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With narrow reading of child porn law, Court dodges a dilemma.

In United States v. Williams, the Supreme Court upheld a conviction for pandering child pornography under a section of the 2003 ProtectAct. (1) The defendant, Michael Williams, argued that the statute was both overly broad under the First Amendment and vague under the Fifth Amendment.

The 7-2 opinion by Justice Antonin Scalia begins by reviewing the six elements of the crime in question. According to the act, a person is guilty if he or she:
 (1) knowingly (2) advertises, promotes,
 presents, distributes, or solicits
 (3) through the mails, or in
 interstate or foreign commerce ...
 (4) any material or purported material
 (5) in a manner that reflects
 the belief, or that is intended to
 cause another to believe, (6) that
 the material ... is or contains (a) an
 obscene visual depiction of a minor
 engaging in sexually explicit
 conduct; or (b) a visual depiction
 of an actual minor engaging in
 sexually explicit conduct ... (2)


[ILLUSTRATION OMITTED]

"Sexually explicit conduct" includes various kinds of "actual or simulated" sexual behavior, as well as "lascivious exhibition of the genitals or pubic area of any person." (3)

In short, the law prohibits the promotion or pandering of sexually explicit material involving minors, regardless of whether such material actually exists. Another statute prohibits the possession of child pornography, a charge to which Williams pleaded guilty. (4)

The facts of the case are disturbing. On an Internet chat group for pedophiles, Williams offered to swap sexually suggestive pictures of his minor daughter in exchange for similar photos. Williams did not actually have such pictures, but he did have other child pornography.

He entered a conditional guilty plea to the pandering charge but challenged the statute. Although the district court rejected this challenge, on appeal the Court of Appeals for the Eleventh Circuit agreed that the Protect Act was overly broad and impermissibly vague. (5)

Williams's overbreadth claim was based on the Court's 5-4 decision in Ashcroft v. Free Speech Coalition, striking down two parts of a similar statute, the Child Pornography Prevention Act of 1996 (CPPA). (6) The CPPA prohibits the possession and distribution of "any visual depiction" that "is, or appears to be, of a minor engaging in sexually explicit conduct," even if no actual children were involved in its production. (7)

This prohibition was invalid, the Court held, "because the child-protection rationale for speech restriction does not apply to materials produced without children." (8)

The second provision the Court struck down in Ashcroft criminalized the possession and distribution of material that had been pandered as child pornography, regardless of whether it actually was pornography. The Court found that under this provision "a person could thus face prosecution for possessing unobjectionable material that someone else had pandered." (9)

Not surprisingly, the Eleventh Circuit concluded that the Court's reasoning in Ashcroft should apply to Williams, since the Protect Act, like the CPPA, prohibits material that does not require actual children to be involved in its production. In fact, the Protect Act goes even further by not requiring the existence of any "actual" material, just "purported" material. But since the Protect Act extends only to pandering, it does not raise the problem that "a person could thus face prosecution for possessing unobjectionable material that someone else had pandered." (10)

That small difference was enough for the Court. This time, the justices were willing to accept Congress's rationale that requiring proof of actual harm to actual children made it too difficult to prosecute such cases:
 Congress was concerned that limiting the
 child pornography prohibition to material
 that could be proved to feature actual children
 as our decision in Free Speech Coalition
 required, would enable many child pornographers
 to evade conviction.... The emergence
 of new technology and repeated retransmission
 of picture files over the
 Internet could make it nearly impossible to
 prove that a particular image was produced
 using real children--even though "there is
 no substantial evidence that any of the child
 pornography images being trafficked today
 were made other than by the abuse of real
 children," virtual imaging being prohibitively
 expensive. (11)


But this same concern had been advanced--and rejected--in Ashcroft. (12) As Justice Clarence Thomas noted in his concurrence in that case,
 [T]he government's most persuasive [argument
 is] that persons who possess and disseminate
 pornographic images of real children
 may escape conviction by claiming
 that the images are computer generated,
 thereby raising a reasonable doubt as to
 their guilt.... In fact, the government
 points to no case in which a defendant was
 acquitted based on a "computer-generated
 images" defense. While the speculative interest
 cannot support the broad reach of
 the CPPA, technology may evolve to the
 point where it becomes impossible to enforce
 actual child pornography laws because
 the government cannot prove that
 certain pornographic images are of real
 children. (13)


The majority in Williams cited no proof of any problems with prosecutions or any new technology to support its sudden acceptance of the government's rationale. In fact, Williams had pleaded guilty without a fight.

