pornography.” United
States v. Anderson, 759 F.3d 891, 894 (8th Cir. 2014).

       Relying on this explanation of Ferber, Rouse contends that distribution of child
pornography is outside the scope of the First Amendment only if it is integral to a
violation of a separate statute that criminalizes sexual abuse of a minor. Rouse
acknowledges, for example, that if a defendant unlawfully engages in sexual activity
with a minor and records that activity on video, then his production and distribution
of the recordings is not protected speech. But because B.A. had reached the age of
consent in Nebraska, and consented to engage in sexual activity with Rouse, the
government alleges no crime or sexual abuse other than the production and
distribution of child pornography. Under those circumstances, Rouse reasons, his
recordings are protected speech, because there is no underlying criminal conduct that
makes the videos categorically unprotected.

      This argument misunderstands Ferber and the basis for the categorical
exclusion of child pornography from protection under the First Amendment. When
the Court spoke of speech used as an integral part of conduct in violation of a “valid
criminal statute,” it was referring to statutes forbidding the production of child
pornography. The distribution of child pornography was “an integral part of the
production of such materials, an activity illegal throughout the Nation.” 458 U.S. at

                                          -4-
761 (emphasis added). As the Court explained in Free Speech Coalition, “[i]n the
case of the material covered by Ferber, the creation of the speech is itself the crime
of child abuse.” 535 U.S. at 254. “[T]he use of children as subjects of pornographic
materials is harmful to the physiological, emotional, and mental health of the child.”
Ferber, 458 U.S. at 758. The “underlying abuse” to which the market for child
pornography was “intrinsically related,” therefore, was the unlawful production of the
images themselves. Stevens, 559 U.S. at 471 (quoting Ferber, 458 U.S. at 759). It
may not be illegal for an adult to place an unclothed child on a bed, but when the
adult produces and distributes images of the child that contain a lascivious exhibition
of the child’s genitals, the activity is illegal and outside the protection of the First
Amendment. See United States v. Lohse, 797 F.3d 515, 520-21 (8th Cir. 2015). So
too with the production and distribution of video recordings of a 16-year-old girl
engaged in sexual explicit conduct, even if the sexual activity is legal in the State of
Nebraska.

      Rouse recorded an identifiable minor engaging in sexually explicit activity and
then distributed the video over the internet. His speech in distributing the child
pornography was intrinsically related to the unlawful production of the material, and
thus categorically unprotected under the First Amendment. The district court
correctly denied Rouse’s motion to dismiss the charge.

       Rouse also contends that § 2252A(a)(2) as applied to him violates a right to
privacy or sexual intimacy under the Fifth Amendment. He relies on Lawrence v.
Texas, 539 U.S. 558 (2003), where the Court held that the “right to liberty under the
Due Process Clause” gave two men the right to engage in consensual sexual activity
in the home. Id. at 578. Rouse contends that the liberty discussed in Lawrence and
previous cases encompasses a right to engage in lawful sexual conduct with a minor
and record it on video for personal use.




                                          -5-
        The liberty interest recognized in Lawrence does not extend so far. Lawrence
concerned “adults engaging in consensual sexual relations in private.” United States
v. Bach, 400 F.3d 622, 629 (8th Cir. 2005). The decision did not involve minors, and
it did not recognize a constitutional right to produce or distribute video recordings of
persons engaged in sexually explicit conduct. We held in Bach that the Due Process
Clause as interpreted in Lawrence did not prevent a prosecution for transmitting a
visual depiction of a minor engaged in sexually explicit conduct, even though the
conduct was not criminal. Id. at 628-29. The same result obtains here. Rouse
suggests that the defendant in Bach pressured or coerced the minor to allow video
recording, while his interaction with B.A. was entirely consensual. But the salient
point is that the criminal charge in each case involved distribution of visual
depictions of sexual activity between an adult and a minor, and the liberty guaranteed
by the Due Process Clause does not forbid the government to proscribe that conduct.

                                   *       *       *

      The judgment of the district court is affirmed.

BEAM, Circuit Judge, concurring.

       I concur in the court’s opinion because I feel compelled to by circuit and
Supreme Court precedent and do not disagree with the majority court’s analysis of the
same. I write separately because the result–the conviction and especially the sentence
of 96 months–under the particular facts of this case is unseemly and quite possibly
unfair. As the court sets out, there was in reality no victim of this crime, and the two-
year gap between the age of majority for consensual sex and the age at which
depictions of that consensual and legal sex are illegal as child pornography should
likely be addressed by a legislative body. Further, the sentence, which I fully realize
was a negotiated Rule 11(c)(1)(C) agreement, resulted because the calculated
advisory Guidelines range was 135-168 months. This excessive, but correctly

                                          -6-
calculated, range is a result2 of what I believe to be artificially and unnecessarily high
child pornography sentencing guidelines. See United States v. Dorvee, 616 F.3d
174, 184-87 (2d Cir. 2010) (criticizing aspects of the child pornography guidelines
as irrational and creating little distinction between “the most dangerous offenders”
and others). In this unusual and likely aberrant case, a prison sentence of eight years
is, to say the least, unfortunate.
                         ______________________________




      2
          Rouse’s criminal history score was zero.

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