Whether lasciviousness under 18 U.S.C. § 2256(2)(A)(v) may be determined by examining the context or creator's intent, or must be determined solely from the four corners of the image

QUESTION PRESENTED In the child pornography context, “sexually explicit conduct” is defined, in part, as a depiction which displays the “lascivious exhibition of the ... genitals ... of any person.” 18 U.S.C. § 2256(2)(A)(v). For decades, federal courts have struggled to define how much evidence, if any, of the depiction’s creator’s intent or the context of the depiction’s creation may be considered by the factfinder in its determination of lasciviousness. A three-way circuit split has developed over this issue. Mr. Cohen sent photographs of his erect penis to women in exchange for photographs of their breasts. In its decision below, the Fourth Circuit concluded that his photographs were lascivious because they were created and “exchanged in the context of a sexual conversation with no conceivable other purpose.” App. 6A. That approach was wrong. The evidence used to determine lasciviousness should be limited to the four corners of the depiction itself. The question presented is: Whether lasciviousness under 18 U.S.C. § 2256(2)(A)(v) may be found by examining the context in which the image was produced or the creator’s intent, or whether it must be determined by looking only to the four corners of the image? i