United States v. Frabizio

United States Court of Appeals
For the First Circuit

No. 05-2034

UNITED STATES OF AMERICA,

Appellant,

v.

RUDY FRABIZIO,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Torruella, Lynch, and Howard,
Circuit Judges.

Dana M. Gershengorn, Assistant United States Attorney, with
whom Seth P. Berman, Assistant United States Attorney, and Michael
J. Sullivan, United States Attorney, were on brief, for appellant.
Miriam Conrad, with whom Federal Defender Office was on brief,
for appellee.

August 16, 2006
 LYNCH, Circuit Judge. This is the government's appeal

from a pre-trial order by a district court excluding from jury

consideration three photographs, which the government has charged

are child pornography.

In 2004, Rudy Frabizio was indicted on, inter alia, one

count of possession of child pornography, in violation of 18 U.S.C.

§ 2252(a)(4)(B). That statute prohibits the knowing possession of:

1 or more books, magazines, periodicals,
films, video tapes, or other matter which
contain any visual depiction that has been
mailed, or has been shipped or transported in
interstate or foreign commerce, or which was
produced using materials which have been
mailed or so shipped or transported, by any
means including by computer, if --
(i) the producing of such visual
depiction involves the use of a minor
engaging in sexually explicit conduct;
and
(ii) such visual depiction is of such
conduct . . . .

18 U.S.C. § 2252(a)(4)(B). "[S]exually explicit conduct" is, in

turn, defined as, inter alia, "lascivious exhibition of the

genitals or pubic area of any person." Id. § 2256(2)(A)(v).1

The government's filings state that Frabizio's former

employer, the Limbach Company, had found certain images on

Frabizio's work computer and had terminated Frabizio for violating

company rules concerning internet usage -- in particular, rules

1
The term "sexually explicit conduct" also includes other
conduct -- sexual intercourse, bestiality, masturbation, and
sadistic or masochistic abuse -- not relevant to this case. 18
U.S.C. § 2256(2)(A)(i)-(iv).

-2-
prohibiting the viewing of inappropriate websites. FBI examiners

then found a number of images on Frabizio's work computer that

formed the basis for his indictment for possession of child

pornography. In response to Frabizio's request for a bill of

particulars, the government identified nineteen specific images it

intended to introduce at trial.

Frabizio moved to have the district court review the

nineteen images before trial and to exclude from evidence those

that the court determined would not meet the legal definition of

"sexually explicit conduct."2 The government objected to the

procedure, arguing that such a preliminary review of the images

interfered with the jury's function. The government also argued

that the standard to be applied if the court were to engage in such

a review should be whether a reasonable jury could find that an

image depicts "sexually explicit conduct" within the meaning of 18

U.S.C. § 2256(2)(A).

On April 21, 2005, the district court granted Frabizio's

request that it perform a preliminary review of the images in order

to determine their admissibility. The court, as the government had

2
There is no dispute that the images were "visual
depictions." Frabizio argued only that those visual depictions
were not of "sexually explicit conduct."
To obtain a conviction under 18 U.S.C. § 2252(a)(4)(B),
the government must prove several elements independent of the
requirement that the visual depiction be of "sexually explicit
conduct," including the element that the visual depiction be
"knowingly possess[ed]." This case involves no question about
these other elements of the crime.

-3-
urged, adopted the standard of whether a reasonable jury could find

that the images depicted "sexually explicit conduct" in the form of

"lascivious exhibition of the genitals or pubic area."

At the hearing before the district court, the government

explained that it was prepared to present evidence that three of

the images, Exhibits 1, 2, and 3, were of "known child victims."3

This evidence was significant because "the government must prove

that an image depicts actual children to sustain a . . .

conviction" under the statute. United States v. Hilton, 386 F.3d

13, 18 (1st Cir. 2004) (per curiam) (citing Ashcroft v. Free Speech

Coal., 535 U.S. 234, 251-56 (2002)). Frabizio focused his

challenge on those three images and one other. After examining the

images, and eschewing consideration of the circumstances in which

the photographs were produced or of any other evidence, the

district court issued an order on May 9, 2005, in which it excluded

from evidence the three images of the putative "known child

victims," Exhibits 1, 2, and 3, but agreed with the government that

the fourth challenged exhibit was admissible.

3
As to these three exhibits, the government said that it
had "a witness . . . who has met the children [depicted in the
three photographs], knows that [the children were] between the ages
of 10 and 12 when [the photographs] were taken, [and] knows that
they were lured to a remote location by a stream in Paraguay and
made to remove their clothing and [to] pose." In contrast, as to
the other sixteen images, the government stated that it would have
"to rely on the testimony of experts about whether or not the
children involved are real."

-4-
 Utilizing the so-called "Dost factors," see United States

v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff'd sub nom.

United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), the

district court concluded that no reasonable jury could conclude

that Exhibits 1, 2, or 3 met the statutory requirement of

"lascivious exhibition of the genitals or pubic area." The court

then said it was excluding the images pursuant to Rule 104(a) of

the Federal Rules of Evidence.4 In a footnote, the court also said

it would use Rule 403 of the Federal Rules of Evidence as an

alternate basis for exclusion, because the government could rely on

the sixteen other images identified in its bill of particulars, and

thus Exhibits 1, 2, and 3 would only be cumulative.

In this interlocutory appeal, over which we have

jurisdiction pursuant to 18 U.S.C. § 3731, the government

challenges the exclusion of the three images. We reverse,

disagreeing both with the district court's ultimate conclusion and

with the methodology of analysis that it used.

4
Rule 104(a) merely provides for preliminary
determinations of admissibility. See Fed. R. Evid. 104(a)
("Preliminary questions concerning the qualification of a person to
be a witness, the existence of a privilege, or the admissibility of
evidence shall be determined by the court . . . ."). It does not
in itself establish the correctness of the procedures used here.

-5-
 I.

