Dissenting:
The majority holds that Congress cannot regulate virtual child pornography1 because it does not require the use of actual children in its production. Majority Op. at 1095. Without the use of actual children, the majority believes that Con*1098gress is simply attempting to regulate “evil idea[s].” Id. 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. In addition, I do not believe that the statutory terms “appears to be” or “conveys the impression” are substantially overbroad or void for vagueness. Accordingly, I would find the Child Pornography Prevention Act of 1996 (“CPPA”) constitutional.
I.
For more than two decades, Congress has been trying to eliminate the scourge of child pornography. See Majority Op. at 1087 - 89. Each time Congress passes a law, child pornographers find a way around the law’s prohibitions. See S.Rep. No. 104-358, at 26 (statement of Sen. Grassley). 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. See 18 U.S.C.A. § 2252 (West Supp.1999). 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.” 141 Cong. Rec. S13542 (daily ed. Sept. 13,1995) (remarks of Sen. Hatch). 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.” Id.
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.” 18 U.S.C.A. §§ 2256(8)(B), (D) (West Supp.1999). Along with the CPPA, Congress included thirteen detailed legislative findings that explained why virtual child pornography must be prohibited. See 18 U.S.C.A. § 2251 (West Supp.1999).2 Historical and Statutory Notes, Congressional Findings (hereinafter “Congressional Findings ”).2
Despite these detailed legislative findings, the majority rules that Congress failed to articulate a “compelling state interest” to justify criminalizing virtual child pornography. Majority Op. at 1095. The majority argues that Congress cannot constitutionally regulate virtual child pornography because it does not depict “actual children.” Id. Once “actual children” are eliminated from the equation, the majority believes that Congress is impermissibly trying to regulate “evil idea[s].” Id. 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, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), the Court has subsequently indicated a willingness to consider additional factors. See Osborne v. Ohio, 495 U.S. 103, 110-11, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990). In Osborne, the Supreme Court addressed the issue of whether Ohio could ban the possession of *1099child pornography. Id. at 108, 110 S.Ct. 1691. In finding it could, the Court relied not only on the harm caused to the children who are 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. Id. at 111, 110 S.Ct. 1691. 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. See Id. See also United States v. Hilton, 167 F.3d 61, 70 (1st Cir.) (recognizing the Supreme Court’s “subtle, yet crucial, extension” of valid state interests to include protecting children not actually depicted), cert. denied — U.S. —, 120 S.Ct. 115, — L.Ed.2d — (1999).
Second. The majority ignores the fact that the Supreme Court has already endorsed many of the justifications Congress relied on when it passed the CPPA. As discussed above, the Court in Osborne recognized that states have a legitimate interest in preventing pedophiles from “us[ing] child pornography to seduce other children into sexual activity.” Osborne, 495 U.S. at 111, 110 S.Ct. 1691. Relying on 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.” Congressional Findings, at 3. More importantly, 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.” Congressional Findings, at 8.3
The Supreme Court has also recognized that states have a legitimate interest in destroying the child pornography market. Osborne, 495 U.S. at 110. Similarly, 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. Congressional Findings at 12. 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.” Senate Hearing, at 91 (testimony of Bruce Taylor).4 This is because pictures that look like children engaging in sexual activities can be exchanged for pictures that are of actual children engaging 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.5
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, especially if they advance the goal of protecting children. In both Ferber and Osborne, the Court stated that “[i]t 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.’ ” Osborne, 495 U.S. *1100at 109, 110 S.Ct. 1691, quoting Ferber, 458 U.S. at 756-57, 102 S.Ct. 3348. “A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens.” Ferber, 458 U.S. at 757, 102 S.Ct. 3348. 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.” Id.
