Brasse v. State

Douglas A. Brasse v. State of Maryland., No. 1070, September Term, 2023. Opinion by
Graeff, J.

FIRST AMENDMENT—FACIAL OVERBREADTH—CHILD PORNOGRAPHY

Md. Code Ann., Crim. Law (“CR”) § 11-208 (2021 Repl. Vol.) prohibits “knowingly
possess[ing]” a “film, videotape, photograph, or other visual representation” that shows an
“actual child or a computer-generated image that is indistinguishable from an actual and
identifiable child under the age of 16 years” engaging in certain types of sexual behavior
or appearing in a state of sexual excitement. The statute provides that the term
“indistinguishable from an actual and identifiable child” means that “an ordinary person
would conclude that the image is of an actual and identifiable minor.” § 11-208(a)(1). The
statute “includes a computer-generated image that has been created, adapted, or modified
to appear as an actual and identifiable child,” § 11-208(a)(2), and it “does not include
images or items depicting minors that are (i) drawings; (ii) cartoons; (iii) sculptures; or (iv)
paintings.” § 11-208(a)(3).

There is no dispute that child pornography produced with an actual minor is a category of
speech that is not protected under the First Amendment. Appellant argues, however, that
CR § 11-208 is overbroad and unconstitutional because it encompasses pornography that
was created without involving any real child. Based on the plain language of CR § 11-208
and the legislative history, however, the statute was drafted to exclude images that did not
implicate real children; it prohibits only the possession of pornography depicting an actual
child or a computer-generated image that is indistinguishable from an actual and
identifiable child under the age of 16 years old. This includes morphed child pornography,
virtual images altering innocent pictures of real children to appear to be engaged in sexual
activity, and “deepfakes,” which use artificial intelligence to generate photorealistic virtual
images. To the extent that the images use an actual child’s face and are indistinguishable
from an actual and identifiable child, they subject an actual child to reputational and
emotional harm, and therefore, are not protected speech under the First Amendment.
Appellant failed to show that CR § 11-208 is facially overbroad, in violation of the First
Amendment right to freedom of speech.
Circuit Court for Howard County
Case No. C-13-CR-22-000125

REPORTED

IN THE APPELLATE COURT

OF MARYLAND

No. 1070

September Term, 2023

______________________________________

DOUGLAS A. BRASSE

v.

STATE OF MARYLAND

______________________________________

Graeff,
Leahy,
Kenney, James A., III
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Graeff, J.
______________________________________

Filed: March 27, 2025

Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.

2025.03.27
14:58:53 -04'00'
Gregory Hilton, Clerk
On February 28, 2023, in the Circuit Court for Howard County, Douglas Brasse,

appellant, entered a plea of not guilty, based on an agreed statement of facts, to one count

of possession of child pornography. The court sentenced appellant to five years’

incarceration, all but six months suspended, and five years’ probation.

On appeal, appellant presents the following question for this Court’s review, which

we have rephrased slightly, as follows:

Did the circuit court err in denying appellant’s motion to dismiss the
indictment on the ground that Md. Code Ann., Crim. Law (“CR”)
§ 11-208 (2021 Repl. Vol.) is facially unconstitutional?

For the reasons set forth below, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged appellant with five counts of possessing a visual representation

of a child under the age of 16 engaged in sexual conduct. Each count related to a different

video. The videos depicted the following: (1) “a female child approximately 2–4 being

vaginally penetrated by an adult male”; (2) “a young female about 2–4 years old

performing fellatio on an adult male penis”; (3) “a young male, aged about 8–12

performing fellatio on an adult male”; (4) “a young female about 6–9 years old performing

fellatio on an adult male penis”; and (5) “a young female about 8–10 years old [lying] nude

on her back while an adult male is engaging in vaginal sex with her.” None of the charges

alleged that appellant possessed computer-generated pornography.

Appellant filed a Motion to Dismiss for Prosecution Based on Facially

Unconstitutional Statute, arguing that CR § 11-208 violates the First Amendment to the

United States Constitution. Appellant noted that, in Ashcroft v. Free Speech Coalition, 535
U.S. 234 (2002), the United States Supreme Court held that a provision of the Child

Pornography Prevention Act of 1996 (“CPPA”), 18 U.S.C § 2256(8)(B), was

unconstitutional because it criminalized computer-generated images of child pornography,

even though “no actual children were harmed in the production of the photo.” Appellant

argued that CR § 11-208 similarly is unconstitutional.

The State filed an opposition to appellant’s motion, arguing that: (1) the minors

depicted in the videos at issue were “live” children, not computer-generated children; and

(2) the statute was constitutional because the plain language of CR § 11-208 prohibited

only computer generated-images that portrayed “a real child,” given the statutory language

that the image be indistinguishable from “an actual and identifiable child.” The State

asserted that the General Assembly was aware of the ruling in Free Speech Coalition when

it enacted CR § 11-208, and the language “‘actual and identifiable child’ was intentionally

chosen to be compl[ia]nt with the Constitution.”

On June 2, 2022, the court held a motions hearing. Counsel for appellant asserted

that there are three types of child pornography: (1) actual images “of a real child in real

time”; (2) computer-generated pornography, where “a computer draws an image” that

depicts “no real humans”; and (3) morphed images, “where the real image of a real head

of an actual child is photo-shopped onto an adult, or a nude child’s body.” Counsel argued

that, although “actual pictures of actual children” can and should be criminalized, purely

computer-generated images are protected speech. Counsel contended that the language in

CR § 11-208 could encompass both purely computer-generated images and morphed

2
images, and because CR § 11-208 criminalized the possession of “purely computer-

generated images” that harmed “no actual person,” it was unconstitutional.

At the conclusion of the hearing, the court denied the motion. It stated that the

statute was revised with language that comported with Free Speech Coalition, and it was

constitutional.