Exclusion of the Exhibits Under Fed. R. Evid. 104(a)

The question before us, as framed by the parties, is

whether a reasonable jury reviewing the three photographs could

have concluded that they met the statutory requirement of

"lascivious exhibition of the genitals or pubic area."5 No

deference is owed to the district court's resolution of this

question. Indeed, this question, like one arising in the context

of a challenge to the sufficiency of evidence supporting a jury's

verdict, is one of which we engage in de novo review. Cf. United

States v. Rayl, 270 F.3d 709, 712 (8th Cir. 2001) (reviewing a

sufficiency challenge to a jury verdict of guilty in a child

pornography case); cf. also United States v. Rivera Rangel, 396

F.3d 476, 482 (1st Cir. 2005) (engaging in de novo review of

sufficiency challenge); United States v. Pimental, 380 F.3d 575,

583 (1st Cir. 2004) (same). Also, our review of the meaning of the

statute is de novo. See In re Pharmatrak, Inc., 329 F.3d 9, 19

5
This appeal did not come to us in the usual posture of
appellate review of a district court's grant or denial of a motion
for a judgment of acquittal after the presentation of the
government's case. See Fed. R. Crim. P. 29; see also, e.g., United
States v. Rayl, 270 F.3d 709, 714-15 (8th Cir. 2001); United States
v. Horn, 187 F.3d 781, 789-90 (8th Cir. 1999); United States v.
Muick, 167 F.3d 1162, 1166 (7th Cir. 1999); United States v.
Villard, 885 F.2d 117, 120-21 (3d Cir. 1989). The government has
chosen not to challenge on appeal the procedure used by the
district court, so we do not decide the question of its
appropriateness.

-6-
(1st Cir. 2003); United States v. Horn, 187 F.3d 781, 789 (8th Cir.

1999).

The statutory question before us must be placed in the

context of Supreme Court's decision in New York v. Ferber, 458 U.S.

747 (1982), which upheld against a First Amendment challenge a New

York statute criminalizing the distribution of child pornography.

In Ferber, the Court held that the New York statute served the

purpose of "prevention of sexual exploitation and abuse of

children," which was "a government objective of surpassing

importance." Id. at 757. The Court recognized that "the use of

children as subjects of pornographic materials is harmful to the

physiological, emotional, and mental health of the child[ren]."

Id. at 758. The distribution of child pornography, the Court

reasoned, "is intrinsically related to the sexual abuse of children

in at least two ways": "First, the materials produced are a

permanent record of the children's participation and the harm to

the child[ren] is exacerbated by their circulation. Second, the

distribution network for child pornography must be closed if the

production of material which requires the sexual exploitation of

children is to be effectively controlled." Id. at 759 (footnote

omitted); see also Osborne v. Ohio, 495 U.S. 103, 110-11 (1990)

(upholding the prohibition on private possession of child

pornography for these same reasons, among others).

-7-
 Because of the "particular and more compelling interest

in prosecuting those who promote the sexual exploitation of

children," the Court held that all child pornography -- even that

which is not obscene under the standard set forth in Miller v.

California, 413 U.S. 15 (1973) -- is outside the scope of the First

Amendment and can be banned. Ferber, 458 U.S. at 761; see also

Free Speech Coal., 535 U.S. at 240 ("As a general rule, pornography

can be banned only if obscene, but under Ferber, pornography

showing minors can be proscribed whether or not the images are

obscene . . . .").

Importantly for our case, the Supreme Court also held in

Ferber that laws banning child pornography withstand First

Amendment scrutiny so long as "the conduct to be prohibited [is]

adequately defined by the applicable . . . law, as written or

authoritatively construed"; the material prohibited "involve[s]

live performance or photographic or other visual reproduction of

live performances"; and "criminal responsibility [is not] imposed

without some element of scienter on the part of the defendant."

Ferber, 458 U.S. at 764-65. The Court then looked to the New York

statute, which prohibited the distribution of material depicting

"sexual conduct," which was statutorily defined as, inter alia,

"lewd exhibition of the genitals." The Court concluded this was a

definition which did not offend the First Amendment. See id. at

765, 773-74.

-8-
 The Supreme Court went beyond that. It also observed

that the term "lewd exhibition of the genitals" was a known

quantity in this area of law, and that it "was given in Miller as

an example of a permissible regulation." Id. at 765 (citing

Miller, 413 U.S. at 25); see also Osborne, 495 U.S. at 114.

The language of the federal statute under consideration

in this case is virtually the same as that upheld in Ferber as an

adequate definition in light of First Amendment concerns.6 In 18

U.S.C. § 2256(2)(A), the word "lascivious" replaces the word

"lewd," as was used by the New York statute upheld in Ferber.

Moreover, the federal prohibition extends beyond "the genitals" to

the "pubic area."7 The Courts of Appeals have uniformly treated

the terms "lewd" and "lascivious" as materially equivalent. See,

e.g., United States v. Adams, 343 F.3d 1024, 1035 (9th Cir. 2003)

("We hold that the statute at issue in Ferber is legally

6
The New York statute under consideration in Ferber
defined "sexual conduct" in terms almost identical to the
definition of "sexually explicit conduct" set forth in 18 U.S.C. §
2256(2)(A). See N.Y. Penal Law § 263.00(3) (McKinney 1980)
("'Sexual conduct' means actual or simulated sexual intercourse,
deviate sexual intercourse, sexual bestiality, masturbation,
sado-masochistic abuse, or lewd exhibition of the genitals.").
7
The federal child pornography statute also used the term
"lewd" until 1984, when Congress substituted in the word
"lascivious" to "make it clear that an exhibition of a child's
genitals does not have to meet the obscenity standard to be
unlawful." Dost, 636 F. Supp. at 831 (quoting 130 Cong. Rec.
S3510, S3511 (daily ed. Mar. 30, 1984) (statement of Rep.
Specter)); see also United States v. Freeman, 808 F.2d 1290, 1292
(8th Cir. 1987).

-9-
indistinguishable from 18 U.S.C. § 2256(2)(A). . . . [T]his court

has equated 'lascivious' with 'lewd.'" (citing Wiegand, 812 F.2d

at 1243)); United States v. Reedy, 845 F.2d 239, 241 (10th Cir.

1988). The Supreme Court has itself endorsed this position. See

United States v. X-Citement Video, Inc. (X-Citement Video II), 513

U.S. 64, 78-79 (1994) (approving of United States v. X-Citement

Video, Inc., 982 F.2d 1285, 1288 (9th Cir. 1992), rev'd on other

grounds, X-Citement Video II, 513 U.S. 64). The addition of the

term "pubic area" has independent significance in that it broadens

the class of exhibitions that may be prohibited.

"Lascivious" is a "commonsensical term," and whether a

given depiction is lascivious is a question of fact for the jury.