The lesson from Ferber and Osborne is that legislators should be given “greater leeway” when acting to protect the well-being of children. See Id. at 756, 102 S.Ct. 3348. 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.” S.Rep. No. 104-358, at 20. 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.” Id. at 17, citing United States v. Kimbrough, 69 F.3d 723, 733 (5th Cir.1995), cert. denied, 517 U.S. 1157, 116 S.Ct. 1547, 134 L.Ed.2d 650 (1996). 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” by raising a “built-in reasonable doubt argument in every child exploitation/pornography prosecution.” S.Rep. No. 104-358, at 16-17. 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. See Ferber, 458 U.S. at 762, 102 S.Ct. 3348 (stating that the value of' child pornography is “exceedingly modest, if not de minimis”). It is well established that “[t]he 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.” Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). “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 ...” Id. The First Amendment, however, does not protect certain limited categories of speech that are “utterly without redeeming social importance.” Id. See also R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (stating that “[f]rom 1791 to present ... our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas”). These categories include obscenity, Roth, 354 U.S. at 483, 77 S.Ct. 1304, libel, Beauharnais v. Illinois, 343 U.S. 250, 266, 72 S.Ct. 725, 96 L.Ed. 919 (1952), and “fighting words,” Chaplinsky v. New Hampshire, 315 U.S. 568, 571-73, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Child pornography is also one of these categories of speech. Ferber, 458 U.S. at 763-64, 102 S.Ct. 3348.
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 mean*1101ingful 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.” See Chaplinsky, 315 U.S. at 572, 62 S.Ct. 766. 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. Majority Op. at 1091. 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. See Ferber, 458 U.S. at 756-64, 102 S.Ct. 3348; Osborne, 495 U.S. at 108-111, 110 S.Ct. 1691. 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.” Id. at 764, 102 S.Ct. 3348. See also Osborne, 495 U.S. at 111, 110 S.Ct. 1691 (finding that the “gravity of the State’s interests” outweighed Osborne’s limited First Amendment right to possess child pornography).
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.6 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.
II.
The analysis does not end with a finding that virtual child pornography is without First Amendment protection. Statutes can be found unconstitutional if they are worded so broadly that they “criminalize an intolerable range of constitutionally protected conduct.” Osborne, 495 U.S. at 112, 110 S.Ct. 1691. This case focuses on the CPPA’s new definition of child pornography which prohibits visual depictions that “appear[ ] to be,” or are promoted or distributed “in such a manner that conveys the impression,” that they are “of a minor engaging in sexually explicit conduct.” 18 U.S.C.A. §§ 2256(8)(B), (D) (West Supp. 1999). The majority holds that this language is overbroad because it bans “material that has been accorded First Amendment protection.” Majority Op. at 1095-96. I disagree.
As a general rule, statutes should not be invalidated as overbroad unless the over-breadth is “substantial ... in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). The Court has cautioned that the overbreadth doctrine is “strong medicine” that should be employed “sparingly and only as a last resort.” Id. at 613, 93 S.Ct. 2908. Accordingly, a statute should not be invalidated as overbroad “when a limiting construction has been or could be placed on the challenged statute.” Id.
Appellants suggest that the “appears to be” language is so broad that everyday artistic expressions like paintings, drawings, and sculptures that depict youthful looking subjects in a sexual manner will be criminalized 'under the CPPA. However, *1102even a glancing look at the legislative history belies this assertion. Congress enacted the CPPA to address the problem of “computer-generated” child pornography. S.Rep. No. 104-358, at 7. In the findings filed with the CPPA, Congress repeatedly stated that the law is targeted at visual depictions that are “virtually indistinguishable to the unsuspecting viewer from unre-touched photographic images of actual children engaging in sexually explicit conduct.” Congressional Findings, at 5, 8, 13. The Senate Judiciary Committee explained that the “appears to be” language was necessary to cover the “same type of photographic images already prohibited, but which do[ ] not require the use of an actual minor.” S.Rep. No. 104-358, at 21 (emphasis in original).
From reading the legislative history, it becomes clear that the CPPA merely extends the existing prohibitions on “real” child pornography to a narrow class of computer-generated pictures easily mistaken for real photographs of real children. See Congressional Findings, at 13. Therefore, I agree with the United States Court of Appeals for the First Circuit which found that “drawings, cartoons, sculptures, and paintings depicting youthful persons in sexually explicit poses plainly lie beyond the Act.” Hilton, 167 F.3d at 72. “By definition, they would not be ‘virtually indistinguishable’ from an image of an actual minor.” Id. “The CPPA therefore does not pose a threat to the vast majority of every day artistic expression, even to speech involving sexual themes.” Id.
