THE FREE SPEECH COALITION v. RENO

 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

198 F.3d 1083 (1999), cert. granted, Ashcroft v. Free Speech Coalition, 121 S.Ct. 876 (2001)

MOLLOY, District Judge:

The question presented in this case is whether Congress may constitutionally proscribe as child pornography computer images that do not involve the use of real children in their production or dissemination. We hold that the First Amendment prohibits Congress from enacting a statute that makes criminal the generation of images of fictitious children engaged in imaginary but explicit sexual conduct.

In this case, the district court found that the Child Pornography Prevention Act of 1996 ("CPPA" or the "Act") was content-neutral, was not unconstitutionally vague or overbroad, and did not constitute an improper prior restraint of speech. The district court also found that the Child Pornography Prevention Act's affirmative defense did not impermissibly shift the burden of proof to a defendant by virtue of an unconstitutional presumption.

While we agree that the plaintiffs have standing to bring this case and that the Act is not an improper prior restraint of speech, the balance of the district court's analysis does not comport with what we believe is required by the Constitution. We find that the phrases "appears to be" a minor, and "conveys the impression" that the depiction portrays a minor, are vague and overbroad and thus do not meet the requirements of the First Amendment. Consequently we hold that while these two provisions of the Act do not pass constitutional muster, the balance of the Child Pornography Prevention Act is constitutional when the two phrases are stricken. Whether the statutory affirmative defense is constitutional is a question that we leave for resolution in a different case.

The appellants consist of a group that refers to itself as "The Free Speech Coalition." The Free Speech Coalition is a trade association of businesses involved in the production and distribution of "adult-oriented materials."  ...

The Free Speech Coalition sought declaratory and injunctive relief by a pre-enforcement challenge to certain provisions of the Child Pornography Prevention Act of 1996. The complaint was filed in the Northern District of California. Both parties moved for summary judgment. The district court determined the CPPA was constitutional and granted the government's motion for summary judgment. ... At the same time it denied Free Speech's cross motion for summary judgment. ... After the district court's adverse ruling, Free Speech appealed.

In this appeal, Free Speech argues the district court was mistaken in its determination that the legislation is content neutral. They also argue that the district court was wrong to hold that the Act is not unconstitutionally vague. The argument is that where the statute fails to define "appears to be" and "conveys the impression," it is so vague a person of ordinary intelligence cannot understand what is prohibited. Free Speech also questions the district court's holding that the affirmative defense provided in the Act is constitutional. Finally, Free Speech appeals the lower court's determination that the Act does not impose a prior restraint on protected speech and that it does not create a permanent chill on protected expression.

Child pornography is a social concern that has evaded repeated attempts to stamp it out.  State legislatures and Congress have vigorously tried to investigate and enact laws to provide a basis to prosecute those persons involved in the creation, distribution, and possession of sexually explicit materials made by or through the exploitation of children. Our concern is with the most recent federal law enacted as part of the effort to rid society of the exploitation of children for sexual gratification, the Child Pornography Prevention Act of 1996.

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In 1990 the Supreme Court decided  Osborne v. Ohio .... Osborne upheld an Ohio law that prohibited possessing and viewing child pornography. ... Soon thereafter, the Child Protection Restoration and Penalties Enhancement Act of 1990 was passed. ... This law criminalized the possession of three or more pieces of child pornography. ... Again in 1994, the federal law concerning child pornography was amended to punish the production or importation of sexually explicit depictions of a minor.  ... But, as with all the predecessor protective laws, this statute protected real children from exploitation. ... 

Throughout the legislative history, Congress has defined the problem of child pornography in terms of real children. Up until 1996 the actual participation and abuse of children in the production or dissemination or pornography involving minors was the sine qua non of the regulating scheme. The legislation tracked the decisions of the Supreme Court as well as the swift development of technology and its nearly infinite possibilities. The statutory odyssey was from adult pornography secured or not by the First Amendment, to child  pornography permitted or not, to pseudo child pornography protected or not, until in 1996 the law was amended to prohibit virtual child pornography. The 1996 law, the law at issue here, changed course. The regulation direction shifted from defining child pornography in terms of the harm inflicted upon real children to a determination that child pornography was evil in and of itself, whether it involved real children or not.  This shift forms the basis of the constitutional challenge Free Speech makes here. 

