Whether courts must apply a 'limited context' test rather than an expansive 'context' test or a 'four corners' test in determining whether an image of a child acting innocently constitutes child pornography under the First Amendment and Due Process

QUESTION PRESENTED Petitioner Carlos Rodriguez Fernandez was convicted of producing child pornography by surreptitiously filming his teenage stepdaughter twice going about her normal bathroom routine. The relevant statutes require that a minor be used to engage in “sexually explicit conduct” (i.e., “lascivious exhibition of the anus, genitals, or pubic area”) for the purpose of producing a visual depiction thereof. Though the minor never acted in any sexually explicit way in the videos — instead displaying mere nudity — the district court added language to the pattern jury instruction from the Eleventh Circuit’s Holmes case that innocent conduct may constitute a “lascivious exhibition” based on “the actions of the individual creating the depiction.” In Holmes, the Eleventh Circuit joined three other circuits in applying an expansive “context” test, permitting juries to consider a breadth of evidence extrinsic to the otherwise innocent image. With no Supreme Court guidance, circuits are deeply split, developing a confusing and contradictory variety of tests and factors for these cases, from limiting the evidence to the “four corners” of the image, to a middle ground of “limited context,” to a broad array of “context” evidence (sometimes First Amendment protected), as well as outliers focusing on select wording in the statute. The question thus is: To comport with the First Amendment and Due Process in determining whether an image of a child acting innocently constitutes child pornography, must courts apply a “limited context” test, rather than expand their inquiry to unconstrained “context” or restrict their inquiry to the image itself? i