On February 28, 2023, appellant entered a plea of not guilty, based on an agreed

statement of facts, to Count One of the indictment. The court found appellant guilty with

respect to Count One, possession of child pornography. The State nolle prossed the

remaining counts, and the court sentenced appellant.

This appeal followed.

STANDARD OF REVIEW

“[T]he standard of review of the grant or denial of a motion to dismiss is whether

the trial court was legally correct.” Lipp v. State, 246 Md. App. 105, 110 (2020) (quoting

Howard v. Crumlin, 239 Md. App. 515, 521 (2018)). The determination of the

constitutionality of a statute is a question of law. Martinez ex rel. Fielding v. The John

Hopkins Hosp., 212 Md. App. 634, 656, cert. denied, 435 Md. 268 (2013). Accordingly,

we review the issue presented de novo. Id.

DISCUSSION

Appellant contends that CR § 11-208, which prohibits possession of a “computer-

generated image that is indistinguishable from an actual child,” is facially unconstitutional

because it “bans [pornographic] material that does not involve or harm any real child,” and

3
therefore, it is overbroad in violation of the First Amendment right to freedom of speech.

Accordingly, appellant asserts that the circuit court erred in denying his motion to dismiss.

The State contends that the circuit court properly denied appellant’s motion to

dismiss. It argues that CR § 11-208 is constitutional because it prohibits “computer-

generated imagery of an ‘actual and identifiable child’—i.e., a child who actually exists

and whose identity can be determined.” Consequently, the statute “prevents harm only to

real children and does not unlawfully restrict protected speech.”

I.

CR § 11-208

CR § 11-208 provides, 1 in relevant part, as follows:

(b)(1) A person may not knowingly possess and intentionally retain a film,
videotape, photograph, or other visual representation showing an actual child
or a computer-generated image that is indistinguishable from an actual and
identifiable child under the age of 16 years:

(i) engaged as a subject of sadomasochistic abuse;

(ii) engaged in sexual conduct; or

(iii) in a state of sexual excitement.

The statute provides the following definitions:

(a)(1) In this section, “indistinguishable from an actual and identifiable
child” means an ordinary person would conclude that the image is of an
actual and identifiable minor.

1
We cite to the statute as it currently exists. There were minor changes to the
statute in 2023, after appellant was convicted, but the changes related to organization and
not substance.
4
(2) “Indistinguishable from an actual and identifiable child” includes a
computer-generated image that has been created, adapted, or modified to
appear as an actual and identifiable child.

(3) “Indistinguishable from an actual and identifiable child” does not
include images or items depicting minors that are:

(i) drawings;

(ii) cartoons;

(iii) sculptures; or

(iv) paintings.

The statute contains an exemption and an affirmative defense. CR § 11-208(d)

provides that the statute does not apply to a parent who possesses a visual representation

of the “parent’s own child in the nude unless the visual representations show the child

engaged: (1) as a subject of sadomasochistic abuse; or (2) in sexual conduct and in a state

of sexual excitement.” Section 11-208(e) provides that it is “an affirmative defense to a

charge of violating this section that the person promptly and in good faith: (1) took

reasonable steps to destroy each visual representation; or (2) reported the matter to a law

enforcement agency.” 2

2
Several bills were introduced in 2025 with respect to Md. Code Ann., Crim. Law
(“CR”) § 11-208 (2021 Repl. Vol.) and child pornography generally, but they are not
relevant to the issue presented in this appeal. On January 8, 2025, House Bill 5 was
introduced. H.B. 5, 447th Gen. Assemb., Reg. Sess. (Md. 2025). The proposed law
amends CR § 11-208(a), to define a “computer-generated image” as including “images
created through the use of artificial intelligence software.” Id. On January 16, 2025, and
January 23, 2025, H.B. 364 and S.B. 545 were introduced, proposing a new section
11-208.2(B)(1), which refers to a violation of § 11-207 and § 11-208 with 100 or more
images. H.B. 364, 447th Gen. Assemb., Reg. Sess. (Md. 2025); S.B. 545, 447th Gen.
Assemb., Reg. Sess. (Md. 2025).
5
II.

Free Speech Rights and Child Pornography Generally

The First Amendment to the United States Constitution, applicable to the states

through the Fourteenth Amendment, prohibits Congress from making any law “abridging

the freedom of speech.” Virginia v. Black, 538 U.S. 343, 358 (2003). 3 Accord Lipp, 246

Md. App. at 111. “[A] law imposing criminal penalties on protected speech” constitutes

suppression of speech. Free Speech Coalition, 535 U.S. at 244.

The right to freedom of speech, however, is “not absolute at all times and under all

circumstances.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942); Black, 538 U.S.

at 359. The First Amendment “is not an impenetrable shield which protects any speech or

conduct, whatsoever, with disregard to its harm and effect.” Galloway v. State, 365 Md.

599, 646 (2001) (quoting Kansas v. Whitesell, 13 P.3d 887, 900 (2000)), cert. denied, 535

U.S. 990 (2002). “[F]reedom of speech has its limits.” Free Speech Coalition, 535 U.S.

at 245. For content-based laws impacting speech to be upheld, however, strict scrutiny

review requires a court to determine that the restriction on speech is justified because the

restrictions “are narrowly tailored to serve compelling state interests.” Reed v. Town of

Gilbert, 576 U.S. 155, 163-64 (2015).

3
The Maryland Constitution provides, in relevant part, “that every citizen of the
State ought to be allowed to speak, write and publish his sentiments on all subjects, being
responsible for the abuse of that privilege.” Md. Const., Decl. of Rts., art. 40. Appellant
relies solely on the First Amendment to the United States Constitution in arguing that
CR § 11-208 is unconstitutional.
6
The United States Supreme Court has held that content-based restrictions on certain

categories of speech satisfy the strict scrutiny standard. For example, defamation,

incitement, and obscenity do not constitute protected speech. Free Speech Coalition, 535

U.S. at 246. Additionally, a state may ban “fighting words,” i.e., “conduct that itself inflicts

injury or tends to incite immediate violence.” R.A.V. v. City of St. Paul, 505 U.S. 377, 380

(1992) (quoting In re Welfare of R.A.V., 464 N.W.2d 507, 510 (Minn. 1991)); Lipp, 246

Md. App. at 112.

