In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2051
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TIMOTHY B. FREDRICKSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 17-CR-40032 — Michael M. Mihm, Judge.
____________________
ARGUED FEBRUARY 18, 2021 — DECIDED MAY 12, 2021
____________________
Before BRENNAN, SCUDDER, and KIRSCH, Circuit Judges.
BRENNAN, Circuit Judge. The First Amendment does not
protect child pornography. In challenging his conviction for
inducing sexually explicit videos from a minor, Timothy
Fredrickson asks us to reconsider this well-established
principle. He contends that because he could have lawfully
watched the minor where she recorded the videos (Illinois)
and where he received them (Iowa), the First Amendment
shields him from prosecution under 18 U.S.C. § 2251(a). But
2 No. 20-2051
child pornography’s exclusion from the First Amendment’s
protection does not hinge on state law, so we affirm
Fredrickson’s conviction.
I
In December 2016, S.B.,1 a sixteen-year-old girl from
Illinois, began chatting on the internet with Fredrickson, a
twenty-seven-year-old man from Iowa. Over the next two
months, S.B. and Fredrickson communicated through social
media, including Whisper, Snapchat, and Facebook.
Eventually their conversations turned sexually explicit, with
S.B., at Fredrickson’s request, sending him images and videos
of her. When Fredrickson sent flowers to S.B.’s high school in
February 2017, her mother became suspicious and discovered
the relationship, later contacting police. A search of
Fredrickson’s cell phone revealed he had been recording the
videos and saving the images S.B. had sent him via Snapchat.
Fredrickson possessed at least fifteen sexually explicit videos
of S.B. on his phone.
A federal grand jury indicted Fredrickson for sexual ex-
ploitation of a minor in violation of 18 U.S.C. § 2251(a), which
provides in relevant part:
Any person who employs, uses, persuades, induces,
entices, or coerces any minor to engage in … any sex-
ually explicit conduct for the purpose of producing any
visual depiction of such conduct … shall be punished
… if that visual depiction was produced or transmitted
using materials that have been mailed, shipped, or
1 We continue the district court’s practice of identifying the minor by
her initials.
No. 20-2051 3
transported in or affecting interstate or foreign com-
merce by any means … .
18 U.S.C. § 2251(a); see also 18 U.S.C. § 2256(1) (defining a “mi-
nor” as “any person under the age of eighteen years”).
Fredrickson moved to dismiss the indictment, citing Illinois
and Iowa state laws. To him, the First Amendment’s lack of
protection for child pornography depended on the material
depicting child sex abuse. S.B.’s videos, in contrast, showed
conduct that he could have lawfully viewed in person within
either state. So, Fredrickson argued, § 2251(a) criminalized
protected expressive speech. After a brief hearing, the district
court orally denied his motion and ruled there was no First
Amendment defense to the prosecution. A jury found
Fredrickson guilty, and the district court sentenced him to 200
months’ imprisonment.
II
On appeal Fredrickson renews his argument from the dis-
trict court: § 2251(a) is unconstitutionally overbroad. Under
First Amendment overbreadth doctrine, “a statute is facially
invalid if it prohibits a substantial amount of protected
speech.” United States v. Williams, 553 U.S. 285, 292 (2008).
And “[t]he overbreadth claimant bears the burden of demon-
strating, from the text of the law and from actual fact, that
substantial overbreadth exists.” Virginia v. Hicks, 539 U.S. 113,
122 (2003) (internal quotation marks and alteration, omitted);
see United States v. Bonin, 932 F.3d 523, 537 (7th Cir. 2019)
(same), cert. denied, 140 S. Ct. 960 (2020). We review de novo
this constitutional challenge to a statute. United States v. Bur-
rows, 905 F.3d 1061, 1063 (7th Cir. 2018).
4 No. 20-2051
Supreme Court precedent presents a problem for
Fredrickson’s argument, however. The First Amendment pro-
vides that “Congress shall make no law … abridging the free-
dom of speech.” Yet in New York v. Ferber, the Court held that
child pornography was categorically unprotected under the
First Amendment. 458 U.S. 747, 763 (1982) (“Recognizing and
classifying child pornography as a category of material out-
side the protection of the First Amendment is not, [sic] incom-
patible with our earlier decisions.”); see also Chaplinsky v. New
Hampshire, 315 U.S. 568, 571–72 (1942) (“There are certain
well-defined and narrowly limited classes of speech, the pre-
vention and punishment of which ha[ve] never been thought
to raise any Constitutional problem.” (footnote omitted)).