The Child Pornography Prevention Act of 1996 expanded the law to combat the use of computer technology to produce pornography containing images that look like children. The new law sought to stifle the use of technology for evil purposes. This of course was a marked change in the criminal regulatory scheme. 

Congress had always acted to prevent harm to real children. In the new law, Congress shifted the paradigm from the illegality of child pornography that involved the use of real children in its creation to forbid a "visual depiction" that "is, or appears to be, of a minor engaging in sexually explicit conduct." ...

The premise behind the Child Pornography Prevention Act is the asserted impact of such images on the children who may view them. The law is also based on the notion that child pornography, real as well as virtual, increases the activities of child molesters and pedophiles. 

18 U.S.C. sec. 2256(8)  defines child pornography as "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct[.]"   At issue in this appeal are the definitions contained in subsections (B) and (D) of sec. 2256(8).  Section 2256(8)(B) bans sexually explicit depictions that appear to be minors.  Section 2256(8)(D) bans visual depictions that are "advertised, promoted, presented, described or distributed in such a manner that conveys the impression" that they contain sexually explicit depictions of minors.

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The district court held that the contested provisions of the Child Pornography Prevention Act are content-neutral regulations. ... The district judge reasoned that the law was passed to prevent the secondary effects of the child pornography industry, specifically the exploitation and degradation of children. ... The court also found that the Act addressed the need to control child pornography because virtual pornography led to the encouragement of pedophilia and the molestation of children. ... This reasoning was based on a finding that the CPPA is intended "to counteract the effect that [real or virtual child pornography] has on its viewers, on children, and to society as a whole." ...

The lower court expressly found the legislation was not intended to regulate or outlaw the ideas themselves. ...

We do not agree.  In United States v. Hilton, ... the First Circuit found that the Act at issue was content-based because it expressly aims to curb a particular category of expression, child pornography, by singling out the type of expression based on its content and then banning it. The Hilton court's determination that blanket suppression of an entire type of speech is a content-discriminating act is a legal conclusion with which we agree. The child pornography law is at its essence founded upon content-based classification of speech.

The CPPA prohibits any sexually explicit depiction that "appears to be" of a minor or that is distributed or advertised in such a manner as to "convey the impression" that the depiction portrays a minor.  Thus, the CPPA distinguishes favored from disfavored speech on the basis of the content of that speech. ...

Part of the rationale for the Act is the congressional determination that "a major part of the threat to children posed by child pornography is its effects on the viewers of such material[.]"  ... The Congress surmised that "the effect is the same whether the child pornography consists of photographic depictions of actual children or visual depictions produced wholly or in part by computer." ... One Senator referred to the notion that "computer imaging technology has given child pornographers a new way to create 'synthetic' child pornography which is virtually indistinguishable from 'traditional' child pornography." ... This belief was then carried to its logical content-based conclusion that "'synthetic' child pornography which looks real to the naked eye will have the same effect upon viewers as 'traditional' child pornography." ...

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Under the circumstances,  if the CPPA is to survive the constitutional inquiry the government must establish a compelling interest that is served by the statute, and it must show that the CPPA is narrowly tailored to fulfill that interest. ...

The district court found that even if no children are involved in the production of such materials the devastating secondary effect that sexually explicit materials involving the images of children have on society, and on the well being of children, merits the regulation of such images. ... This legislative finding supported the lower court's finding of a compelling state interest. ... We believe this legal determination is wrong.

There are three compelling interests put forward when instituting efforts to curb child pornography using images of actual children. The first interest is that child pornography requires the participation of actual children in sexually explicit situations to create the images. The second interest stems from the belief that dissemination of such pornographic images may encourage more sexual abuse of children because it whets the appetite of pedophiles.  The third interest is that such images are morally and aesthetically repugnant.

The Supreme Court has required state statutes criminalizing child pornography to limit the offense to "works that visually depict explicit sexual conduct by children below a specified age." ... The Ferber Court specifically focused on the harm to children. ... It also found that distribution of pornographic images is "intrinsically related" to the harm suffered by child victims because the images produced are a permanent record of the child's participation, exacerbated by its dissemination.  ... The Court reasoned that the distribution network for such images needs to be terminated if it is to be effectively controlled.  ... The Ferber Court acknowledged that "if it were necessary for literary or  artistic value, a person over the statutory age who perhaps looked younger could be utilized."  ...