In 1982, the Supreme Court held that child pornography produced with an actual

minor is another category of speech that is not protected under the First Amendment. New

York v. Ferber, 458 U.S. 747, 757, 764 (1982). In upholding the statute and rejecting a

First Amendment challenge, the Court noted that the prohibition against legally obscene

materials did not provide “a satisfactory solution to the child pornography problem,” and

the States were “entitled to greater leeway in the regulation of pornographic depictions of

children.” Id. at 756, 761. 4 The Court listed several reasons in support of its conclusion.

Initially, it noted that the State’s interest in “‘safeguarding the physical and psychological

4
In Miller v. California, 413 U.S. 15, 16, 24 (1973), the United States Supreme
Court set forth a test to determine what constituted unprotected obscenity, including that
the material be offensive “in light of community standards,” but this test “did not ‘make
obscenity readily identifiable,’ leaving its ‘prosecution difficult and fraught with
constitutional challenges.’” United States v. Mecham, 950 F.3d 257, 261 (5th Cir.)
(quoting James H. Jeffries IV, Note, Seizing Obscenity: New York v. P.J. Video, Inc. and
the Waning of Presumptive Protection, 65 N.C. L. Rev. 799, 804 (1987)), cert. denied, 141
S. Ct. 139 (2020). As the Supreme Court of Maryland recently explained, adult
pornography can be regulated only if it meets the definition of obscenity, but pornography
showing minors can be proscribed, even if it is not obscene, given the State’s interest in
protecting children from exploitation. Turenne v. State, 488 Md. 239, 277 (2024).
7
well-being of a minor’ is ‘compelling,’” id. at 756-57 (quoting Globe Newspaper Co. v.

Superior Ct., 457 U.S. 596, 607 (1982)), and “[t]he prevention of sexual exploitation and

abuse of children constitutes a government objective of surpassing importance.” Id. at 757.

Moreover, the Court noted that child pornography is “intrinsically related to the sexual

abuse of children,” that the “use of children as subjects of pornographic materials is

harmful to the physiological, emotional, and mental health of the child,” and when child

pornography is distributed, “the materials produced are a permanent record of the

children’s participation and the harm to the child is exacerbated by their circulation.” Id.

at 758-59. Noting that the value of such images was “exceedingly modest, if not de

minimis,” the Court held that the evil of child pornography “so overwhelmingly outweighs

the expressive interests, if any,” in this form of communication that it was entitled to no

constitutional protection and “no process of case-by-case adjudication is required” to

restrict it. Id. at 762-64.

The Court’s decision in Ferber involved a statute criminalizing distribution of child

pornography. Ferber, 458 U.S. at 749-51. In Osborne v. Ohio, 495 U.S. 103, 110-11

(1990), the Court extended its holding, ruling that states also may ban possession of child

pornography. Although it had held in Stanley v. Georgia, 394 U.S. 557, 568 (1969), that

the First Amendment prohibited criminalizing the possession of obscene material in the

privacy of a person’s home, the Court determined that the possession of child pornography

was different because the State had a compelling interest in “safeguarding the physical and

psychological well-being of a minor.” Osborne, 495 U.S. at 109 (quoting Ferber, 458 U.S.

8
at 756-57). The Court stated that criminalizing possession could limit reputational damage

to a child because it encourages the destruction of the images. Id. at 111.

In 1996, Congress passed the CPPA, which extended “the federal prohibition

against child pornography to sexually explicit images that appear to depict minors but were

produced without using any real children.” Free Speech Coalition, 535 U.S. at 239. The

statute defined “child pornography” as:

[A]ny visual depiction, including any photograph, film, video, picture, or
computer or computer-generated image or picture, whether made or
produced by electronic, mechanical, or other means, of sexually explicit
conduct, where—

(B) such visual depiction is, or appears to be, of a minor engaging in
sexually explicit conduct;

(C) such visual depiction has been created, adapted, or modified to
appear that an identifiable minor is engaging in sexually explicit
conduct; or

(D) such visual depiction is 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. § 2256(8)(B), (C), (D) (1996). 5

5
The statute defined an “identifiable minor” as:

(A) mean[ing] a person—

(i)(I) who was a minor at the time the visual depiction was created,
adapted, or modified; or

(II) whose image as a minor was used in creating, adapting, or
modifying the visual depiction; and

9
In Free Speech Coalition, 535 U.S. at 241, the Supreme Court addressed the

constitutionality of the statute. It began by noting that, assuming that “[p]ictures of young

children engaged in certain acts might be obscene,” the statute sought “to reach beyond

obscenity.” Id. at 240. The Court stated that it needed to address whether the statute was

unconstitutional where it proscribed speech that was neither obscene nor “child

pornography under Ferber.” Id. Specifically, it addressed whether subsections (B) and

(D) of § 2256(8) were overbroad. Id. at 239-58.

“The Constitution gives significant protection from overbroad laws that chill speech

within the First Amendment’s vast and privileged sphere.” Id. at 244. Under this principle,

known as the facial overbreadth doctrine, a statute is “unconstitutional on its face if it

prohibits a substantial amount of protected expression.” Id.

The Court in Free Speech Coalition first addressed § 2256(8)(B), which addressed

a visual depiction that “appears to be” of a minor engaging in sexually explicit conduct. It

held that this provision swept too broadly, noting that the prohibition “embrace[d] a

Renaissance painting depicting a scene from classical mythology,” as well as a movie

filmed with adults pretending to be minors. 535 U.S. at 241. The statute encompassed

“virtual child pornography” and prohibited images made by using computer imaging that

created “realistic images of children who do not exist.” Id. at 240-41. The Court stated

(ii) who is recognizable as an actual person by the person’s face,
likeness, or other distinguishing characteristic, such as a unique
birthmark or other recognizable feature; and shall not be construed to
require proof of the actual identity of the identifiable minor.

