                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 13-2337
                          ___________________________

                              United States of America,

                         lllllllllllllllllllll Plaintiff - Appellee,

                                             v.

                                 Jeffrey A. Anderson,

                       lllllllllllllllllllll Defendant - Appellant.
                                        ____________

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

                           Submitted: November 22, 2013
                               Filed: July 17, 2014
                                  ____________

Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
                        ____________

COLLOTON, Circuit Judge.

      Jeffrey Anderson entered a conditional guilty plea to one count of distributing
child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2256(8).
Anderson appeals the district court’s1 denial of his motion to dismiss that count of the

      1
      The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska, adopting the Findings, Recommendation and Order of the Honorable
indictment, arguing that the federal child pornography laws are unconstitutionally
overbroad as applied to him. We affirm the district court’s denial of the motion to
dismiss.

                                           I.

       In June 2012, the Nebraska State Patrol received a report from the mother of an
eleven-year-old girl identified in the record as “M.A.” that the girl had received
unsolicited, sexually explicit messages and images on Facebook from an account
registered under the name Bob Shepherd. Subsequent investigation revealed that
“Bob Shepherd” was actually Anderson. Anderson is M.A.’s half-brother.

       With the permission of M.A.’s mother, an officer assumed control over M.A.’s
Facebook account and received an image from Anderson. The image originally had
depicted an adult male and adult female engaged in sexual intercourse, but Anderson
digitally superimposed M.A.’s face over the face of the female. Anderson transmitted
the image to M.A.’s account with a caption that said in substance: “This is what we
will do.” During an interview with law enforcement officers, Anderson admitted to
creating the image and sending it to M.A.’s Facebook account. Digitally altered
depictions of this sort are commonly referred to as “morphed images.”

       In August 2012, a grand jury charged Anderson in a four-count indictment with
distribution of child pornography, distribution of child pornography to a minor,
production of child pornography, and enticement of a minor to engage in unlawful
sexual activity. Federal law, in relevant part, defines child pornography to include any
“visual depiction [that] has been created, adapted, or modified to appear that an
identifiable minor is engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8)(C)




Cheryl R. Zwart, United States Magistrate Judge for the District of Nebraska.

                                          -2-
(emphasis added). 18 U.S.C. § 2252A(a)(2)(A) makes it a crime knowingly to
distribute child pornography as defined in § 2256(8)(C).

      Anderson moved to dismiss all four counts of the indictment. He did not
dispute that the definition of child pornography in § 2256(8)(C) encompassed his
morphed image as one that was “modified to appear that an identifiable minor is
engaging in sexually explicit conduct.” He sought dismissal on the ground that
§§ 2252A(a)(2)(A) and 2256(8)(C) are unconstitutionally overbroad under the First
Amendment as applied to the morphed image that he sent. The district court denied
Anderson’s motion, ruling that the morphed image was child pornography that was
not protected speech under the First Amendment.

       Anderson entered a conditional guilty plea to distribution of child pornography
as charged in Count I of the indictment, reserving the right to appeal the district
court’s denial of his motion to dismiss. The court sentenced him to 120 months’
imprisonment. The plea agreement and judgment provide that the remaining counts
of the indictment will be dismissed if the government prevails in this appeal.
Anderson now appeals the order denying his motion to dismiss Count I, and he
properly invokes our jurisdiction under 28 U.S.C. § 1291. See United States v.
Abrams, 137 F.3d 704, 707 (2d Cir. 1998) (per curiam). We review his First
Amendment challenge de novo. See United States v. Petrovic, 701 F.3d 849, 854 (8th
Cir. 2012).

                                         II.

                                         A.

       The First Amendment’s protection of freedom of expression does not extend
to “certain well-defined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any Constitutional problem.”

                                         -3-
Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942). In New York v. Ferber,
458 U.S. 747 (1982), the Supreme Court recognized child pornography as one such
“category of material . . . not entitled to First Amendment protection.” Id. at 765. The
government argues that the morphed image that Anderson created and sent to M.A.
falls within this category of unprotected speech.