The language of the statute questioned here can criminalize the use of fictional images that involve no human being, whether that fictional person is over the statutory age and looks younger, or indeed, a fictional person under the prohibited age.  Images that are, or can be, entirely the product of the mind are criminalized.  The CPPA's definition of child pornography extends to drawings or images that "appear" to be minors or visual depictions that "convey" the impression that a minor is engaging in sexually explicit conduct, whether an actual minor is involved or not.  The constitutionality of this definition is not supported by existing case law.

The rationale articulated in Ferber and the constitutional permissibility of regulating the category of child pornography as a separate class is not justified by consideration of the effects such images have on others, even if those effects exist. Instead the focus of analysis is on the harm to the children actually used in the production of the materials.6  Nothing in Ferber can be said to justify the regulation of such materials other than the protection of the actual children used in the production of child pornography.

The language of the statute criminalizes even those materials that do not involve a recognizable minor. This shift is a significant departure from Ferber.

While the government is given greater leeway in regulating child pornography, materials or depictions of sexual conduct "which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection."  Ferber ....

Ferber considered the possibility of simulations of sexually explicit acts involving non-recognizable minors and implicitly found them to be constitutionally protected. ... The Court also implicitly rejected the regulation of pornography that does not involve minors. ...

Thus, the case law demonstrates that Congress has no compelling interest in regulating sexually explicit materials that do not contain visual images of actual children. Furthermore, to the extent Congress' justification for the CPPA relies upon such pornography's effect on third parties -- children victimized by pedophiles who consume sexually explicit depictions that appear to involve minors -- the Seventh Circuit has articulated a compelling reason for preventing such third party injury from superseding First Amendment rights.

In American Booksellers Ass'n, Inc. v. Hudnut, ... the Seventh Circuit invalidated a city ordinance prohibiting pornography that portrayed women submissively or in a degrading manner. In Hudnut, an argument about the consequences of pornography was put forth to justify the Indianapolis ordinance. ... The defendants maintained that pornography influences attitudes, and that the ordinance was a way to alter the socialization of men and women rather than to vindicate community standards of offensiveness. ... It was argued that the ordinance would play an important role "in reducing the tendency of men to view women as sexual objects, a tendency that leads to both unacceptable attitudes and discrimination in the workplace and violence away from it."  ... The Court accepted the premise that "depictions of subordination tend to perpetuate subordination" which in turn leads to "affront and lower pay at work, insult and injury at home, and battery and rape on the streets." ... Even so, the Hudnut court reasoned that pornography's role, if any, in preserving systems of sexual oppression "simply demonstrated the power of pornography as speech . . . . Pornography affects how people see the world, their fellows, and social relations." ...

As the Seventh Circuit noted, however, the unhappy effects of pornography depend on mental intermediation. ... This is particularly so when the images are not of real human beings, but are representations of a loathsome mind reduced to virtual reality by the technology of graphic computer art. Further, 

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By the same token, any victimization of children that may arise from pedophiles' sexual responses to pornography apparently depicting children engaging in explicit sexual activity is not a sufficiently compelling justification for CPPA's speech restrictions.  This is so because to hold otherwise enables the criminalization of foul figments of creative technology that do not involve any human victim in their creation or in their presentation.  ...

The critical ingredient of our analysis is the relationship between the dissemination of fabricated images of child pornography and additional acts of sexual abuse.  Factual studies that establish the link between computer-generated child pornography and the subsequent sexual abuse of children apparently do not yet exist. ... The legislative justification for the proposition was based upon the  Final Report of the Attorney General's Commission on Pornography, a report that predates the existing technology. ... The Final Report emphasized the victimization of real children by adult distribution of the pornographic material.  The report shows that the use of sexually explicit photos or films of actual children to lure other children played a small part in the overall problem involving harm to children. ... Thus, while such images are unquestionably morally repugnant, they do not involve real children nor is there a demonstrated basis to link computer-generated images with harm to real children. Absent this nexus, the law does not withstand constitutional scrutiny.7 

By criminalizing all visual depictions that "appear to be" or "convey the impression" of child pornography, even where no child is ever used or harmed in its production, Congress has outlawed the type of depictions explicitly protected by the Supreme Court's interpretation of the First Amendment.  Because the 1996 Act attempts to criminalize disavowed impulses of the mind, manifested in illicit creative acts, we determine that censorship through the enactment of criminal laws intended to control an evil idea cannot satisfy the constitutional requirements of the First Amendment.