18 U.S.C. § 2256(9).
10
that virtual child pornography was “not ‘intrinsically related’ to the sexual abuse of

children.” Id. at 250. Unlike real child pornography, which caused “injury to the child’s

reputation and emotional well-being,” no child was involved in the creation of virtual child

pornography. Id. at 249. The Court stated that the CPPA prohibited speech that

“record[ed] no crime and create[d] no victims by its production.” Id. at 250.

The Court ultimately concluded that Section 2256(8)(B) covered materials that were

neither obscene nor recognized in Ferber, and the Government had not shown support for

the law, which covered a substantial amount of lawful speech. Id. at 256. It held that the

statute, therefore, was overbroad and unconstitutional. Id.

The Court additionally held that § 2256(8)(D), which prohibited sexually explicit

materials that “conve[y] the impression” that they depict minors, also prohibited a

substantial amount of protected speech. Id. at 257 (alteration in original). It noted that a

visual depiction that contained no minors engaging in sexually explicit conduct could be

treated as child pornography if it conveyed the impression that such conduct would be

found in the depiction. Id. For example, it prohibited a “sexually explicit film containing

no youthful actors, just because it is placed in a box suggesting a prohibited movie.” Id. at

258. The Court stated that the First Amendment “requires a more precise restriction,” and

therefore, the provision was “substantially overbroad and in violation of the First

Amendment.” Id.

The Court noted that § 2256(8)(C), which prohibited an image that had been

“created, adapted, or modified to appear that an identifiable minor is engaging in sexually

explicit conduct,” involved the alteration of pictures of real children so that they appeared

11
to be engaging in sexual conduct. Id. at 242. The Court stated that, “[a]lthough morphed

images may fall within the definition of virtual child pornography, they implicate the

interests of real children and are in that sense closer to the images in Ferber.” Id. Because

that provision was not challenged, however, the Court did not address it. Id.

Justice O’Connor wrote a separate opinion, concurring in part and dissenting in part.

Id. at 260-67 (O’Connor, J., concurring in part, dissenting in part). She agreed with the

Court’s conclusion that the First Amendment required that § 2256(8)(D) be struck down,

but she disagreed with its decision to strike down § 2256(8)(B) “in its entirety.” Id. at 261. 6

She noted that the phrase in § 2256(8)(B) “appears to be … of a minor” “cover[ed] two

categories of speech: pornographic images of adults that look like children (‘youthful adult

pornography’) and pornographic images of children created wholly on a computer, without

using any actual children (‘virtual child pornography’).” Id. She agreed that a ban on

youthful adult pornography was overbroad. In her view, however, respondents had failed

to show that the ban on virtual child pornography was overbroad. Id.

Justice O’Connor noted the Government’s compelling interest in protecting

children, and she concluded that those interests supported a ban on virtual child

pornography, noting that such images can whet the appetites of child molesters or be used

to seduce actual children. Id. at 263. She agreed with respondents, however, who argued

6
Chief Justice Rehnquist and Justice Scalia joined in Part II of Justice O’Connor’s
opinion, the dissent, which opined that the defendant failed to show that the prohibition of
virtual child pornography in 18 U.S.C. § 2256(8)(B) was overbroad. Ashcroft v. Free
Speech Coalition, 535 U.S. 234, 260, 263 (2002) (O’Connor, J., concurring in part,
dissenting in part).
12
that the language in the statute was not narrowly tailored to serve the Government’s

interest, noting that the statute captured cartoon sketches that could not be used to seduce

children. Id. at 264. Justice O’Connor concluded that a “better interpretation” of the phrase

“appears to be” was “virtually indistinguishable from,” an interpretation that would not

apply to sketches. Id. She stated that this “narrowing interpretation avoids constitutional

problems such as overbreadth and lack of narrow tailoring.” Id. at 265.

Justice O’Connor noted that a litigant challenging a statute bore “the heavy burden

of demonstrating that the regulation forbids a substantial amount of valuable or harmless

speech,” which respondents had failed to do. Id. Respondents had provided no examples

of other materials that were “wholly computer generated and contain images that ‘appea[r]

to be ... of minors’ engaging in indecent conduct, but that have serious value or do not

facilitate child abuse.” Id. at 265-66 (alteration in original). Accordingly, she concluded

that their overbreadth challenge failed. Id. at 266.

In 2003, Congress amended 18 U.S.C. § 2256(8)(B) to address the Court’s holding

in Free Speech Coalition. Prosecutorial Remedies and Other Tools to end the Exploitation

of Children Today Act of 2003, Pub. L. No. 108-21, 117 Stat. 650 (2003) (the “PROTECT

ACT”). Congress eliminated the phrase “appears to be of a minor” and added the following

language, noted in italics:

(8) “child pornography” means any visual depiction, including any
photograph, film, video, picture, or computer or computer-generated image
or picture, whether made or produced by electronic, mechanical, or other
means, of sexually explicit conduct, where-

13
(B) such visual depiction is a digital image, computer image, or
computer-generated image that is, or is indistinguishable from,
that of a minor engaging in sexually explicit conduct.[7]

18 U.S.C. § 2256(8)(B) (emphasis added). Additionally, Congress added the following

definition to 18 U.S.C. § 2256:

(11) the term “indistinguishable” used with respect to a depiction, means
virtually indistinguishable, in that the depiction is such that an ordinary
person viewing the depiction would conclude that the depiction is of an
actual minor engaged in sexually explicit conduct. This definition does not
apply to depictions that are drawings, cartoons, sculptures, or paintings
depicting minors or adults.

