2007-2008 TERM

Introduction

Toobin's The Nine

Oct '07 Arguments

WA State Grange v WA Rep.
WA v WA Republicans
(consolidated; elections law)
Decided Mar. 18, 2008

Bd of Education v. Tom F.
(special education law)
Decided Oct. 10, 2007

Gall v. United States
(criminal sentencing)
Decided Dec. 10, 2007

Kimbrough v. US
(crack cocaine sentencing)
Decided Dec. 10, 2007

NY Elections v. Lopez Torres
(NY election law)
Decided Jan. 16, 2008

US v. Santos
("proceeds" in gambling)
Decided June 2, 2008

Watson v. United States
(firearm in drug deal)
Decided Dec. 10, 2007

Stoneridge v. Scientific-Atl.
(securities law violation)
Decided Jan. 15, 2008

Medellin v. Texas
(int'l law and the President)
(two essays)
Decided Mar. 25, 2008

Klein & Co v. Board of Trade
(standing to sue--futures)
Dismissed Dec. 28, 2007

Ali v. Fed. Bur. of Prisons
(standing--Tort Claims)
Decided Jan. 22, 2008

United States v. Williams
(pandering child porn)
Decided May 19, 2008

Logan v. United States
(criminal sentencing)
Decided Dec. 4, 2007

Danforth v. Minnesota
(retroactivity of sentences)
Decided Feb. 20, 2008

Nov '07 Arguments

CSX V GA Bd. of Education
(methods of tax valuation)
Decided Dec. 4, 2007

KY Dept of Rev. v. Davis
(tax exempt state bonds)
Decided May 19, 2008

John R. Sand & Gravel v US
(statute of limitations)
Decided Jan. 8, 2008

Allen v. Siebert
(statute of limitations)
Decided Nov. 5, 2007

Fed. Express v. Holowecki
(timing of filing complaint)
Decided Feb. 27, 2008

Hall St. Assoc. v. Mattel
(judge review of arbitration)
Decided Mar. 25, 2008

LaRue v. DeWolff, Boberg
(pension suits ag employer)
Decided Feb. 20, 2008

Knight v. CIR
(deduction of advisor fee)
Decided Jan. 16, 2008

New Jersey v. Delaware
Decided Mar. 31, 2008

Rowe v NH Motor Transp.
(internet sales of cigarettes)
Decided Feb. 20, 2008

Dec '07 Arguments

Sprint/UM v. Mendelsohn
(age discrimination--firing)
Decided Feb. 26, 2008

Snyder v. Louisiana
(jury selection)
Decided Mar. 19, 2008

Riegel v. Medtronic
(products liability)
Decided Feb. 20, 2008

Boumediene v. Bush
Al Odah v. United States
(Guatanamo Detainees)
Decided June 12, 2008

Jan '08 Arguments

Wright v. Van Patten
(Ineffective Counsel)
Decided Jan. 7, 2008

Arave v. Hoffman
(Ineffective Counsel)
Decided Jan. 7, 2008

Dada v. Keisler
(immigration)
Decided June 16, 2008

Baze v. Rees
(lethal injection)
Decided Apr. 16, 2008

Gonzalez v. United States
(jury selection)
Decided May 12, 2008

Boulware v. United States
(state tax allocation)
Decided March 3, 2008

KY Retirement v. EEOC
(age discrimination)
Decided June 19, 2008

Crawford v. Marion City
IN Dem. Party v Rokita
(voter Photo ID)
Decided Apr. 28, 2008

Virginia v. Moore
(search incident to arrest)
Decided Apr. 23, 2008

Preston v. Ferrer
(Judge Alex case)
Decided Feb. 20, 2008

Begay v. United States
(Armed Career Crim. Act)
Decided Apr. 16, 2008

United States v. Rodriguez
(Armed Career Crim. Act)
Decided May 19, 2008

Meadwestvaco v. IL Dep't.
(tax law--investment)
Decided Apr. 15, 2008

Quanta v. LG Electronics
(patent infringement)
Decided June 9, 2008

Feb. '08 Arguments

Gomez-Perez v. Potter
(retaliation--federal ADEA)
Decided May 27, 2008

Morgan Stanley v. PUD
Calpine Energy v. PUD
(consolidated cases)
(Cal 2000 Energy Crisis)
Decided June 26, 2008

CBOCS v. Humphries
(retaliation--section 1981)
Decided May 27, 2008

Cuellar v. United States
(fed. money laundering law)
Decided June 2, 2008

Warner-Lambert v. Kent
(products liability)
Decided Mar. 3, 2008

Allison v. United States
(federal false claims act)
Decided June 9, 2008

Exxon Shipping v. Baker
(Exxon Valdez disaster)
Decided June 25, 2008

Mar. '08 Arguments

Philippines v. Pimental
(sov. immunity/nec. party)
Decided June 12, 2008

Rothgery v. Gillespie Cty
(Sixth Amend. counsel)
Decided June 23, 2008

DC v. Heller
(Second Amend--handgun)
(Further Discussion)
Decided June 26, 2008

Richlin Sec. v. Chertoff
(EAJA paralegal expenses)
Decided June 2, 2008

Chamber of Com. v. Brown
(Labor Law/CA statute)
Decided June 19, 2008

Burgess v. US
(sentence enhancement)
Decided Apr. 16, 2008

US v. Clintwood Mining
(tax reimbursement)
Decided Apr. 15, 2008

Riley v. Kennedy
(AL voting rights case)
Decided May 27, 2008

Munaf v. Geren
Geren v. Omar (consol.)
(Access to American Courts for Am. detainees in Iraq)
Decided June 12, 2008