There has also been concern that the CPPA prohibits constitutionally protected photographic images of adults in sexually explicit poses. This contention, however, is also without merit. The CPPA explicitly states that “[i]t shall be an affirmative defense” to a charge of distributing, reproducing or selling child pornography that the pornography (1) “was produced using an actual person or persons,” (2) each of whom “was an adult at the time the material was produced,” and (3) “the defendant did not advertise, promote, present, describe, or distribute the material in such a manner as to convey the impression that it is or contains visual depictions of a minor engaging in sexually explicit conduct.” 18 U.S.C.A. § 2252A(c) (West Supp.1999). The CPPA thus shields from prosecution sexually explicit visual depictions so long as they are produced using actual adults and “the material has not been pandered as child pornography.” S.Rep. No. 104-358, at 10, 21. Persons — like the appellants in this case — who produce and distribute works depicting the sexual conduct of actual adults, and do not market the depictions as if they contain sexual images of children, are thus explicitly protected from culpability under the CPPA.
While there may be other potentially impermissible applications of the CPPA, I doubt that they would be “substantial ... in relation to the statute’s plainly legitimate sweep.” Broadrick, 413 U.S. at 615, 93 S.Ct. 2908. Rather than invalidate part of the statute based on possible problems that may never occur, it is best to deal with those situations on a case-by-cases basis. See Ferber, 458 U.S. at 781, 102 S.Ct. 3348 (Stevens, J., concurring) (noting that “[hjypothetical rulings are inherently treacherous and prone to lead us into unforeseen errors”). Accordingly, I would find that the CPPA is not substantially overbroad. See Hilton, 167 F.3d at 71-74 (finding that the CPPA is not unconstitutionally overbroad); United States v. Acheson, 195 F.3d 645, 650-52 (11th Cir.1999) (same).
III.
I also disagree with the majority that the CPPA is unconstitutionally vague. It is well settled that a statute is not void for vagueness unless it fails to “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).
*1103Here, the key phrases of the CPPA are clearly defined. The CPPA applies to visual depictions of a minor engaging in sexually explicit conduct. A minor is defined as “any person under the age of eighteen years.” 18 U.S.C.A. § 2256(1) (West Supp.1999). In addition, “sexually explicit conduct” is defined as actual or simulated “sexual intercourse ...; bestiality; masturbation; sadistic or masochistic abuse; or lascivious exhibition of the genitals or pubic area.” 18 U.S.C.A. § 2256(2) (West Supp.1999). Given the detailed definition of sexually explicit activity, it is unlikely that a person of ordinary intelligence would be unable to determine what activities are prohibited.
The majority nevertheless finds fault with the CPPA because it believes that the terms “appears to be” and “conveys the impression” are highly subjective and could be enforced “in an arbitrary and discriminatory fashion.” Majority Op. at 1095. Once again, I disagree. With regard to the apparent age of the depicted individuals, the government can use the same type of objective evidence that it relied on before the CPPA went into effect. For example, in cases involving prepubescent individuals, the government can show the jury the pictures and the jury can determine for itself whether the virtual image “appears to be” of a minor. See e.g. United States v. Arvin, 900 F.2d 1385, 1390 n. 4 (9th Cir.1990) (citing a jury instruction that requires the members of the jury to decide whether the prepubescent girls are “minors” based upon their own “observation of the pictures”), cert. denied 498 U.S. 1024, 111 S.Ct. 672, 112 L.Ed.2d 664 (1991). In cases in which the depicted children have reached puberty, the government can call expert witnesses to testify as to the physical development of the depicted person, and present testimony regarding the way the creator, distributor, or possessor labeled the disks, files, or videos. See e.g. United States v. Robinson, 137 F.3d 652, 653 (1st Cir.1998) (noting that the pornographic photographs listed the ages of boys depicted). Based on these examples, I agree with the First Circuit which found that the standard for evaluating the key provisions of the CPPA “is an objective one.” Hilton, 167 F.3d at 75. “A jury must decide, based on the totality of the circumstances, whether an unsuspecting viewer would consider the depiction to be an actual individual under the age of eighteen engaging in sexual activity.” Id.