The relevant language is still in effect today. See 18 U.S.C.A. §§ 2256(8)-(11) (Westlaw

through Pub. L. 115-299) (last visited February 21, 2025).

Appellant’s challenge here is that CR § 11-208 is unconstitutional because it

encompasses pornography that was created without involving any real child. He argues

that the statute is overbroad.

III.

Facial Overbreadth

We note, initially, that appellant’s conviction involved a video of sexual activity

involving a real child, not a virtual or fictional child. Accordingly, the statute, which

prohibits possession of a videotape showing an actual child, CR § 11-208(b)(1), can be

lawfully applied to appellant. His challenge, therefore, must be considered under the

confines of the facial overbreadth doctrine. See State v. Fingal, 666 N.W.2d 420, 423

7
The language in subsection (C), which included a visual depiction that was
“created, adapted, or modified to appear that an identifiable minor is engaging in sexually
explicit conduct,” remains the same. 18 U.S.C. § 2256(8)(C).
14
(Minn. Ct. App. 2003) (“As a threshold matter, we note that, because appellants stipulated

to possessing materials depicting sexual performances by real, identifiable children, their

challenge to the statute as overbroad in allegedly prohibiting depictions of other sexual

performances must be made under the facial overbreadth doctrine.”).

“The traditional rule is that ‘a person to whom a statute may constitutionally be

applied may not challenge that statute on the ground that it may conceivably be applied

unconstitutionally to others in situations not before the Court.’” Los Angeles Police Dep’t

v. United Reporting Pub. Corp., 528 U.S. 32, 38 (1999) (quoting Ferber, 458 U.S. at 767).

The exception to this traditional rule is a First Amendment challenge based on First

Amendment overbreadth. Id. As the United States Supreme Court has explained: “[T]he

transcendent value to all society of constitutionally protected expression is deemed to

justify allowing ‘attacks on overly broad statutes with no requirement that the person

making the attack demonstrate that his own conduct could not be regulated by a statute

drawn with the requisite narrow specificity.’” Id. (quoting Gooding v. Wilson, 405 U.S.

518, 520-21 (1972)). In essence, “the overbreadth doctrine instructs a court to hold a statute

facially unconstitutional even though it has lawful applications, and even at the behest of

someone to whom the statute can be lawfully applied.” United States v. Hansen, 599 U.S.

762, 769 (2023).

To justify facial invalidation for overbreadth, “the overbreadth of a statute must not

only be real, but substantial as well, judged in relation to the statute’s plainly legitimate

sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). That “one can conceive of

some impermissible applications of a statute is not sufficient to render it susceptible to an

15
overbreadth challenge.” Members of City Council v. Taxpayers for Vincent, 466 U.S. 789,

800 (1984). Rather, to succeed on a facial overbreadth claim, the challenger must

demonstrate “that the statute ‘prohibits a substantial amount of protected speech’ relative

to its ‘plainly legitimate sweep.’” Hansen, 599 U.S. at 770 (quoting United States v.

Williams, 553 U.S. 285, 292 (2008)). If the challenger makes this showing, “then society’s

interest in free expression outweighs its interest in the statute’s lawful applications, and a

court will hold the law facially invalid.” Id. “To justify facial invalidation, a law’s

unconstitutional applications must be realistic, not fanciful, and their number must be

substantially disproportionate to the statute’s lawful sweep.” Id. The overbreadth doctrine

is “strong medicine” and should be “employed . . . only as a last resort.” Broadrick, 413

U.S. at 613.

When determining the constitutionality of a statute, we presume that the statute is

valid. Galloway, 365 Md. at 610. “The party attacking the statute has the burden of

establishing its unconstitutionality.” Id. at 611. “If, however, a statute violates a

‘mandatory provision’ of the Constitution, ‘we are required to declare such an act

unconstitutional and void.’” Id. (quoting Beauchamp v. Somerset Cnty., 256 Md. 541, 547

(1970)). We can avoid invalidating laws, however, by construing a statute narrowly to

avoid overbreadth. Osborne, 495 U.S. at 119 (noting that it had “long respected” state

courts’ “ability to narrow state statutes so as to limit the statute’s scope to unprotected

conduct”); Broadrick, 413 U.S. at 613 (“Facial overbreadth has not been invoked when a

limiting construction has been or could be placed on the challenged statute.”); Galloway,

16
365 Md. at 619-27 (giving harassment statute a narrowing construction by reading into it a

limiting “reasonable person” standard saved the statute from “constitutional demise”).

“The first step in overbreadth analysis is to construe the challenged statute; it is

impossible to determine whether a statute reaches too far without first knowing what the

statute covers.” Williams, 553 U.S. at 293. 8 The second step is to determine whether the

statute, as construed, prohibits a substantial amount of protected speech “relative to what

the statute may constitutionally prohibit.” McCree v. State, 441 Md. 4, 16 (2014). We turn

to that analysis.

IV.

Constitutionality of CR § 11-208

In the first step of the analysis, construing what CR § 11-208 covers, we note that

“[t]he cardinal rule of statutory interpretation is to ascertain and effectuate the real and

actual intent of the Legislature.” State v. Brooke, 262 Md. App. 207, 211 (2024) (quoting

State v. Bey, 452 Md. 255, 265 (2017)). “The process begins with the plain meaning of the

statutory language ‘viewed within the context of the statutory scheme to which it belongs,

considering the purpose, aim, or policy of the Legislature in enacting the statute.’” Id. at

211-12 (quoting Bey, 452 Md. at 266). “The interpretive process ordinarily ends if the

statutory language is unambiguous and consistent with the statute’s apparent purpose.” Id.