Wiegand, 812 F.2d at 1243; see also Rayl, 270 F.3d at 714 ("[T]he

question whether materials depict 'lascivious exhibition of the

genitals,' an element of the crime, is for the finder of fact.");

Reedy, 845 F.2d at 241 ("This [c]ourt agrees . . . that

'lascivious' is . . . a commonsensical term . . . ." (internal

quotation mark omitted) (quoting Wiegand, 812 F.2d at 1243)).

Indeed, "[t]here is a consensus among the courts that whether the

item to be judged is lewd, lascivious, or obscene is a

determination that lay persons can and should make."8 United

8
For this reason, expert testimony is not required on the
subject. See United States v. Arvin, 900 F.2d 1385, 1390 (9th Cir.
1990). There is, at the same time, no general rule that it is
prohibited.

-10-
States v. Arvin, 900 F.2d 1385, 1390 (9th Cir. 1990); see also id.

(citing cases). The courts are also in agreement that the term

"lascivious" is sufficiently well defined to provide persons "of

reasonable intelligence, guided by common understanding and

practices," notice of what is permissible and what is

impermissible. United States v. Freeman, 808 F.2d 1290, 1292 (8th

Cir. 1987) (rejecting vagueness challenge); accord, e.g., X-

Citement Video II, 513 U.S. at 78-79 (endorsing circuit court's

conclusion that "lascivious" was a constitutionally permissible

standard and was neither overbroad nor vague); Adams, 343 F.3d at

1035-36 (rejecting argument that "lascivious" is "too subjective"

and "not susceptible to a common understanding"); cf. Ferber, 458

U.S. at 765 (holding that the New York statute was not

unconstitutionally underinclusive, because it "sufficiently

describes a category of material the production and distribution of

which is not entitled to First Amendment protection").

Subject to motions under Rule 29 of the Federal Rules of

Criminal Procedure, it is up to the jury to determine whether the

images identified in the bill of particulars as a basis for an

indictment under 18 U.S.C. § 2252(a)(4)(B) constitute visual

depictions of "sexually explicit conduct," defined as "lascivious

exhibition of the genitals or pubic area" under 18 U.S.C.

§ 2256(2)(A)(v). In making this determination, the standard to be

applied by the jury is the statutory standard. The statutory

-11-
standard needs no adornment. The Supreme Court has made clear that

the Constitution does not require additional glossing or narrowing

of the standard, see Ferber, 458 U.S. at 765; cf. id. at 764 ("A

trier of fact need not find that the material appeals to the

prurient interest of the average person; it is not required that

sexual conduct portrayed be done so in a patently offensive manner;

and the material at issue need not be considered as a whole."), and

Congress has chosen not to employ any additional glossing. Further

definitional guides are not required and, indeed, would be

prohibited if they functioned to narrow the statutory definition.9

Using the statutory standard and asking whether a

reasonable jury could conclude that Exhibits 1, 2, and 3 met the

standard, this panel has reviewed the disputed images and has

concluded that a reasonable jury could decide that the three

photographs constitute lascivious exhibitions of the genitals or

pubic area within meaning of the statute.

9
In other areas, this court has cautioned against judicial
attempts to clarify commonsensical standards that the jury is well
equipped to interpret and apply. For example, we have held that
the phrase "beyond a reasonable doubt" "need[s] no defining or
refining." United States v. Campbell, 874 F.2d 838, 843 (1st Cir.
1989). Accordingly, we have warned that "[m]ost efforts at
clarification result in further obfuscation of the concept," and
that any judicial gloss on the phrase that "reduce[s] the burden of
proof on the government by expanding the degree of doubt
permissible" would be prohibited. Id.; see also United States v.
Gibson, 726 F.2d 869, 874 (1st Cir. 1984) ("[A]ny attempt to define
'reasonable doubt' will probably trigger a constitutional
challenge.").

-12-
 We describe how a reasonable jury could view the three

exhibits under consideration, with full recognition that a thousand

words are not necessarily worth a picture. Each of the three

photographs depicts a nude girl, who is posed alone and who is

looking directly at the camera. Each girl appears on the cusp of

puberty, either prepubescent or adolescent. The subjects of the

photographs, who are of an age when girls normally are clothed even

when in nature or in a stream, are completely unclothed (except for

some jewelry), and the settings of the photographs provide no ready

explanation that makes the nudity indisputably innocent. Moreover,

in each photograph, a jury could reasonably conclude that there was

an "exhibition" of the "pubic area": each of the girls' legs are

parted and the pubic area is plainly visible. Indeed, the photos

could reasonably be seen as focusing on or particularly drawing

attention to the girls' pubic areas and, specifically, to their

vaginas. A jury could reasonably conclude that none of the girls'

postures were natural or spontaneous, that each girl was

deliberately posed to exhibit her pubic area, and that the posture

in which each was posed was not a comfortable one. As a jury will

consider the images, we think the wisest course is to avoid more

detailed description of them.

In light of the criteria under the statute and the

constitutional limits set by Ferber, and our own review of the

exhibits, we conclude that a reasonable jury could find that the

-13-
three photographs constitute "lascivious exhibitions of the

genitals or pubic area" within the meaning of the statute, and that

the district court erred in taking the evidence away from the jury.

II.

Difficulties with the Analytical Methodology
and the Use of the Dost Factors

Having held that the district court erred in its

determination, under Rule 104(a), that no reasonable jury could

find these images to be a lascivious display of the genitals or

pubic area, we also express concern about the approach that the

district court took in reaching its decision -- an approach that,

we recognize, was urged upon the court by the parties. In

excluding the three exhibits, the court analyzed the question of

whether to exclude the evidence almost exclusively in terms of the

Dost factors, and, in our view, overemphasized those factors in a

way which raised the risk of inappropriately limiting the statute.

This court has described the Dost factors as follows:

(1) whether the genitals or pubic area are the
focal point of the image; (2) whether the
setting of the image is sexually suggestive
(i.e., a location generally associated with
sexual activity); (3) whether the child is
depicted in an unnatural pose or inappropriate
attire considering her age; (4) whether the
child is fully or partially clothed, or nude;
(5) whether the image suggests sexual coyness
or willingness to engage in sexual activity;
and (6) whether the image is intended or
designed to elicit a sexual response in the
viewer.

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United States v. Amirault, 173 F.3d 28, 31 (1st Cir. 1999) (citing

Dost, 636 F. Supp. at 832).