Rather than rejecting the statute outright, the Court emphasized its limited reach. First, Scalia noted, the scienter requirement--that the defendant must have acted "knowingly"--applies to every element of the statute. Also, "the defendant must actually have held the subjective 'belief' that the material or purported material was child pornography." (14) Obviously, if someone believes the material is "purported" and not real, it's impossible for that person to believe that the material is child pornography.

In this case, Williams was convicted of offering photos of his daughter being molested, even though such photos didn't exist. This would fall under the "intended to cause another to believe" prong of element 5. But one who neither believes nor tries to convince another that certain material is child pornography is not guilty. This clause--and the requirement that any display of genitals be "lascivious"--would excuse people who offer to send nude photos of their children to Grandma, for example, or grandmothers who send such pictures to their friends. (15) Next, the Court noted that the statute forbids only "sexually explicit conduct" and that "the sorts of sex scenes found in R-rated movies--which suggest that [child] intercourse is taking place without explicitly depicting it, and without causing viewers to believe that the actors are actually engaging in intercourse"--would not fall under the statute, (16) though this is not obvious from the face of the statute.

Finally, the Court observed that, unlike the CPPA, the Protect Act's requirement of a "visual depiction of an actual minor" makes it clear that "although the sexual intercourse may be simulated, it must involve actual children (unless it is obscene)." (17) This change eliminates the possibility that virtual child pornography or sex between youthful-looking adults might be covered by the term "simulated sexual intercourse." (18)

Pandering and protected speech

But this conclusion is misleading. Because the statute punishes only pandering, the person offering the pornography does not need to possess any material at all, much less a "visual depiction of an actual minor."

Still, someone who offered to distribute R-rated movies would not run afoul of the statute as long as he or she did not claim that the movies contained child pornography. And since the statute is limited to purported "visual depictions," it does not include literature and it would not apply to virtual child pornography, as long as the panderer does not say it is real. (19)

As for the free speech question, the Court pointed out that the Eleventh Circuit's concern that the statute was not limited to commercial speech was correct--but irrelevant. "Many long-established criminal proscriptions--such as laws against conspiracy, incitement, and solicitation--criminalize speech (commercial or not) that is intended to induce or commence illegal activities," wrote Scalia. "In sum, we hold that offers to provide, or requests to obtain, child pornography are categorically excluded from the First Amendment." (20)

In short, the Court found that the statute is not overbroad by definition, because it doesn't intrude on any meaningful free speech concerns.

The Court accepted, but was untroubled by, the Eleventh Circuit's conclusion that the statute could punish "a braggart, exaggerator, or outright liar." (21) It did note that the word "promotes" in the statute "does not refer to abstract advocacy"--for instance, writing phrases such as, "I believe that child pornography should be legal" or even "I encourage you to obtain child pornography." Instead, it "refers to the recommendation of a particular piece of purported child pornography with the intent of initiating a transfer." (22)

Turning to the vagueness claim, the Court noted the general requirement that a statute must "provide a person of ordinary intelligence fair notice of what is prohibited" and must not be "so standardless that it authorizes or encourages seriously discriminatory enforcement." (23) Moreover, when the First Amendment is at issue, a defendant may argue that even though his or her con duct was illegal, the same law used to prosecute him or her may also be used to proscribe protected speech in other hypothetical contexts. This had led the Eleventh Circuit to conjure up several hypothetical cases in which innocent conduct and protected speech might be prosecuted under the statute.