8
In United States v. Williams, 553 U.S. 285, 293 (2008), the Court addressed 18
U.S.C. § 2252A(a)(3)(B), the statute that was enacted to replace § 2256(8)(D) after the
Free Speech Coalition case. This statute prohibits advertising or soliciting material that
reflects the belief, or intends to cause another to believe, that the material is obscene child
pornography involving no actual minor. Id. The Court held that the statute was not
overbroad. Id. at 299-303.
17
Nevertheless, we sometimes look to legislative history to confirm our analysis regarding

legislative intent. State v. Williams, 255 Md. App. 420, 440 (2022); Chesapeake

Amusements, Inc. v. Riddle, 363 Md. 16, 29 (2001).

We begin with the words of the statute, which prohibit “knowingly possess[ing]” a

“film, videotape, photograph, or other visual representation” that shows an “actual child or

a computer-generated image that is indistinguishable from an actual and identifiable child”

engaging in certain types of sexual behavior or appearing in a state of sexual excitement.

CR § 11-208(b)(1). The statute provides that the term “indistinguishable from an actual

and identifiable child” means that “an ordinary person would conclude that the image is of

an actual and identifiable minor.” § 11-208(a)(1). It provides that the statute “includes a

computer-generated image that has been created, adapted, or modified to appear as an

actual and identifiable child,” § 11-208(a)(2), and it “does not include images or items

depicting minors that are (i) drawings; (ii) cartoons; (iii) sculptures; or (iv) paintings.”

§ 11-208(a)(3).

We agree with the State that the plain meaning of the statutory terms, prohibiting an

image that is indistinguishable from an “actual and identifiable child,” requires an image

that depicts a real child whose identity can be ascertained. The statute specifically excludes

images that are drawings, cartoons, sculptures, or paintings. § 11-208(a)(3). Maryland’s

prohibition, therefore, is distinguishable from the federal prohibition struck down in Free

Speech Coalition, which criminalized pornography that merely “appears to be,” but does

not, depict an actual minor.

18
The legislative history confirms our analysis. Possession of child pornography was

made illegal in 1992. Payne v. State, 243 Md. App. 465, 491 (2019). The language at

issue in this appeal was enacted in 2019. At that time, the General Assembly expanded the

prohibition against possession of child pornography under CR § 11-208 “to include

computer-generated images that are indistinguishable from an actual child under the age of

sixteen.” In re S.K., 466 Md. 31, 56 n.22 (2019). It also added the definition of

“indistinguishable from an actual and identifiable child,” set forth supra. S.B. 736, 439th

Gen. Assemb., Reg. Sess. (Md. 2019); H.B. 1027, 439th Gen. Assemb., Reg. Sess. (Md.

2019).

The “computer-generated images” language was “in response to the developing

technology” that “permitted pornographers to utilize computers to create images and videos

in which the naked eye is unable to identify that the image is not that of an actual child.”

In re S.K., 466 Md. at 56 n.22. “The stated purpose of the amendments was for ‘prohibiting

a person from knowingly possessing and intentionally retaining a certain representation

showing a computer-generated image that is indistinguishable from an actual and

identifiable child under a certain age portrayed in a certain manner.’” Payne, 243 Md.

App. at 495 (quoting 2019 Md. Laws, chs. 325, 326). One “aim of this legislation was a

technology dubbed ‘deepfakes[,]’ [which] are ‘videos that have been manipulated to make

it look like the subject is realistically saying or doing something they didn’t.’” In re S.K.,

466 Md. at 56 n.22 (quoting Benjamin Goggin, From porn to ‘Game of Thrones’: How

deepfakes and realistic-looking fake videos hit it big, Bus. Insider (Jun. 23, 2019),

https://www.businessinsider.com/deepfakes-explained-the-rise-of-fake-realistic-videos-

19
online-2019-6). Deepfakes, which can be “created by AI that has been trained on hours of

footage” permit a person to “superimpose faces onto other bodies.” Id. (quoting Goggin,

supra).

With respect to letters in the legislative history regarding the 2019 amendments, we

note that Senator Susan Lee, a sponsor of S.B. 736, stated in a letter to the House Judiciary

Committee that the “new provision” in § 11-208 “includes images that an ordinary person

would conclude [are of] an actual and identifiable minor.” Bill File for S.B. 736, Letter

from Susan Lee, Leg. Dist. 16, to House Jud. Comm. (Mar. 27, 2019). 9 Her letter shows

that the General Assembly worked to draft the statute in compliance with constitutional

limitations. Senator Lee stated that, although Free Speech Coalition “touched on a similar

issue,” she believed that the language provided by the General Assembly “should be

narrow enough to survive legal challenges on First Amendment grounds.” Id. 10

9
As this Court explained in Logan v. Dietz, 258 Md. App. 629, 669 n.10, cert.
denied sub nom. Dietz v. Logan, 486 Md. 221 (2023), “not all legislative history has equal
value.” (quoting Jack Schwartz & Amanda Stakem Conn, The Court of Appeals at the
Cocktail Party: the Use and Misuse of Legislative History, 54 Md. L. Rev. 432, 437
(1995)). Sponsor testimony is helpful in determining legislative purpose, but material
provided by others tends to be, albeit not always, advocacy statements with limited purpose
in determining legislative intent. Id.
10
The legislative history also included a letter from then-Attorney General Brian
E. Frosh to then-Governor Larry Hogan opining on the constitutionality of CR § 11-208.
Although this letter, written after the General Assembly passed the bill, is not necessarily
relevant to legislative intent, we mention it as it relates to the ultimate issue here, i.e., the
constitutionality of the statute. In assessing the expansion of the statute to prohibit the
possession of an image that is “indistinguishable from an actual and identifiable child,”
Attorney General Frosh noted that the statute applied to “situations where no child was
used in the making of the material in question so long as it appears that an actual and
identifiable child is involved in the depicted activity.” Attorney General Frosh noted that,

20
Based on the plain language of CR § 11-208 and the legislative history, the statute

was drafted to exclude images that did not implicate real children; it prohibits only the

possession of pornography depicting an actual child or a computer-generated image that is

indistinguishable from an actual and identifiable child under the age of 16 years old. In

assessing appellant’s facial overbreadth claim, we reject his argument that CR § 11-208 is

“virtually identical to the language struck down in” Free Speech Coalition. The statutory

provision that the Supreme Court addressed in that case, § 2256(8)(B) of the CPPA, applied

to an image that “appears to be” of a minor. The Court struck down this provision because

it prohibited “child pornography that does not depict an actual child,” and it included

“realistic images of children who do not exist.” Free Speech Coalition, 535 U.S. at 240.