In Amirault, this court gave a qualified endorsement of

the Dost factors, stating that they are "generally relevant and

provide some guidance." Id. at 32. We did not, however, suggest

that the Dost factors were the equivalent of -- or established the

limits of -- the statutory term "lascivious." Indeed, we reached

the opposite conclusion: "[w]e emphasize[d] . . . that these

factors are neither comprehensive nor necessarily applicable in

every situation" and that "[t]he inquiry will always be case-

specific." Id.; see also United States v. Hilton, 257 F.3d 50, 57

(1st Cir. 2001) (warning that the Dost factors, "although

'generally relevant,' are not comprehensive[,] and each

determination of whether an image contains a lascivious display is

necessarily case specific" (quoting Amirault, 173 F.3d at 32)).

In this case, the district court's analysis, although

reciting the above language, in fact gave the Dost factors greater

weight than warranted. The court appeared to treat the Dost

factors as exhaustive and to use them to set the boundaries of the

statutory term "lascivious." The court thus applied the six Dost

factors in a way that accorded to them the same status as the

statutory definition itself.

The consequence of the district court's unqualified

application of the Dost factors was to take the issue of the

-15-
lasciviousness of the three images away from a jury. None of the

cases in which this court has referred to the Dost factors raised

such a prospect.10 In Amirault, for example, the issue on appeal

was whether the district court had properly increased the sentence,

under the U.S. Sentencing Guidelines, of a defendant who had

pleaded guilty to one count of possession of child pornography, by

applying a cross-reference that resulted in a higher base-offense

level if the crime involved trafficking in visual depictions of

lascivious exhibition of the genitals or pubic area of a minor.

173 F.3d at 30-31. In Amirault, the task of interpreting and

applying the Sentencing Guidelines was for the court, and any close

"judgment calls" -- and we noted that there were some -- were the

court's to make. Id. at 35. Indeed, the particular image on which

the trafficking cross-reference was predicated was not one that had

formed the basis of the conviction. Id. at 30.

No other circuit court, as best we can tell, has ever

approved the use of the Dost factors in a pretrial proceeding to

10
See Hilton, 257 F.3d at 57-58 (reinforcing the limited
and qualified use of the Dost factors, and concluding, on de novo
review of a sentencing determination, that certain images were not
lascivious); United States v. Brunette, 256 F.3d 14, 17-18 (1st
Cir. 2001) (using the Dost factors in evaluating the existence of
probable cause for a warrant); United States v. Nolan, 818 F.2d
1015, 1019 n.5 (1st Cir. 1987) (describing the Dost factors without
applying them or endorsing them).
As should be clear from our earlier discussion, if the
Dost factors were viewed, contrary to the law of this circuit, as
being co-extensive with the statute, then the district court
nevertheless erred.

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remove the consideration of the lasciviousness of an image from a

jury.11

There are many reasons for the need for caution about the

use of the Dost factors, particularly in this way. First is the

fact that the Dost factors have fostered myriad disputes that have

led courts far afield from the statutory language. One dispute is,

for example, how many of the factors must be present in an image

for it to qualify as "lascivious."12 Compare, e.g., United States

v. Wolf, 890 F.2d 241, 245 & n.6 (10th Cir. 1989) ("We do not hold

that more than one Dost factor must be present . . . ."), with

United States v. Villard, 885 F.2d 117, 122 (3d Cir. 1989)

("Although more than one factor must be present in order to

establish 'lasciviousness,' all six factors need not be present.").

Another dispute is about what the specific factors mean. See,

e.g., Amirault, 173 F.3d at 34 (cataloging disagreement about what

the sixth Dost factor means). As one commentator observed, "the

11
Indeed, only one circuit court has even suggested -- in
dicta -- that a district court should conduct a preliminary review
of images before they are submitted to a jury, and even then only
where there was "potential prejudice in allowing the government to
introduce and submit to the jury a large volume of materials that
are prurient but non-obscene along with a few materials that could
properly be found to be child pornography." Rayl, 270 F.3d at 714.
Rayl did not mention the Dost factors. Instead, it indicated that
the appropriate standard was the statutory standard of "lascivious
exhibition of the genitals or pubic area." Id.
12
In fact, this was precisely one of the disputes that
arose in this case. The government had argued before the district
court that the court should send an image to the jury so long as it
found that at least one Dost factor was present.

-17-
Dost test has produced a profoundly incoherent body of case law."

A. Adler, Inverting the First Amendment, 149 U. Pa. L. Rev. 921,

953 (2001). There is every reason to avoid importing unnecessary

interpretive conundrums into a statute, especially where the

statute employs terms that lay people are perfectly capable of

understanding.

Even more significantly, there is a risk that the Dost

factors will be used to inappropriately limit the scope of the

statutory definition.13 That is impermissible. We offer two

examples in which such a risk has been raised.

The first example is one that was noted by the Ninth

Circuit when affirming one of the convictions in the Dost case. In

United States v. Wiegand, 812 F.2d 1239, the Ninth Circuit noted

that the Dost factors were "over-generous to the defendant." Id.

at 1244. Specifically, the court took issue with the fifth factor

articulated by the district court: "whether the visual depiction

suggests sexual coyness or a willingness to engage in sexual

activity." Dost, 636 F. Supp. at 832. The appellate court

expressed disapproval at "[t]he standard employed by the district

court[, which] . . . impl[ied] . . . that the pictures would not be

lascivious unless they showed sexual activity or willingness to

13
Most cases endorsing Dost do so against attacks by the
defendant, fearful the Dost factors will expand the statutory term.
This case arises in a different posture. Here the government has
objected to the use made by the district court of the Dost factors
as limiting the scope of the statutory term.

-18-
engage in it." Wiegand, 812 F.2d at 1244. Emphasizing that "[t]he

offense defined by the statute is depiction of a 'lascivious

exhibition of the genitals,'" the appellate court held that it was

enough that "the pictures were an exhibition," "[t]he exhibition

was of the genitals," and "[e]ach of the pictures featured the

child photographed as a sexual object." Id.

It is obvious that if an image does depict a sexually

alluring look from the minor, it will be easier to show that the

image is lascivious. The absence of a sexual come-on, though, does

not mean that an image is not lascivious, as Wiegand and other

cases have noted. See, e.g., United States v. Knox, 32 F.3d 733,

747 (3d Cir. 1994) ("Children posing for pornographic pictures may

suffer dramatic harm regardless of whether they have an 'adult'

look of sexual invitation or coyness on their face."); Wolf, 890

F.2d at 247 (noting that "a sexually exploitative photograph of a

child need not portray the victim in a pose that 'depicts lust,

wantonness, sexual coyness or other inappropriate precocity'").

