Aggravated Felonies

(B)  Constitutionality.  Counsel should investigate whether the particular statute defining the child pornography offense is unconstitutional, either on its face or as applied.  In Ashcroft v. Free Speech Coalition,[86] for example, the Supreme Court held that a portion of the Child Pornography Prevention Act of 1996 violated the First Amendment right to free speech in defining child pornography to include “virtual pornography,” not produced using actual children.[87]  Therefore any conviction under 18 U.S.C. § 2252A based upon such materials is also unconstitutional.  

[86] Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389 (2002).

[87] 18 U.S.C. § § 2256(8)(B), (D).