CR § 11-208, by contrast, does not contain the “appears to be” language, and it prohibits

only images of an actual child or a computer-generated image that is indistinguishable from

an actual and identifiable child, i.e., a child who does exist. Unlike § 2256(8)(B), which

the Supreme Court held “create[d] no victims,” Free Speech Coalition, 535 U.S. at 250,

CR § 11-208 is limited to a situation that either is, or is indistinguishable from, an actual,

identifiable child under the age of 16 years old. Maryland’s statute is different from the

statutory provision found to be unconstitutional in Free Speech Coalition.

although Free Speech Coalition held that “[v]irtual child pornography is not ‘intrinsically
related’ to the sexual abuse of children,” 535 U.S. at 250, the Court indicated in its
discussion of computer morphing that such material would “implicate the interests of real
children and are in that sense closer to the images in Ferber.” Id. at 242. After discussing
decisions by other courts that had determined that morphed images with a child’s face
implicated the interest of a real child, he concluded that “the same harms are presented
whenever an actual and identifiable child is depicted in child pornography,” and therefore,
it was the Attorney General’s view that the bill amending CR § 11-208 was constitutional.
21
CR § 11-208 is more similar to a different provision in the CPPA. The Court in

Free Speech Coalition briefly discussed § 2256(8)(C), which prohibited a “computer or

computer-generated image or picture” where “such visual depiction has been created,

adapted, or modified to appear that an identifiable minor is engaging in sexually explicit

conduct,” Child Pornography Prevention Act of 1996, Pub. L. 104-208, § 121, 110 Stat.

3009-26 (1996) (current version, which has not changed, at 18 U.S.C. § 2256). The Court

stated that this provision addressed “a more common and lower tech means of creating

virtual images, known as computer morphing,” which occurred when a person altered

“innocent pictures of real children so that the children appear to be engaged in sexual

activity.” Free Speech Coalition, 535 U.S. at 242. It noted that, although “morphed images

may fall within the definition of virtual child pornography, they implicate the interests of

real children and are in that sense closer to the images in Ferber.” Id. Because there was

no challenge to this provision in Free Speech Coalition, however, the Court did not

specifically address it. Id. CR § 11-208 is more analogous to § 2256(8)(C) than the

provision that the Court struck down in Free Speech Coalition because it requires a

depiction that reflects an identifiable minor.

Although Free Speech Coalition stated that morphed child pornography using

images of real children was closer to real child pornography because it implicated the

interests of real children, the Court declined to address whether it was protected under the

First Amendment. Since that time, however, federal courts have repeatedly upheld

§ 2256(8)(C) and other federal statutes addressing morphed images against overbreadth

challenges.

22
In United States v. Mecham, 950 F.3d 257, 260 (5th Cir.), cert. denied, 141 S. Ct.

139 (2020), the court addressed the constitutionality of prohibiting “morphed” child

pornography, images in which faces of actual children are superimposed on photos of

adults to make it appear that the minors were engaged in sexual activity. The court noted

that the Supreme Court had recognized “the interest in preventing reputational and

emotional harm to children as a justification for the categorical exclusion of child

pornography from the First Amendment,” and that “morphed child pornography raises this

threat to a child’s psychological well-being.” Id. at 267. It concluded that, “because

morphed child pornography depicts an identifiable child, it falls outside the First

Amendment.” Id.

In United States v. Hotaling, 634 F.3d 725, 728-29 (2d Cir.), cert. denied, 565 U.S.

1092 (2011), the court noted that federal and state governments have a “compelling interest

in protecting minors from becoming victims of child pornography because of the

physiological, reputational and emotional harm that distribution of such material imposes

on them,” and when considering a First Amendment challenge to a child pornography

statute, the “underlying inquiry” is whether the “image of child pornography implicates the

interests of an actual minor.” The court held that § 2256(8)(C) is not overbroad because

“the interests of actual minors are implicated when their faces are used in creating morphed

images that make it appear that they are performing sexually explicit acts.” Id. at 729-30.

The identifiable minors in that case “were at risk of reputational harm.” Id. at 730. The

court held that “[s]exually explicit images that use the faces of actual minors are not

protected expressive speech under the First Amendment.” Id. Accord Doe v. Boland, 698

23
F.3d 877, 884 (6th Cir. 2012) (the action of creating a pornographic image by morphing a

real child’s face onto an adult’s body harms the child and is sufficient to remove that action

“from the protections of the First Amendment”), cert. denied, 570 U.S. 904 (2013).

State courts similarly have held that morphed child pornography is not protected

under the First Amendment. See, e.g., People v. McKown, 215 N.E.3d 831, 839 (Ill. 2022)

(joining the “many state and federal courts in holding that morphed child pornography is

not protected by the first amendment” based on harm that follows when “real children’s

images are used in depictions of sexual activity”); McFadden v. State, 67 So.3d 169, 184

(Ala. Crim. App. 2010) (morphed child pornography is not protected by the First

Amendment because those images create a “lasting record” of “children engaged in genital

nudity”), cert. denied, 565 U.S. 1092 (2011). But see State v. Zidel, 940 A.2d 255, 263-

64, 265 (N.H. 2008) (although declining to reach overbreadth challenge, the court held that

private possession of morphed images does not cause harm to the child, and the statute

criminalizing this conduct violated Zidel’s First Amendment rights).