Children do not characteristically have countenances inviting

sexual activity, and the statute does not presume that they do. By

suggesting that the child subject must exhibit sexual coyness in

order for an image to be lascivious, the district court in Dost ran

the risk of limiting the statute.

A second example of how the Dost factors may risk

limiting the statute manifested itself in this case. In its order,

-19-
the district court overread Amirault as holding that a jury, in

determining whether a given image constitutes a "lascivious

exhibition of the genitals or pubic area," is limited to

considering "the objective criteria of the photograph's design,"

Amirault, 173 F.3d at 35 -- what the district court called "the

four corners of the image" -- and nothing else.14 The district

court erred in stating that this court has adopted a general "four

corners rule." Amirault did not adopt such a rule,15 and the text

of the statute itself does not require it.

14
The district court also noted that "Frabizio argued that
any information as to the purpose for which the photographs were
taken is hearsay." To the extent the court relied on this
alternative reasoning, we note that Fed. R. Evid. 104(a) explicitly
provides that "[i]n making its determination [of admissibility of
evidence, the court] is not bound by the rules of evidence except
those with respect to privileges."
15
The language in Amirault to which the district court
cited in support of its view came in the context of Amirault's
construction of the sixth Dost factor -- that of intent to elicit
a sexual response. Amirault did not express a general rule
limiting the question of lasciviousness to the four corners of the
photograph. It only expressed doubt about the government's
argument in that case that the court should take into account the
subjective intent of the producer or the subjective reaction of the
viewer of the image when deciding whether a particular depiction
meets the sixth Dost factor. See id. at 34 (registering "serious
doubts that focusing upon the intent of the deviant photographer is
any more objective than focusing upon a pedophile-viewer's
reaction," and noting that "a focus on the photograph's use seems
inconsistent with the statute's purpose of protecting the child").
Amirault's commentary was on different issues, and it did not
exclude from consideration any evidence that the subjects of the
depictions were known child victims who were exploited in the
process of making the photographs. In fact, Amirault explicitly
observed as to the image under consideration that "the
circumstances of the photograph's creation are unknown." Id.

-20-
 The issue of the four corners rule, and even of what it

means, has not been decided by this circuit, and we do not decide

it here. The issue is complicated, and there are arguments going

different ways. For example, it is clear that the jury may hear

evidence about the circumstances of the production of an image in

determining whether the child depicted therein is real. It is

arguable that a jury should not be precluded from considering such

evidence on the question of lasciviousness as well. The laws

prohibiting possession of child pornography are constitutional

because the government has a compelling interest in preventing

sexual exploitation of children; it is not obvious that a jury

cannot consider evidence of exactly that exploitation in evaluating

the lasciviousness of the materials. Cf. Free Speech Coal., 535

U.S. at 254 ("In the case of the material covered by Ferber, the

creation of the speech is itself the crime of child abuse

. . . ."); see also id. at 250 (noting that "speech [that] had what

the Court in effect held was a proximate link to the crime from

which it came" was not constitutionally protected). But there are

also arguments, usually made in the context of the very different

question of whether the subjective reaction or intent of the viewer

should be taken into account when determining whether an image is

lascivious, that lasciviousness should be determined from the image

alone. Cf. Villard, 885 F.2d at 125 (holding, in the context of a

sufficiency-of-the-evidence challenge to a jury verdict, that in

-21-
evaluating the question of an image's lasciviousness, "[w]e must

. . . look at the photograph, rather than the viewer," because if

"we were to conclude that the photographs were lascivious merely

because Villard found them sexually arousing, we would be engaging

in conclusory bootstrapping").

The issue, however, has not been squarely presented to us

in this case.16 We flag it only to express concern that in deriving

such a prohibition from Dost or from a misunderstanding of our case

law, the district court ran the risk of impermissibly narrowing the

scope of the statute by imposing upon the statute a limitation that

was in no way compelled by the statutory text itself.

We stress that our holding today is limited: We do not

hold that the Dost factors may never be used. We hold only that

they are not the equivalent of the statutory standard of

"lascivious exhibition" and are not to be used to limit the

statutory standard.17

16
The government had argued before the district court that
testimony that a child was exploited in the process of creating an
image provides objective evidence that the picture was taken for
the purpose of child pornography and is thus evidence that a jury
ought to be able to consider in determining whether a photograph is
objectively lascivious.
17
The concurring opinion states that our position is
incompatible with this court's prior decision in Amirault. To the
contrary, our holding is not just consistent with, but takes as its
starting point, Amirault's holding that the Dost "factors are
neither comprehensive nor necessarily applicable in every
situation." 173 F.3d at 32.

-22-
 III.

Exclusion of Exhibits Under Fed. R. Evid. 403

In a footnote, the district court alternatively excluded

the three exhibits pursuant to Fed. R. Evid. 403, holding that the

three images were cumulative in that the government could rely on

the sixteen other images identified in its bill of particulars.

Although Rule 403 "enables a trial judge to exclude

needlessly cumulative evidence," it also "requires a balance of

probative value against the negative consequences of using a

particular piece of evidence." Sec'y of Labor v. DeSisto, 929 F.2d

789, 794-95 (1st Cir. 1991). We review the district court's

application of Rule 403 deferentially, but will overturn the

district court's ruling if there is an abuse of discretion. United

States v. Gilbert, 229 F.3d 15, 20-21 (1st Cir. 2000). "[A]n abuse

of discretion occurs 'when a relevant factor deserving of

significant weight is overlooked, or when an improper factor is

accorded significant weight, or when the court considers the

appropriate mix of factors, but commits a palpable error of

judgment in calibrating the decisional scales.'" Id. at 21

(quoting United States v. Roberts, 978 F.2d 17, 21 (1st Cir.

1992)).

Here, the district court abused its discretion by

failing, as required by Rule 403, to properly weigh its concerns

about cumulativeness against the probative value of the evidence.

-23-
In fact, the court did not even comment directly on the probative

value of the three exhibits; it merely quoted the conclusion of the

district court in United States v. Dean, 135 F. Supp. 2d 207 (D.

Me. 2001), that the "four nonessential, questionable photos [in

that case were] not particularly probative." Id. at 211. The

three images at issue in this case were the only ones for which the

government was prepared to introduce evidence that the girls

depicted therein were known child victims; to satisfy its burden to

show that the sixteen other images were of real minors, the

government would have to call on experts to testify.