       The government’s position is difficult to square with the Supreme Court’s
recent explanation why child pornography is categorically unprotected under the First
Amendment. In United States v. Stevens, 559 U.S. 460 (2010), the Court clarified that
child pornography was categorically unprotected in Ferber because it involved visual
depictions that were produced through sexual abuse of one or more children. See id.
at 471. Rejecting the government’s invitation to recognize depictions of animal
cruelty as a new category of unprotected speech, the Court explained that First
Amendment protection does not depend on “a simple cost-benefit analysis,” id., but
rather extends to all speech outside the “historic and traditional categories long
familiar to the bar.” Id. at 468 (internal quotation omitted).

       The Court noted that some decisions, such as Ferber with respect to child
pornography, had “described historically unprotected categories of speech as being
‘of such slight social value as a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order and morality.’” Stevens, 559
U.S. at 470 (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992)). But the
decision in Ferber, the Court explained, “did not rest on this ‘balance of competing
interests’ alone.” Id. at 471 (quoting Ferber, 458 U.S. at 764). Rather, Ferber’s
analysis was “grounded . . . in a previously recognized, long-established category of
unprotected speech”: speech integral to criminal conduct, namely the sexual abuse of
minors inherent in the production of child pornography. Id. at 471; see also Giboney
v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949) (rejecting First Amendment
protection for “speech or writing used as an integral part of conduct in violation of a
valid criminal statute”).

                                          -4-
        The government contends that this case is indistinguishable from United States
v. Bach, 400 F.3d 622 (8th Cir. 2005), where this court held that a morphed image of
a minor’s head superimposed onto another minor’s nude body “involve[d] the type of
harm which can constitutionally be prosecuted under . . . Ferber.” Id. at 632. The
underlying image in Bach, however, “depict[ed] a young nude boy . . . sitting in a tree
in a lascivious pose with a full erection.” Id. The morphed image was produced when
“a photograph of the head of a well known juvenile, AC, was skillfully inserted onto
the body of the nude boy so that the resulting depiction appear[ed] to be a picture of
AC engaging in sexually explicit conduct with a knowing grin.” Id.

       Distinguishing the image from the virtual child pornography held to be
protected speech in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), we
reasoned that the morphed image in Bach “implicate[d] the interests of a real child and
. . . record[ed] a crime” because of the sexually explicit manner in which the
originally photographed minor was posed. 400 F.3d at 632 (emphasis added). We
also explained that “[a]lthough there is no contention that the nude body actually is
that of AC or that he was involved in the production of the image, a lasting record has
been created of AC, an identifiable minor child, seemingly engaged in sexually
explicit activity.” Id. AC was “thus victimized every time the picture is displayed.”
Id. At the same time, however, Bach said that “there may well be instances in which
the application of § 2256(8)(C) violates the First Amendment,” id., thus suggesting
that the court did not view all speech covered by the statute as categorically
unprotected.

       The government argues that because the morphed image in this case creates a
lasting record of M.A., an identifiable minor, seemingly engaged in sexually explicit
activity, it is analogous to the image in Bach and not protected by the First
Amendment. There is an important distinction, however, between the morphed image
in Bach and the morphed image in this case. Whereas the image in Bach recorded the
sexual abuse of the nude minor who was posed in the original image, Anderson’s

                                         -5-
morphed image superimposed M.A.’s face onto an image of two adults. No minor
was sexually abused in the production of Anderson’s image. Under the Supreme
Court’s reasoning in Stevens, this difference is significant enough to distinguish
Anderson’s image from the unprotected speech in Bach—unless the Court were to
conclude that morphed images like Anderson’s come within a category of speech that
has been historically unprotected but not yet specifically identified in the case law.
See Stevens, 559 U.S. at 472. We therefore decline to affirm the district court’s order
based on the categorical rationale advanced by the government.

                                          B.

       The government argues alternatively, however, that the child pornography
statutes as applied to Anderson also satisfy strict scrutiny under the First Amendment.
Where a statute prohibits constitutionally protected speech based on its content, the
government must demonstrate that the prohibition is “justified by a compelling
interest and is narrowly drawn to serve that interest.” Brown v. Entm’t Merchs. Ass’n,
131 S. Ct. 2729, 2738 (2011). The government “must specifically identify an ‘actual
problem’ in need of solving, and the curtailment of free speech must be actually
necessary to the solution.” Id. (internal citation omitted) (quoting United States v.
Playboy Entm’t Grp., Inc., 529 U.S. 803, 822 (2000)). We conclude that the
government has satisfied that heavy burden in this case.

