Rouse, now 39, later appealed to the US District Court in Nebraska to dismiss his indictment. He argued that prosecuting him for having consensual sex with a 16-year-old, which is legal in Nebraska, and for recording and sharing the videos only with her, violated his constitutional rights to free speech and sexual privacy.

The district court denied his motion, saying that child pornography was “categorically excluded” from protection under the First Amendment. On Tuesday, the 8th Circuit Court of Appeals agreed with the district court and upheld Rouse’s conviction.

The court said “the production and distribution of video recordings of a 16-year-old girl engaged in sexual explicit conduct” was illegal, “even if the sexual activity is legal in the State of Nebraska.” The age of consent in Nebraska is 16.