Having failed to undertake properly the balancing

required by Rule 403, the district court abused its discretion in

excluding the images under that rule.

IV.

We reverse the district court's exclusion of the three

images; we hold they are admissible in evidence. The case is

remanded for further proceedings consistent with this opinion.

Concurrence follows.

-24-
 TORRUELLA, Circuit Judge, concurring in the judgment. I

agree with the majority that the district court erred in excluding

the three images from evidence. I write separately because I

disagree with the majority's analysis and also because the majority

does not give due weight to circuit precedent. I first present my

own analysis for excluding the three images and second note my

disagreements with the majority's analysis.

I. Exclusion of the Exhibits Under Fed. R. Evid. 104(a)

As ably described in the majority opinion, Congress has

made it a crime to possess visual depictions of minors engaging in

sexually explicit conduct. 18 U.S.C. § 2252(a)(4)(B). The term

"sexually explicit conduct" includes the "lascivious exhibition of

the genitals or pubic area." Id. § 2256(2)(A). Congress did not

further define the term "lascivious."

Finding that more guidance was necessary, the district

court in United States v. Dost enumerated a list of factors to

consider in determining whether a picture lasciviously exhibits the

genitals or pubic area. 636 F. Supp. 828, 832 (S.D. Cal. 1986),

aff'd sub nom. United States v. Wiegand, 812 F.2d 1239, 1244 (9th

Cir. 1987). Several circuits, including ours, have referred to the

Dost factors in considering whether images lasciviously exhibit the

genitals or pubic area. See United States v. Amirault, 173 F.3d

28, 31 (1st Cir. 1999) (citing cases). While we found that the

Dost factors were generally relevant and provided guidance, our

-25-
embrace of them was only equivocal. Id. at 32. We found that the

factors "are neither comprehensive nor necessarily applicable in

every situation" and that "there may be other factors that are

equally if not more important in determining whether a photograph

contains a lascivious exhibition." Id.

Before considering whether a reasonable jury could find

the three images lascivious, I wish to note several background

principles relevant to our analysis. First, I believe that an

important consideration, which was not directly addressed by Dost

nor by the district court, is whether the production or existence

of the picture is harmful to the depicted child. Clearly, the

protection of children from sexual exploitation is "a government

objective of surpassing importance." New York v. Ferber, 458 U.S.

747, 757 (1982). The victims of child pornography can be harmed

not only by the production of the pornography but also by the

continued existence of the pornography on the Internet. See id. at

759-60 & n.10. Furthermore, the existence of the pornography can

be harmful to the child even if its production was not (e.g., if

photographs were surreptitiously taken).

In passing and amending laws prohibiting child

pornography, Congress has clearly been concerned with protecting

children from harm. See Child Pornography Prevention Act of 1996,

Pub. L. No. 104-208, § 121, 110 Stat. 3009, 3009-26 (1996) (finding

that child pornography "is a form of sexual abuse which can result

-26-
in physical or psychological harm, or both, to the children

involved."); Child Abuse Victims' Rights Act of 1986, Pub. L. No.

99-591, 100 Stat. 3341-74 (1986) (recognizing "the physiological,

psychological, and emotional harm caused by the production,

distribution, and display of child pornography by strengthening

laws prescribing such activity"); Child Protection Act of 1984,

Pub. L. No. 98-292, 98 Stat. 204 (1984) (finding that "the use of

children as subjects of pornographic materials is harmful to the

physiological, emotional, and mental health of the individual child

and to society"). The government is prosecuting Defendant for

violating 18 U.S.C. § 2252. This statute is titled "Certain

activities relating to material involving the sexual exploitation

of minors" and is under the chapter titled "SEXUAL EXPLOITATION AND

OTHER ABUSE OF CHILDREN."

It is my belief that Congress intended that the perceived

harm to the depicted child by the production or existence of the

picture be an essential factor in determining whether a picture

lasciviously depicts the genitals or pubic area. While the Dost

factors address the harm to the child in an oblique manner, I

instead put the harm at the forefront of the analysis. See

Amirault, 173 F.3d at 32 (stating that the Dost factors "are

neither comprehensive nor necessarily applicable in every

situation"). To the extent that the Dost factors address the harm

to the child, they will be relevant to my analysis.

-27-
 The notion of what depictions are harmful to the child

cannot help but be informed by cultural norms. While the act of

exploiting a child is harmful by definition, certain displays of

nudity may be harmful solely because they are socially

unacceptable. These social norms are not universal. In some

cultures, nudity may be commonplace while, in others, the

appearance of a woman's eyes may be lascivious. See Ferber, 458

U.S. at 775 (O'Connor, J., concurring) (noting the relevance of

cultural norms to the harmfulness of a picture). These norms will

also evolve over time. See Clay Calvert, The Perplexing Problem of

Child Modeling Web Sites: Quasi-Child Pornography and Calls for New

Legislation, 40 Cal. W. L. Rev. 231, 253-54 (2004). In prohibiting

lascivious pictures of children, I believe Congress intended to

prohibit pictures where, given our cultural norms, the content is

harmful to the depicted child.

With these background principles in mind, I now address

the three images that are the subject of this appeal. First, the

age and developmental state of the depicted child is relevant to

the harm caused and thus the lasciviousness of the images. A

picture of a nude child is more likely to be harmful to the child

when the depicted child is an adolescent or prepubescent rather

than an infant. This is not because infants are beyond the

perverse interests of pedophiles, but because nude pictures of

infants are so widely approved in our culture that such pictures

-28-
are less likely to cause harm to the child. The government has

evidence that the depicted girls were ten to twelve years old at

the time the pictures were taken, and the pictures are consistent

with this evidence. Because a picture of a nude ten-to-twelve-

year-old child is not socially acceptable, an exhibition of the

child's genitals or pubic area is more likely to be harmful to the

child.

Second, the portrayal of the child must be considered in

determining whether an image is lascivious. Analyzing the content

of an image for sexually explicit content is a fractious issue. We

have previously held that "the statute requires more than mere

nudity" because otherwise "the requirement of 'lasciviousness'

would be superfluous." Amirault, 173 F.3d at 33. Yet, other

circuits have found that nudity is not required for a lascivious

exhibition. United States v. Horn, 187 F.3d 781, 789-90 (8th Cir.

1999); United States v. Knox, 32 F.3d 733, 745-46 (3d Cir. 1994).