Our determination is not to suggest that anyone condones the implicit or explicit harmful secondary effects of child pornography. Rather it is a determination to measure the statute by First Amendment standards articulated by the Supreme Court. To accept the secondary effects argument as the gauge against which the statute must be measured requires a remarkable shift in the First Amendment paradigm. Such a transformation, how speech impacts the listener or viewer, would turn First Amendment jurisprudence on its head. 

In short, we find the articulated compelling state interest cannot justify the criminal proscription when no actual children are involved in the illicit images either by production or depiction.  Because we find that Congress has not provided a compelling interest, we do not address the "narrow tailoring" requirement.

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The district court found that because the CPPA does not require advance approval for production or distribution of adult pornography that does not use minors and does not effect a complete ban on constitutionally protected material, it does not constitute an improper prior restraint on speech. ... We agree. 

Prior restraint describes "administrative and judicial orders forbidding certain communications" before the communication occurs. ... The CPPA only penalizes speech after it occurs. As such it is not a prior restraint of speech. ... The possibility of self-censorship and the contention that the CPPA has a chilling effect do not amount to a prior restraint. ...

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The judgment of the district court is AFFIRMED on the questions of standing and prior restraint. The judgment of the district court is REVERSED on the questions of the constitutionality of the statutory language "appears to be a minor" and "conveys the impression."

FERGUSON, Circuit Judge, Dissenting:

The majority holds that Congress cannot regulate virtual child pornography because it does not require the use of actual children in its production. ...  Without the use of actual children, the majority believes that Congress is simply attempting to regulate "evil ideas." ... I disagree. Congress has provided compelling evidence that virtual child pornography causes real harm to real children. As a result, virtual child pornography should join the ranks of real child pornography as a class of speech outside the protection of the First Amendment. ...

For more than two decades, Congress has been trying to eliminate the scourge of child pornography. ... Each time Congress passes a law, however, child pornographers find a way around the law's prohibitions. ... This cycle recently  repeated itself and prompted Congress to enact the CPPA.

Prior to the CPPA, federal law imposed penalties on individuals who produced, distributed, or possessed visual depictions of actual minors engaging in sexually explicit conduct. ... Recent advances in computer-imaging technology, however, have made this law ineffective for two reasons. First, purveyors of child pornography can now produce visual depictions that appear to be actual children engaged in sexual conduct "without using children" at all, "thereby placing such depictions outside the scope of federal law." ... Second, even where actual children are used, computers can "alter sexually explicit photographs, films, and videos in such a way as to make it virtually impossible for prosecutors to identify individuals, or to prove that the offending material was produced using [actual] children." ...

In an effort to close these loopholes, Congress enacted the CPPA which, inter alia, bans visual depictions that "appear[ ] to be of a minor engaging in sexually explicit conduct" or that are "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct." ...

Along with the CPPA, Congress included thirteen detailed legislative findings that explain why virtual child pornography needs to be prohibited. ...  Despite these detailed legislative findings, the majority rules that Congress failed to articulate a "compelling state interest" to justify criminalizing virtual child pornography. ... The majority argues that Congress cannot constitutionally regulate virtual child pornography because it does not depict "actual children." ... Once "actual children" are eliminated from the equation, the majority believes that Congress is impermissibly trying to regulate "evil ideas." ... I disagree for the following reasons.

First. The majority improperly suggests that preventing harm to depicted children is the only legitimate justification for banning child pornography. 