CR § 11-208(b)(1), which prohibits knowingly possessing “a computer-generated

image that is indistinguishable from an actual and identifiable child under the age of 16

years” portrayed in a certain way, criminalizes morphed pornography depicting an actual

child. We agree with the courts that have held that possession of morphed pornography

involving an actual child is not protected under the First Amendment. Morphed child

pornography using actual minors involves reputational and emotional harm to actual

children, and the compelling state interest in protecting children justifies the exclusion of

these images from protection under the First Amendment. Indeed, counsel for appellant

24
conceded that possession of child pornography was not protected under the First

Amendment.

Although the Supreme Court in Free Speech Coalition, 535 U.S. at 242, talked about

computer-generated images in terms of “lower tech” computer morphing, technology has

advanced tremendously since that time. In 2019, this Court noted that the computer-

generated language in CR § 11-208 was added to address technology that had advanced to

allow computer-generated images referred to as “deepfakes.” In re S.K., 466 Md. at 56

n.22. This process is more advanced than systems like Photoshop; “deepfakes are the

product of artificial intelligence, relying on neural networks to generate ‘realistic

impersonations out of digital whole cloth.’” See Emily Pascale, Deeply Dehumanizing,

Degrading, and Violating: Deepfake Pornography and the Path to Legal Recourse, 73

Syracuse L. Rev. 335, 337 (2023) (footnote omitted). “The process involves inputting

hours of video footage of a specific individual to train the neural network to ‘understand’

the nuances of that person’s face.” Id. (footnote omitted). “Once the network is trained, it

can digitally graft one person’s face onto another person’s body.” Id. (footnote omitted).

Generative artificial intelligence models are used to create photorealistic images that

are virtually indistinguishable from real images. Internet Watch Found., How AI is being

abused to create child sexual abuse imagery 7 (2023). “In short, you type in what you

want to see; the software generates the image.” Id. These systems are “trained by a process

called deep learning, which is a type of machine learning that is loosely modelled on the

human brain – using artificial neural networks. These deep learning systems are trained

on huge datasets scraped from the internet.” Id. at 10. Diffusion models are trained via “a

25
vast dataset of images that are scraped from the internet and then labelled with descriptive

words or phrases – the type of text that will later be used for prompting new generations.”

Id. at 12. These models are “large-scale” with the ability to generate “detailed, high-quality

images.” Id. at 13.

The most realistic AI child sexual abuse material is created by fine-tuned models

“that are well-known among AI CSAM communities[11] – reputed for enabling realistic

generation of certain CSAM scenarios, children, or child characteristics.” Id. at 22. These

models often use “datasets that feature a particular child individual – usually a known

victim of child sexual abuse, or a famous child. This is because, for both these categories,

large enough image sets exist to train AI models.” Id.

To the extent that images are created by artificial intelligence using an actual child’s

face, the same concerns involved with morphing exist. Such images, to the extent that they

are indistinguishable from an actual and identifiable child, implicate the interests of an

actual child, who is subject to the type of reputational and emotional harm that justifies

their exclusion from protection under the First Amendment.

It may be possible, however, that an image could be created virtually without

reference to a specific person, but the image nevertheless could look indistinguishable from

an actual minor that the State can identify at trial. In that circumstance, there is a concern

that the statute covers virtual child pornography that Free Speech Coalition held was

protected by the First Amendment.

11
CSAM stands for child sexual abuse material. Internet Watch Found., How AI is
being abused to create child sexual abuse imagery 7 (2023).
26
Initially, as we noted supra, the Court in Free Speech Coalition, 535 U.S. at 240,

explained that the scope of the statute at issue prohibited images using technology that

made “it possible to create realistic images of children who do not exist,” and it prohibited

“child pornography that does not depict an actual child.” CR § 11-208, however, prohibits

only images of an actual child or a computer-generated image that is indistinguishable from

an actual and identifiable child, and it does not include images depicting minors that are

drawings, cartoons, sculptures, or paintings. CR § 11-208 is more narrowly tailored to

address the State’s compelling interest in protecting children than the statutory provision

struck down in Free Speech Coalition.

Maryland’s law is similar to a Minnesota statute, which defined “pornographic

work” as, among other things, a computer-generated image that was “created, adapted, or

modified to appear that an identifiable minor is engaging in sexual conduct.” Minn. Stat.

§ 617.246, subdiv.1(f)(2)(ii) (1999). The Court of Appeals of Minnesota held that the

statute was not overbroad because the visual depiction “must be of an identifiable minor,

not a virtual child.” Fingal, 666 N.W.2d at 425.

Even if, as appellant argues, the statute encompasses some protected activity, a

statute is facially invalid only “if it prohibits a substantial amount of protected speech.”

Williams, 553 U.S. at 292. The “mere fact that one can conceive of some impermissible

applications of a statute is not sufficient to render it susceptible to an overbreadth

challenge.” Id. at 303 (quoting Members of City Council, 466 U.S. at 800). Appellant has

the burden to show that the statute criminalizes a substantial amount of protected speech.

Hansen, 599 U.S. at 770.

27
Appellant has failed to meet his burden in this regard. He has provided no statistics,

cases, or other evidence showing a “realistic danger that the statute itself will significantly

compromise recognized [F]irst [A]mendment protection of parties not before the court.”

Galloway, 365 Md. at 639 (quoting Eanes v. State, 318 Md. 436, 465 (1990)). We are not

aware, at this time, of any prosecutions for the possession of computer-generated virtual

child pornography that was not based on images of an actual child but happened to look

like an actual or identifiable child. “We can hardly say, therefore, that there is a ‘realistic

danger’ that [CR § 11-208] will deter such activity.” Williams, 553 U.S. at 302 (quoting

N.Y. State Club Ass’n v. City of New York, 487 U.S. 1, 11 (1988)). Accordingly, on the

record before us, appellant has failed to show that CR § 11-208 is overbroad. The circuit

court properly denied his motion to dismiss the indictment.

JUDGMENT OF THE CIRCUIT COURT
FOR HOWARD COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.

28