In the three images, the girls are nude and their genitals are

clearly visible. The girls are posing for the camera, but the

poses are neutral in the sense that the images would be

unremarkable if the girls were clothed. The images are in the form

of a portrait as the girls' bodies are the focus of the image with

nothing of significance in the background. The images are jarring,

more because of the cultural taboo regarding nude pictures of

prepubescent girls than because of the specific portrayal of the

-29-
girls. In light of our cultural norms, the primary purpose of the

three images appears to be the display of the girls' genitals.

Regardless of whether or not the girls were exploited in the

production of these images, the girls are being sexually exploited

by the continued existence of these images.

I therefore believe that a reasonable jury could find

that the three images lasciviously display the girls' genitals or

pubic area in violation of 18 U.S.C. § 2252(a)(4)(B).

II. Disagreements with the Majority

A. The meaning of lascivious in the statute

Section I of the majority opinion exhorts that we should

not elaborate on the meaning of "lascivious" in 18 U.S.C.

§ 2256(2)(A)(v). The majority states the statute "needs no

adornment" and that "[f]urther definitional guides are not

required." I disagree with the majority's reasoning and believe

that we need to provide greater clarity as to Congress' intent in

prohibiting child pornography.

Although the constitutionality of the federal child

pornography statute is not an issue on appeal, the majority notes

that the federal statute meets the constitutional requirements set

out in Ferber, see 458 U.S. at 764-66, and that the statute is not

unconstitutionally overbroad, see id. at 766-74. Although these

legal conclusions are sound, the majority then applies them

unsoundly. In sum, the majority argues that, since the statute is

-30-
constitutional, courts must not provide further guidance as to

Congress' intent.18 I fail to see, however, how the satisfaction

of constitutional requirements precludes federal courts in

appropriate circumstances from saying precisely "what the law is."

Marbury v. Madison, 5 U.S. 137, 177 (1803). Courts routinely

interpret the meaning of constitutional statutes, and this being an

"appropriate circumstance," I see no reason to refrain from doing

so here.19

The meanings of lewd and lascivious in the obscenity and

child pornography statutes pose a difficult issue that requires

clarification. If the girls depicted in the three images were

eighteen years old and this case arose under an obscenity statute,

it is beyond dispute that no reasonable jury could find that the

images lewdly display the genitals.20 We are now proceeding under

18
The majority also notes that other circuits have described
lascivious as a "commonsensical term." While I agree that the
meaning of lascivious is, in large part, a matter of common sense,
I do not see how this precludes us from providing further guidance
as to Congress' intent. Further, I reiterate that several
circuits, including ours, have applied the Dost factors to
supplement common sense. See Amirault, 173 F.3d at 31.
19
Other considerations could apply if the appeal raised First
Amendment issues, but the only issue on appeal is whether the
district court erred in holding that no reasonable jury could find
that the three images are lascivious under the federal statute. In
discussing the standard of review, below, I explain in more detail
why there is no constitutional question present on appeal.
20
Because such images could not be obscene they could not be
found to lewdly display the genitals. Such images would clearly
satisfy the first prong of Miller in that they would appeal to the
"prurient interest" and would satisfy the third prong in that they

-31-
a child pornography statute and finding that a reasonable jury

could find that the images lasciviously depict the genitals of the

ten-to-twelve-year-old girls despite the fact that Supreme Court

precedent suggests that lewd and lascivious are synonymous. See

United States v. Excitement Video, Inc., 513 U.S. 64, 78-79 (1994).

Because these two outcomes do not blithely arise from the plain

text of the statutes, judicial elaboration of the meanings of

"lewd" and "lascivious" is necessary.

The majority's exhortation to eschew further elaboration

of the meaning of lascivious also runs counter to our binding

circuit precedent in Amirault. In Amirault, we directly and

clearly stated that district courts may use the Dost factors in

determining whether an image is lascivious. Section IV of the

Amirault opinion begins: "Using the Dost factors as guideposts, we

turn now to the photograph to analyze whether it contains a

lascivious exhibition of the genitals." Amirault, 173 F.3d at 33.

The Amirault court then considered each of the Dost factors in turn

and concluded that the image in question was not lascivious. Id.

at 33-35. Below, the district court applied the Dost factors in

would not have "serious literary, artistic, political, or
scientific value." Miller v. California, 413 U.S. 15, 24 (1973).
The images must then fail Miller's second prong and must not
"depict[] or describe[], in a patently offensive way, sexual
conduct specifically defined by the applicable state law." Id.
The Miller court included "lewd exhibition of the genitals" as an
example of a valid definition of patently offensive sexual conduct.
Id. at 25. It is thus clear that such images of eighteen-year-old
women could not be found to lewdly display the genitals.

-32-
the same way as we did in Amirault. The majority, in holding that

the district court inappropriately applied the Dost factors,21 goes

against Amirault and leaves First Circuit case law in a

contradictory state.

The majority attempts -- unconvincingly, in my view -- to

use procedural posture to distinguish the issue before us from

other First Circuit cases applying the Dost factors. See United

States v. Hilton, 257 F.3d 50, 57-58 (1st Cir. 2001) (applying the

Dost factors at a sentencing hearing); United States v. Brunette,

256 F.3d 14, 17-18 (1st Cir. 2001) (applying the Dost factors in

determining the validity of a search warrant); Amirault, 173 F.3d

at 30-31 (applying the Dost factors at a sentencing hearing). The

majority is correct in noting that no circuit court has approved

the use of the Dost factors to exclude evidence on the grounds that

no reasonable jury could find the images lascivious, but no circuit

court has disapproved of such use either. In my view, the Dost

factors are either relevant or they are not. If the Dost factors

are relevant in determining whether images are lascivious in the

context of a sentencing hearing, then they are also relevant in

determining whether a reasonable jury could find that images are

lascivious in a hearing to exclude evidence before trial. The

21
The majority states that the district court "gave the Dost
factors greater weight than warranted" and "accorded to them the
same status as the statutory definition itself." I do not see,
however, how the district court's application of the Dost factors
differed significantly from that of the Amirault court.

-33-
majority has not provided any persuasive rationale for such a

distinction.

B. The four corners rule in determining lasciviousness

In discussing the deficiencies of the Dost factors, the

majority criticized the district court for applying the "four

corners rule" whereby factors external to the actual image, such as

the circumstances surrounding the production of the image, are

excluded from the determination as to whether an image is

lascivious. I agree with the majority that Amirault did not adopt

such a rule, but I disagree with the majority's suggestion that the

jury could consider the circumstances of the production of the

image in determining lasciviousness.