Although this was the Supreme Court's focus in  New York v. Ferber, ... the Court has subsequently indicated a willingness to consider additional factors. ... In Osborne, the Supreme Court addressed the issue of whether Ohio could ban the possession of  child pornography. ... In finding it could, the Court relied not only on the harm caused to the children who were used in its production (i.e., Ferber), but also on the harm that children suffer when child pornography is used to seduce or coerce them into sexual activity. ... Thus, in Osborne, the Court indicated that protecting children who are not actually pictured in the pornographic image is a legitimate and compelling state interest. ... Under the reasoning of Osborne, the majority had an obligation to consider justifications beyond just the harm caused to the children depicted in the image.

Second. The majority ignores the fact that many of the justifications Congress relied on when it passed the CPPA have already been endorsed by the Supreme Court. For example, the Court in Osborne recognized that states have a legitimate interest in preventing pedophiles from "using child pornography to seduce other children into sexual activity." ... Virtually parroting this justification, Congress enacted the CPPA after finding that "child pornography is often used as part of a method of seducing other children into sexual activity; a child who is reluctant to engage in sexual activity with an adult, or to pose for sexually explicit photographs, can sometimes be convinced by viewing depictions of other children 'having fun' participating in such activity."  ... In addition, Congress found that when child pornography is "used as a means of seducing or breaking down a child's inhibitions," the images are equally as effective regardless of whether they are real photographs or computer-generated pictures that are "virtually indistinguishable." ...

The Supreme Court has also recognized that states have a legitimate interest in destroying the child pornography market. ... In enacting the CPPA, Congress declared that the statute would encourage people to destroy all forms of child pornography, thereby reducing the market for the material. ... At the hearing before the Senate Judiciary Committee, witnesses testified that persons who trade and sell images that are indistinguishable from those of actual children  engaged in sexual activity "keep the market for child pornography thriving." ... This is because pictures that look like children engaged in sexual activities can be exchanged for pictures that are of actual children engaged in such activities. By limiting the production and distribution of images that appear to be of children having sex, the CPPA helps rid the market of all child pornography. 

Third. Even though Congress presented some new justifications that the Supreme Court has not specifically endorsed, the majority still had an  obligation to consider them as long as they advance the general goal of protecting children. In both Ferber and Osborne, the Court stated that "it is evident beyond the need for elaboration that a State's interest in 'safeguarding the physical and psychological well-being of a minor' is 'compelling.'"  ... "A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens." ... Thus, the Court will generally "sustain[ ] legislation aimed at protecting the physical and emotional well-being of children even when the laws . . . operate[ ] in sensitive areas." ...

The lesson from Ferber and Osborne is that legislators should be given "greater leeway" when acting to protect the well-being of children. ... The majority, however, ignores this principle and fails to consider any of the new justifications supporting the CPPA. For example, the majority fails to address Congress' concern that computer-imaging technology is making it increasingly difficult in criminal cases for the government "to meet its burden of proving that a pornographic image is of a real child." ... At a hearing before the Senate Judiciary Committee, Deputy Assistant Attorney General Kevin Di Gregory told the committee that in one federal child pornography case, the defendant relied on advances in computer technology to argue that the government had failed to meet its "burden of proving that each item of the alleged child pornography did, in fact, depict an actual minor rather than an adult made to look like one." ...

Although jurors in that case rejected this argument, Congress recognized that as computer imaging software progressed, similar arguments might undermine "the enforcement of existing laws against the sexual exploitation of children," ... by raising "a built-in reasonable doubt argument in every child exploitation/pornography prosecution." ... Congress believed that the CPPA was necessary to close this loophole, and therefore, the majority should have factored this concern into its evaluation of the case.

Fourth. The majority ignores the fact that child pornography, real or virtual, has little or no social value. .... It is well established that "the protection given to speech and press was fashioned to assure unfettered interchange of ideas for bringing about the political and social changes desired by people." ... "All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have . . . full protection . . ." ... The First Amendment, however, does not protect certain limited categories of speech that are "utterly without redeeming social importance." ...

These categories include obscenity, ... libel, ... and "fighting words," ... . Child pornography is also one of these categories of speech. ...  Why should virtual child pornography be treated differently than real child pornography?  Is it more valued speech?  I do not think so.  Both real and virtual child pornography contain visual depictions of children engaging in sexually explicit activity. The only difference is that real child pornography uses actual children in its production, whereas virtual child pornography does not.