But the Supreme Court dismissed these hypotheticals, saying that they would be "thrown out at the threshold." (24)

"The mere fact that close cases can be envisioned" does not render a statute vague, Scalia wrote. "What renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is." For instance, a statute requiring proof that a defendant's conduct was "annoying" or "indecent," without statutory definition, would be struck down as vague. (25)

But the Protect Act says the defendant must "hold, and make a statement that reflects, the belief that the material is child pornography" or "communicates in a manner intended to cause another so to believe," and because of this, a case brought under it will present "clear questions of fact." As the Court said, "[C]ourts and juries every day pass upon knowledge, belief, and intent--the state of men's minds--having before them no more than evidence of their words and conduct, from which, in ordinary human experience, mental condition may be inferred." (26)

The Protect Act is two steps removed from the "children harmed in the making" rationale (27) that underlies the exception to the general First Amendment principle that pornographic, as opposed to "obscene," material may not be banned. (28) It requires neither the exploitation of children nor any actual material--pornographic or otherwise--for a suspect to be found guilty. As such, it is vulnerable to the same reasoning that the Supreme Court used to strike down a similar law in Ashcroft.

On the other hand, the Court's insistence on narrowing the act's coverage renders serious First Amendment concerns nugatory. It does not even ban speech that advocates the production or distribution of child pornography.

The Supreme Court also said that serious movies and family pictures do not come under the statute unless there is an attempt to promote them as child pornography. Given these clear restrictions, it is difficult to say that legitimate, protected activity would be chilled under the act.

This case illustrates both the power and the vulnerability of the Supreme Court. The Court was able to strike down the first statute in Ashcroft on pure First Amendment grounds, despite the stated desirability of banning child pornography.

But even though the new statute suffers from similar free speech defects, the Court, or at least the three justices (Kennedy, Stevens, and Breyer) who switched, recognized that to slap Congress down again, on the same issue, could be a political nightmare. Both Congress and the press might react to the decision by condemning the Court as "soft" on child pornographers. And this case involved a particularly unsavory defendant. The Court must have wondered: Was there any good way around this dilemma?

There was, and the justices saw it clearly. They simply read all the serious First Amendment concerns out of the statute, leaving it to cover only panderers, or those who claim to be panderers, of child pornography. Even the dissent, while raising general First Amendment concerns, could not come up with any examples of legitimate speech that the act would chill. (29)

This decision was an elegant way of retaining extensive protection for free speech while avoiding a political showdown with Congress over an issue that, in the majority's view, was not worth fighting.

Notes

(1.) 128S. Ct. 1830 (2008).

(2.) 18 U.S.C. [section] 2252A (a)(3) (2003) (emphasis and numbering added).

(3.) 18 U.S.C. [section] 2256(2) (A) (2003).

(4.) That statute is 18 U.S.C. [section] 2252A(a)(5)(B) (2003).

(5.) Williams v. United States, 444 F.3d 1286 (11th Cir. 2006).

(6.) 535 U.S. 234 (2002).

(7.) 18 U.S.C. [section] 2256(8) (B) (rewritten 2003).

(8.) Williams, 128 S. Ct. at 1836.

(9.) Id.

(10.) Id.

(11.) Id. at 1837 (emphasis in original).

(12.) 535 U.S. at 254-55.

(13.) Id. at 259 (Thomas, J., concurring in the result) (citations omitted).

(14.) Williams, 128 S. Ct. at 1839-40.

(15.) As the Court makes clear. Id. at 1843.

(16.) Id. at 1841.

(17.) Id.

(18.) Id.

(19.) Id. at 1844 (unless it was obscene).

(20.) Id. at 1841-42.

(21.) Id. at 1842.

(22.) Id.

(23.) Id. at 1845.

(24.) Id. at 1846.

(25.) Id.

(26.) Id.

(27.) See Ashcroft, 535 U.S. at 240 (relying on New York v. Ferber, 458 U.S. 747 (1982)).

(28.) See Miller v. California, 413 U.S. 15 (1973) (defining obscenity).

(29.) "True, what will be lost is short on merit, but intrinsic value is not the reason for protecting unpopular expression." Williams, 128 S. Ct. at 1854 (Souter, J. dissenting).

CRAIG M. BRADLEY is the Robert Lucas Professor of Law at Indiana University in Bloomington. He can be reached at bradleyc@indiana.edu.
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Title Annotation:Supreme Court Review
Author:Bradley, Craig M.
Publication:Trial
Date:Aug 1, 2008
Words:2328
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