dissenting.
In my view, the court has failed to afford certain erotic materials the First Amendment protection that they deserve. I refer, of course, not to sexually explicit photographs of men and women who are under age, but to sexually explicit photographs of men and women who are not. Though the court appropriately adverts to the Supreme Court’s caution that a statute like the one under consideration here “would raise serious constitutional doubts,” it nevertheless resolves those doubts in favor of the State of Iowa. In doing so, the court relies mainly on three propositions, none of which, I believe, can properly serve to dispose of the case in the manner that the court suggests.
The court makes the point that a mistake-of-age defense is contrary to the state’s interest in protecting minors from the consequences of their own ill-conceived decisions. In support of this rationale, the court makes the asseveration that “the defense will typically [my emphasis] be proved by evidence that the minor was a willing, perhaps deceit*374ful participant.” First of all, a minor’s willingness would be completely irrelevant to a mistake-of-age defense. I am unclear, moreover, where the court could find the data to support the assumption that the minors involved in these kinds of cases are typically deceitful. A properly crafted mistake-of-age defense, in any case, would doubtless impose some affirmative duties of inquiry on defendants seeking to rely on it, and it seems likely that it would almost always be appropriate to instruct a jury that a defendant cannot rely on his or her deliberate ignorance when claiming the benefit of such a defense. How such a mistake-of-age defense would measurably encourage deeeitfulness is a mystery, and, in any event, the state’s interest in protecting minors from themselves becomes less weighty as their deceitfulness becomes less typical.
The distinction that the court draws between producers of erotic materials and its distributors is without legal significance. The fact that a producer is in some measure “like” a statutory rapist (because they both deal directly with the young woman or girl in question) makes for an imperfect analogy, because there is no constitutional right to engage in consensual sexual intercourse with anyone (except, presumably, one’s spouse), but there is a right to take erotic pictures: Statutes forbidding fornication are not unconstitutional, but statutes prohibiting the production of nonobscene, sexually explicit material are. Not providing a mistake-of-age defense to a person who engages in sexual acts with a minor, therefore, does not produce substantial negative neighborhood effects on a constitutional right, enumerated or otherwise; and the First Amendment provides probably the most explicit, expansive, and pervasive protections against an intrusive government that our Bill of Rights contains. If it is true, moreover, as the court opines, that in “this information age, a prudent photographer ... may readily ... confirm the age of virtually every young-looking model,” then a defendant claiming that he or she reasonably mistook a model’s age will hardly ever prevail, and the dire consequences that the court predicts would follow if such a defense were allowed evaporate completely in the face of its own argument.
Most importantly, the court makes the extraordinary assertion that the right that the defendant says will be chilled by the Iowa statute is “qualitatively weak.” The court purports to find this legal principle in the dissenting opinion of Mr. Justice Sealia in United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994). A dissenting opinion is an odd place at best to look for an applicable legal proposition. In any case, the court posits an interpretation of Young v. American Mini Theatres, Inc., 427 U.S. 50, 61, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310 (1976), that the ease will not in fact bear. Young does not say that the First Amendment is less solicitous of nonobscene, sexually explicit materials than it is of other kinds of protected speech. What it says is that, in the circumstances of that case, there was nothing to justify “the exceptional approach to constitutional adjudication recognized in cases like Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 [1965].” The Court in this passage was speaking to the point of whether the extraordinary remedy of an injunction against further enforcement of a state statute was appropriate because it was substantially overbroad, not whether the type of speech that was chilled was somehow less worthy of First Amendment protection.
This last proposition, far from being endorsed by the Court in Young, as our court maintains, was in fact specifically rejected by it. Language to that effect does indeed appear in Young, 427 U.S. at 70-71, 96 S.Ct. at 2452-53, but in a part of the Court’s opinion in which Mr. Justice Powell explicitly refused to join and which therefore did not command a majority of the Court. See id. at 73 n. 1, 96 S.Ct. at 2453 n. 1, where Mr. Justice Powell opines that he does “not think we need reach, nor am I inclined to agree with, the holding in Part III (and supporting discussion) that nonobscene, erotic materials may be treated differently under First Amendment principles from other forms of protected expression.” He goes on to say, id., that he does “not consider the conclusions in Part I of the opinion to depend on distinctions between protected speech.” Our court simply misreads Young and provides no other authority for its conclusion that the right at stake here is “qualitatively weak.”
*375Because I would take seriously the Supreme Court’s admonition in X-Citement Video, 513 U.S. at 78, 115 S.Ct. at 472, that a statute that is “completely bereft of a scien-ter requirement as to the age of the performers would raise serious constitutional doubts,” and because it is apparent that the Iowa statute will substantially discourage speech that is protected by the First Amendment, I would hold it void. I believe that the statute’s burden on free speech rights is substantial, because employing minors for sexual purposes is these days the subject of a great deal of public anxiety, an anxiety that stigmatizes those who are merely accused of it in a very severe way. A conviction for a crime like the one charged here, moreover, will almost certainly cause significant hardship by depriving those convicted of their liberty for a considerable period of time and by creating lasting difficulties for them because of laws that require them to register with local authorities following release. These kinds of burdensome disabilities will surely cause many producers of protected erotic matter to forfeit their First Amendment rights, and this is precisely the kind of forfeiture that courts ought to be assiduous to give citizens the means to avoid.
I would hold that the statute is unconstitutional because it does not allow, at a minimum, a defendant to prove that he or she reasonably believed that the person he or she engaged to participate in the depiction of nonobscene sexual activity was not a minor. It seems to me that there is a real question whether the Constitution is satisfied if the defendant must prove such a defense by clear and convincing evidence, as suggested in United States v. U.S. Dist. Court for Cent. Dist. of Cal., 858 F.2d 534, 543 (9th Cir.1988). But since the court is not inclined to hold that mistake of age has any constitutional relevance at all in this case, I do not feel it necessary to discuss this point, along with some others that a fully adequate consideration of the case would in fact require.
I respectfully dissent for the reasons adumbrated.