While this distinction is noteworthy, it does not somehow transform virtual child pornography into meaningful speech. Virtual child pornography, like its counterpart real child pornography, is of "slight social value" and constitutes "no essential part of the exposition of ideas." ... Therefore, the majority is wrong to accord virtual child pornography the full protection of the First Amendment.

Fifth. The majority improperly analyzes the CPPA under a strict scrutiny approach. ... In so doing, the majority misreads the Supreme Court's previous child pornography decisions. These decisions indicate that the proper mode of analysis is to weigh the state's interest in regulating child pornography against the material's limited social value. ... The Supreme Court used this test in Ferber and found that "the balance of competing interests [was] clearly struck and that it [was] permissible to consider these materials as without the protection of the First Amendment." ...

Virtual child pornography should be evaluated in a similar fashion. The majority should have weighed Congress' reasons for banning virtual child pornography against the limited value of such material.  If the majority had, it would have realized that Congress' interests in destroying the child pornography market and in preventing the seduction of minors outweigh virtual child pornography's exceedingly modest social value. Since the balance of competing interests tips in favor of the government, virtual child pornography should join the ranks of real child pornography as a class of speech outside the protection of the First Amendment.

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In sum, the CPPA is not, as the majority claims, an attempt to regulate "evil ideas."  Instead, the CPPA is an important tool in the fight against child sexual abuse.  The CPPA's definition of child pornography provides adequate notice of the type of images that are prohibited and does not substantially encroach on protected expression.  Accordingly, I would find the CPPA constitutional.

n7 The dissent's argument about the secondary effects justification for permitting the statutory regulation here is not sound because it makes too much of dicta set forth in <=73> Osborne v. Ohio, 495 U.S. 103, 109 L. Ed. 2d 98, 110 S. Ct. 1691 (1989). In the first place Osborne involved real children.

Protecting harm to real children is the point that constitutionally limits the power of Congress to ban some forms of expression.

The premise of the secondary effects argument assumes that children will be enticed by pedophiles to illicit sexual behavior, and consequent injury, if they look at pictures of other kids engaged in sexually explicit conduct. Even if the pictures don't involve real kids, the "realism" of computer images that "appear to be" or "create the impression" of real children can be used by pedophiles to entice a vulnerable child into illegal sexual acts. Thus, according to the dissent, there is a justification to protect kids from the harmful secondary effects of images that don't involve real people. The vulnerability argument makes no constitutional sense in light of Ferber's acknowledgment that adults who look like minors can be used in place of minors in sexually explicit "art" or film depictions. In other words, if the dissent's argument is sound, it would work to bar expression of constitutionally protected speech under Ferber.

Nothing would keep the determined pedophile from using Ferber protected images to entice the vulnerable child into harmful sexual conduct. A similar fault lies in the dissent's reasoning regarding "drawings, cartoons, sculptures, and paintings depicting youthful persons in sexually explicit poses [that] plainly lie beyond the Act," citing <=74> Hilton, 167 F.3d at 72. Children are enamored by cartoons and drawings. They are regularly used as a means of teaching and entertaining. Much debate exists about the effects that cartoons and video or computer games have on violent behaviors or other antisocial behaviors involving children. It is unsound to reason that cartoons cannot suggest pornographic behavior or that cartoons could not be used to entice a vulnerable child into illicit sexual behavior. Cf. Fritz the Cat (1972) (X-rated cartoon movie, loosely based on Underground Comics' character by Robert Crumb, depicting cat's adventures in group sex, college radicalism, and other hazards of life in the 1960's).

Many innocent things can entice children into immoral or offensive behavior, but that reality does not create a constitutional power in the Congress to regulate otherwise innocent behavior. By the dissent's reasoning a pedophile could use cartoons depicting explicit sexual conduct involving minors to entice a child into engaging in sexually explicit behavior but this would "plainly lie beyond the Act." Cartoons or other images cannot be constitutionally distinguished from other fictional images based upon the quality of the realism. 

The dissent wrongly suggests that our holding accords "virtual child pornography the full protection of the First Amendment." Because the statute is severable, our holding demonstrates that if morphed computer images are of an identifiable child, the statute is enforceable because there is then the potential for harm to a real child. (Return to text accompanying footnote 7