Whether the judicial construction of 'lascivious exhibition' of the genitals or pubic area of a minor in 18 U.S.C. § 2256(2)(A)(v) to include consideration of subjective factors, beyond the objective meaning of those words, misconstrued the plain language of the statute and injected definitional vagueness and overbreadth into the trial proceedings that unconstitutionally permitted convictions for behavior beyond the scope of the federal statute

QUESTION PRESENTED The federal statute on producing child pornography includes a definitional section setting out five objective standards defining proscribed images. Through judicial construction, the Ninth Circuit approved judicial expansion of the fifth definition to include consideration of what are known as the Dost factors, which permit assessment of subjective intent in deciding whether a visual depiction constitutes a proscribed “lascivious exhibition” of the genitals or pubic area. 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, 1244 (9th Cir. 1987). Following Dost, appellate courts have split regarding the construction of the producing child pornography statute to cover video voyeurism involving children, and regarding the application and constitutional implications of the Dost factors in general. The question presented is: Whether the judicial construction of “lascivious exhibition” of the genitals or pubic area of a minor in 18 U.S.C. § 2256(2)(A)(v) to include consideration of subjective factors, beyond the objective meaning of those words, misconstrued the plain language of the statute and injected definitional vagueness and overbreadth into the trial proceedings that unconstitutionally permitted convictions for behavior beyond the scope of the federal statute.