US v. Ressam
(Explosives charge)
Decided May 19, 2008

Indiana v. Edwards
(Competency to Rep. Self)
Decided June 19, 2008

Florida v. Piccadilly
(Bankruptcy transfer)
Decided June 16, 2008

Apr. '08 Arguments

Sabre v. Phoenix Bond
(Reliance in RICO claim)
Decided June 9, 2008

Plains Bank v. Long Family
(Native American courts)
Decided June 25, 2008

Irizarry v. United States
(Federal Sent. Guidelines)
Decided June 12, 2008

Greenlaw v. United States
(Statutory Minimum Sent.)
Decided June 23, 2008

Kennedy v. Louisiana
(Death Pen. for Rape)
Decided June 25, 2008

Taylor v. Sturgell
("virtual representation")
Decided June 12, 2008

Engquist v. OR Dept of Ag.
(Equal Protection Clause)
Decided June 9, 2008

Sprint v. APCC Services
(Standing to Sue Sprint)
Decided June 23, 2008

Davis v. Fed. Elec. Comm.
(Campaign Expenditures)
Decided June 26, 2008

Giles v. California
(Forfeiture of Confrontat..)
Decided June 25, 2008

Meacham v. Knolls
(Layoffs of Older Workers)
Decided June 19, 2008

MetLife v. Glenn
(Conflict of Interest)
Decided June 19, 2008

United States v. Williams

Bill Long 12/16/07

Docket No. 06-694; Oral Arg. October 29, 2007

This is a very difficult case relating to the "pandering" of child pornography. It has to do with whether the following law is unconstitutionally overbroad. Before I give you any of the facts of the case or the lower court decision, let's just look at the words (this is the "pandering" provision) of the law:

"Any person who knowingly (B) advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including the computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains-(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) is a visual depiction of an actual minor engaging in sexually explicit conduct...shall be punished [by fine and imprisonment," 18 USC 2252A(a)(3)(B).

Any first impressions?

Case Background

This case arose against the backdrop of an alarming rise in the sale and distribution of graphic sexual images of children, particularly through the Internet. In addition, with the advent of new sophistication in computer technology, such graphic images can be made of "real" children as well as "virtual" children. That is, images can be manipulated easily so that even if a real-life child isn't being depicted, one can still have the depiction of a child engaged in graphic sexual activity. This case also arose within the context of a jurisprudence of free speech under the First Amendment, which is broadly protective of expressive speech, which includes graphic depictions of adult nudity. So, a primary issue in this case is the ability of Congress to draft legislation that can address the problem of the proliferation of child pornography while, at the same time, not sweep too broadly into protected areas of free speech which most Americans (and at least the Courts, at present) cherish.

To date, the results haven't been very successful. With the expansion of computer technology, Congress passed the Child Pornography Prevention Act of 1996, which defined "child pornography" to include a visual depiction that "is, or appears to be," of a minor engaging in sexually explicit conduct. It also defined "child pornography" as a visual depiction "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct" (former 18 USC 2256(8)(D)). However, the Court, in Ashcroft v. Free Speech Coalition (535 US 234 (2002)), concluded that both these provisions were substantially overbroad in violation of the First Amendment because they "proscribed a significant universe of speech that is neither obscene under Miller (413 US 15 (1973)) nor child pornography under Ferber (458 US 747 (1982))." The Court emphasized in this 2002 decision that depictions of sexually explicit conduct could be banned only if they involved real children, because only the need to protect real children from sexual abuse could justify dispensing with a prior requirement, in Miller, that material be shown to be obscene before it could be prohibited.

Well, Congress mulled that one over for a very brief time before passing the current PROTECT Act legislation (of course it stands for some acronym) in 2003, which aims to revise those provisions of the 1996 Act that the Court found unconstitutional. One of those provisions is bolded above. Did Congress succeed? Let's look at Mr. Williams' case.

The Case Below

Mr. Williams was caught as an increasingly large number of child pornographers are caught--as a result of a chat room conversation with an undercover agent posing as someone who wanted to receive or trade sexually graphic photos of underage children. Williams posted such photos, was arrested, had his computer hard drives searched and was charged with counts of possessing and "pandering" child pornography. As it turns out, he was sentenced to 60 months on each charge, to be served concurrently. He reserved the right to challenge the constitutionality of the "pandering" charge. The Court of Appeals for the 11th Circuit (Florida) (444 F3d 1286 (2006)) declared the pandering statute to be unconstitutional. Yet, since Williams was serving concurrent 60 month sentences, the invalidation of the pandering law left unaffected his conviction for possession of these images. Hence, he still is serving 60 months in prison. Thus, ironically, the results of his case will affect him not at all. It is just an exercise for the Court to see if Congress passed a constitutional law in this instance.

Whe the Court of Appeals overturned the bolded law above, it stated that it had three objections to it. I quote from the Government's Petition for a Writ of Certiorari at *11.

"First, because the “pandered child pornography need only be ‘purported’ ”to be covered by the statute, the court was concerned that the statute sweeps in material that either does not in fact exist or that does not satisfy the legal definition of child pornography. Second, in the court's view, the provision bans protected speech in the form of “the description or advocacy of illegal acts” in circumstances that do not rise to the level of “immediate incitement.”

Third, the court found “particularly objectionable the criminalization of speech that ‘reflects the belief’ that materials” are illegal child pornography because, in the court's view, the provision punishes “a defendant's beliefs that simulated depictions of children are real or that innocent depictions of children are salacious.” As the court understood Section 2252A(a)(3)(B), the intent to traffic in illegal pornography “only applies to one portion of the provision - promoting material in a manner ‘that is intended to cause another to believe’ it is illicit.”

Conclusion

The Government vigorously challenges this reasoning, arguing both for the need for such a law and the fact that the language is narrowly tailored. The Court will tell us whether this garment needs more tailoring.

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