Since Ferber, the Court has upheld the constitutionality of stat-
utes criminalizing child pornography’s possession under
Ohio law, Osborne v. Ohio, 495 U.S. 103, 108–22 (1990), and its
solicitation under federal law, Williams, 553 U.S. at 288, 297–
304. Only virtual child pornography has retained First
Amendment protection because it “is not ‘intrinsically re-
lated’ to the sexual abuse of children, as were the materials in
Ferber.” Ashcroft v. Free Speech Coal., 535 U.S. 234, 250 (2002)
(quoting Ferber, 458 U.S. at 759). This precedent is prologue to
any constitutional challenge, as here, to the criminalization of
child pornography.
Despite all this, Fredrickson insists that his conviction un-
der § 2251(a) contravenes the First Amendment. He reads the
post-Ferber caselaw—specifically, United States v. Stevens, 559
U.S. 460, 471 (2010), and Free Speech Coal., 535 U.S. 234 at 250—
as conditioning the lack of constitutional protection for child
pornography on the criminality of the substantive conduct
depicted. True, Stevens noted that “Ferber presented a special
case” under the First Amendment as “[t]he market for child
No. 20-2051 5
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).
And as discussed, virtual child pornography receives First
Amendment protection, according to Free Speech Coalition: “In
contrast to the speech in Ferber,” virtual child pornography
“records no crime and creates no victims by its production.”
Free Speech Coal., 535 U.S. at 250. For Fredrickson, S.B.’s videos
did not depict child abuse, so Stevens and Free Speech Coalition
protect him from prosecution under § 2251(a).
But this position misunderstands both cases and their
relation to Ferber. Stevens concerned a First Amendment
challenge to a statute, 18 U.S.C. § 48, that “criminalize[d] the
commercial creation, sale, or possession of certain depictions
of animal cruelty.” 559 U.S. at 464. So when “the Court
mentioned child pornography” in Stevens, “it did so only in
passing and then only to reject an analogy between it and
depictions of animal cruelty and to decline the government’s
invitation to recognize the latter as a new category of
unprotected speech.” United States v. Price, 775 F.3d 828, 838
(7th Cir. 2014). In other words, “Stevens did not suddenly
confer First Amendment protection on some child
pornography—i.e., pornographic images that stop short of
depicting illegal child abuse.” Id. at 839. Because Stevens
involved animal cruelty videos and not child pornography,
Fredrickson’s gloss on Ferber “was not likely to be hidden”
within that decision. Id. We rejected Fredrickson’s argument
in Price, and we do the same here.
Fredrickson’s reliance on Free Speech Coalition is similarly
flawed. There, the Court confronted the constitutionality of
6 No. 20-2051
the Child Pornography Prevention Act, 18 U.S.C. § 2251 et seq.,
which “extend[ed] the federal prohibition against child por-
nography to sexually explicit images that appear to depict mi-
nors but were produced without using any real children.” Free
Speech Coal., 525 U.S. at 239. In describing the relevant prece-
dent, the Court stated that “under Ferber, pornography show-
ing minors can be proscribed whether or not the images are
obscene[.]” Id. at 240 (emphasis added). Taken on its own
terms, Ferber did not limit its definition of child pornography
to depictions of minors only under the age of sixteen. Instead
it cited several state statutes setting the age of a minor at un-
der seventeen or eighteen. 458 U.S. at 764 n.17. Free Speech Co-
alition’s description of Ferber was—and remains—accurate.
See Free Speech Coal., 535 U.S. at 240, 249–51.
To be sure, Free Speech Coalition treated virtual child por-
nography differently. 535 U.S. at 250. But it did so based on
the lack of a sufficient causal connection between the virtual
images and the actual harm to minors. Id. So Free Speech Coa-
lition may have distinguished Ferber but did not undermine it.
Unlike the virtual child pornography in Free Speech Coalition,
the harm to S.B. from Fredrickson’s inducement of sexually
explicit videos “necessarily follow[ed] from the speech.” 535
U.S. 234 at 250. As recognized in Ferber, these depictions “are
a permanent record” of S.B.’s victimization, 458 U.S. at 759, a
reality she reiterated during her victim impact statement at
sentencing. Her consent, then, makes no difference.
“Congress may legitimately conclude that even a willing or
deceitful minor is entitled to governmental protection from
‘self-destructive decisions’ that would expose him or her to
the harms of child pornography.” United States v. Fletcher, 634
F.3d 395, 403 (7th Cir. 2011). Neither Stevens nor Free Speech
Coalition created an exception to the rule of Ferber that child
No. 20-2051 7
pornography is not protected under the First Amendment.
We decline to do so as well.
Section 2251(a) is constitutionally valid. From the moment
Fredrickson persuaded S.B. to record and send him sexually
explicit videos, he committed a federal crime—one “fully
proscribable” under the Constitution. Price, 775 F.3d at 839.
Under the First Amendment, § 2251(a) suffers from no
overbreadth problem because child pornography enjoys no
constitutional protection.
AFFIRMED