As an additional safeguard against arbitrary prosecutions, the government must satisfy the element of scienter before it can obtain a valid conviction under the CPPA. See 18 U.S.C.A. § 2252A (West Supp.1999). In any CPPA prosecution, the government must prove beyond a reasonable doubt that the individual “knowingly” produced, distributed, or possessed sexually explicit material and that the material depicts a person who appeared to the pornographer to be under the age of eighteen. See Id. See also United States v. X-Citement Video, Inc., 513 U.S. 64, 78, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) (holding that the scienter requirement “extends to both the sexually explicit nature of the material and to the age of the performers”). “Thus, a defendant who honestly believes that the individual depicted in the image appears to be 18 years old or older (and is believed by a jury), or who can show that he knew the image was created by having a youthful-looking adult pose for it, must be acquitted, so long as the image was not presented or marketed as if it contained a real minor.” Hilton, 167 F.3d at 75-76. Based on these safeguards, the majority’s concerns about arbitrary and discriminatory prosecutions are misplaced. See Id. at 74-77 (finding that the CPPA is not unconstitutionally vague); Acheson, 195 F.3d at 652-53 (same).
IV.
In sum, the CPPA is not, as the majority claims, an attempt to regulate “evil idea[s].” Instead, the CPPA is an impor*1104tant 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.
. Computer-generated child pornography comes in many different forms. For purposes of clarity, however, I will divide it into two categories. The first is "virtual" child pornography and the second is "computer-altered” child pornography.
The key to virtual child pornography is that it does not depict an actual or "identifiable minor.” Through a technique called "morphing,” a picture of a real person is transformed into a picture of a child engaging in sexually explicit activity. See S.Rep. No. 104-358, at 15-16. Although the computer-generated image looks real, the children depicted in the image do not actually exist. See id. The picture is therefore 100% "virtual.”
Computer-altered child pornography, by contrast, contains the image of an actual or "identifiable minor.” This type of child pornography can be created by scanning a photograph of a child into the computer and then manipulating the picture so that the child’s face appears on the body of another person who is engaged in sexually explicit activity. See id. Despite the alteration to the picture, the child is still "recognizable.” See 18 U.S.C.A. § 2256(9) (West Supp.1999). Computer-altered child pornography is banned under 18 U.S.C.A. § 2256(8)(C) (West Supp. 1999). Appellants did not challenge this pro*1098vision, and therefore, it will not be discussed here.
. The congressional findings were based in large part on testimony presented to the Senate Judiciary Committee. See Child Pornography Prevention Act of1995: Hearing before the Senate Judiciary Committee, 104th Cong., 2d Sess. (1996) (hereinafter "Senate Plearing”).
. See also Senate Hearing, at 70 (statement of Bruce Taylor, Chief Counsel for the National Law Center for Children and Families) (stating that "real and apparent [child pornography] ... are equally dangerous because both have ... the same seductive effect on a child victim").
. See also Senate Hearing, at 35 (testimony of Dr. Victor Cline, Emeritus Professor in Psychology at the University of Utah); Id. at 20, 23, 30 (testimony of Jeffrey J. Dupilka, Deputy Chief Postal Inspector for Criminal Investigations).
.See Senate Hearing, at 122 (testimony of Professor Frederick Schauer, Frank Stanton Professor of the First Amendment, Kennedy School of Government, Harvard University) (stating that it is "undoubtedly true” that "somewhere in this chain of computer-generated production there are going to be real children ... involved”).
. Scholarly writers also support using a balancing test to determine whether virtual child pornography is "outside the protection of the First Amendment.” See e.g. Adam J. Wasser-man, Virtual.Child.Pom.Com: Defending the Constitutionality of the Criminalization of Computer-Generated. Child Pornography by the Child Pornography Prevention Act of 1996 — A Reply to Professor Burke and Other Critics, 35 Harv. J. on Legis. 245, 274-78 (1998).