       The Supreme Court has long recognized as “compelling” the government’s
“interest in safeguarding the physical and psychological well-being of a minor.”
Ferber, 458 U.S. at 756 (internal quotation omitted). In Free Speech Coalition, the
Court continued to recognize this interest as compelling, and noted in dicta that
“morphed images . . . implicate the interests of real children and are in that sense
closer to the images in Ferber.” 535 U.S. at 242.




                                         -6-
       The morphed image at issue here implicates the government’s interest in
protecting minors, and a portion of our reasoning in Bach is on point. Even though
“there is no contention that the nude body actually is that of [M.A.], . . . a lasting
record has been created of [her] . . . seemingly engaged in sexually explicit activity.
[She] is thus victimized every time the picture is displayed.” Id. Although subjects
of morphed images like M.A. do not suffer the direct physical and psychological
effects of sexual abuse that accompany the production of traditional child
pornography, the morphed images’ “continued existence causes the child victims
continuing harm by haunting the children in years to come.” Osborne v. Ohio, 495
U.S. 103, 111 (1990). “[M]orphed images are like traditional child pornography in
that they are records of the harmful sexual exploitation of children. The children, who
are identifiable in the images, are violated by being falsely portrayed as engaging in
sexual activity.” Shoemaker v. Taylor, 730 F.3d 778, 786 (9th Cir. 2013).

       Anderson compares this psychological and reputational injury to the “indirect
harms” of virtual child pornography—its potential use in seducing minors and its
effect on the market for real child pornography—that the Supreme Court found
insufficiently compelling in Free Speech Coalition. See 535 U.S. at 250-55. But
unlike those harms, which “depend[ed] upon some unquantified potential for
subsequent criminal acts,” the damage from a morphed image is felt directly by the
identifiable minor and “necessarily follow[s] from the speech” itself. Id. at 250. The
government thus has a compelling interest in protecting innocent minors from the
significant harms associated with morphed images.

      Next, to satisfy strict scrutiny, the criminal prohibition must be narrowly drawn
to serve that compelling interest: “The First Amendment requires that the
Government’s chosen restriction on the speech at issue be ‘actually necessary’ to
achieve its interest.” United States v. Alvarez, 132 S. Ct. 2537, 2549 (2012) (plurality
opinion) (quoting Entm’t Merchs. Ass’n, 131 S. Ct. at 2738). The narrow tailoring
requirement dictates that “[i]f a less restrictive alternative would serve the

                                          -7-
Government’s purpose, the legislature must use that alternative” rather than prohibit
Anderson’s actions under the criminal law. Playboy Entm’t Grp., 529 U.S. at 813; see
also Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010).

       Anderson argues that the law as applied here is not narrowly tailored because
it encompasses an image that clearly depicts adult bodies and because it punishes
“private” distribution of a morphed image. But the harm a child suffers from
appearing as the purported subject of pornography in a digital image that is distributed
via the Internet can implicate a compelling government interest regardless of the
image’s verisimilitude or the initial size of its audience. Anderson’s distribution
targeted M.A. through her Facebook account, and the image suggested her
involvement in sexual intercourse as an eleven-year-old child. There was no less
restrictive means for the government effectively to protect this child from the
exploitation and psychological harm resulting from the distribution of the morphed
image than to prohibit Anderson from disseminating it. We therefore conclude that
18 U.S.C. §§ 2252A(a)(2)(A) and 2256(8)(C) are constitutional as applied to
Anderson’s conduct.

                                   *       *       *

      The order of the district court denying Anderson’s motion to dismiss the
indictment is affirmed.2
                       ______________________________



      2
        In supplemental briefs filed in this court, the parties agree that the judgment
includes two clerical errors. The judgment states that Anderson was convicted of
“receipt” of child pornography when it should say “distribution,” and the judgment
cites 18 U.S.C. § 2256(8)(A) as the pertinent definitional section when it should cite
18 U.S.C. § 2256(8)(C). The district court may correct these errors as appropriate “at
any time.” Fed. R. Crim. P. 36.

                                          -8-