First, the plain language of the statute is generally

consistent with the four corners rule. The statute prohibits the

knowing possession of five specifically defined types of visual

depictions. In determining whether the possession of an image

violates the statue, the fact finder must examine the content of

the image. The circumstances of the production of the image are

relevant to punishing the producer of the image but are of dubious

relevance in punishing the possessor of the image, who is likely

ignorant of the details of its production.

Second, the use of factors beyond the four corners of the

image in punishing the possessor of the image creates serious

constitutional concerns. The Court in Ferber made clear that

-34-
"criminal responsibility may not be imposed [for possession of

child pornography] without some element of scienter on the part of

the defendant." 458 U.S. at 765. Where the possessor of an image

is ignorant of the circumstances of the production of the image,

the scienter requirement may be violated.

While I would not categorically prohibit any evidence

beyond the four corners of the image, only in rare situations will

such evidence be relevant and not offend constitutional

requirements.

C. Description of the images

The majority's description of the three images

contradicts the description given by the district court. I would

adopt the district court's description of the images because it is

more accurate. According to the majority, a reasonable jury could

find that the images "focus[] or particularly draw[] attention to

the girls' . . . vaginas" and that "each girl was deliberately

posed to exhibit her pubic area." The majority further states that

the girls' postures are not "particularly natural or spontaneous"

and were not "comfortable." In contrast, the district court found

that the "genitals or pubic area [were not] the focal point" of the

images, that the "setting [was not] sexually suggestive at all,"

and that the poses were not "unnatural." My description of the

images, above, comports with the description given by the district

-35-
court and more accurately represents the images than does the

majority's description.

D. Standard of review

I agree with the majority that we review de novo the

district court's holding that no reasonable jury could find the

three images lascivious and also agree with the majority's

reasoning. The majority's justification for de novo review,

however, is not the justification proffered by the parties. Both

parties argued that the First Amendment demands heightened review

of the district court's holding. The majority did not consider

this rationale, and I write further to state explicitly that First

Amendment heightened review does not apply to this case. It is

illustrative to consider three scenarios: the district court holds

that (1) speech is unprotected; (2) speech is protected on

constitutional grounds; and (3) speech is protected on statutory

grounds.

(1) Speech is unprotected

It is well established that "in cases raising First

Amendment issues . . . an appellate court has an obligation to make

an independent examination of the whole record in order to make

sure that the judgment does not constitute a forbidden intrusion on

the field of free expression." Bose Corp. v. Consumers Union of

United States, Inc., 466 U.S. 485, 499 (1984) (emphasis added and

internal quotation marks omitted). The appellate court must "be

-36-
sure that the speech in question actually falls within the

unprotected category and . . . confine the perimeters of any

unprotected category within acceptably narrow limits . . . to

ensure that protected expression will not be inhibited." Id. at

505. There is no need to distinguish whether a district court held

speech unprotected on statutory or constitutional grounds, because

the former implies the latter.

(2) Speech is protected on constitutional grounds

The role of the appellate court is less clear where the

district court holds that speech is protected on constitutional

grounds. Some circuits have held that heightened First Amendment

review is only necessary to protect speech and does not apply where

the speech has already been protected. See Multimedia Publishing

Co. v. Greenville-Spartanburg Airport Dist., 991 F.2d 154, 160 (4th

Cir. 1993); Daily Herald Co. v. Munro, 838 F.2d 380, 383 (9th Cir.

1988); Planned Parenthood Association/Chicago Area v. Chicago

Transit Authority, 767 F.2d 1225, 1228-29 (7th Cir. 1985). Other

circuits have applied heightened review to all constitutional

holdings defining the perimeters of unprotected categories of

speech, regardless of whether the lower court held that speech was

protected or unprotected. See Don's Porta Signs, Inc. v. City of

Clearwater, 829 F.2d 1051, 1053 n.9 (11th Cir. 1987); Lindsay v.

San Antonio, 821 F.2d 1103, 1107-08 (5th Cir. 1987). We have yet

-37-
to address the issue, and we need not address it now since the

court's holding protecting speech was based on statutory grounds.

(3) Speech is protected on statutory grounds

The First Amendment determines the contours of the

unprotected categories of speech and proscribes Congress from

prohibiting protected speech. Congress, however, need not prohibit

unprotected speech to the extent allowed by the constitution or

even prohibit any unprotected speech at all. The extent of speech

prohibited by a constitutional statute must be contained within the

contours of an unprotected category. Speech may thus fall into

three categories: (a) protected by the constitution, (b)

unprotected by the constitution and not prohibited by statute, and

(c) unprotected by the constitution and prohibited by statute.

Where a district court makes a purely statutory holding

that specific speech is not prohibited by statute, the district

court is holding only that Congress has chosen not to prohibit the

speech in question. In such a situation, the district court is not

deciding whether or not Congress could prohibit the speech in

question, only that it chose not to. This purely statutory holding

clearly has no bearing on the contours of unprotected categories of

speech and thus no constitutional significance that would require

heightened review.

Below, the district court's holding that no reasonable

jury could find the three images lascivious was a purely statutory

-38-
holding. The district court did not consider the contours of the

unprotected category of child pornography and thus did not consider

whether the three images were unprotected speech. Thus, the

district court held only that no reasonable jury could find that

the three images violated the child pornography statute passed by

Congress. Since no constitutional issue is present, First

Amendment heightened review does not apply.22

Considering the above, I respectfully disagree with the

majority's reasoning in this case but join in the reversal of the

district court's order excluding the three images from evidence.

22
Moreover, it is not clear whether heightened First Amendment
scrutiny applies at all to interlocutory appeals. See Seattle
Times Co. v. Rhinehart, 467 U.S. 20, 36 & n.23 (1984). In Seattle
Times, the Supreme Court considered a First Amendment claim arising
from a protective order issued during the discovery process and
expressly refused to apply a heightened standard of review. Id. at
36. The Court was wary that heightened review "would necessitate
burdensome evidentiary findings and could lead to time-consuming
interlocutory appeals." Id. at 36 n.23. The perimeters of
protected categories of speech are defined by final judgments but
not by interlocutory decisions such as discovery orders and
evidentiary rulings. See Lee v. DOJ, 413 F.3d 53, 58 (D.C. Cir.
2005).

-39-