US v. Williams..decision..on child pornography

By a 7-2 majority (opinion by Justice Scalia), the Court upheld the "pandering" provision of a federal statute banning child pornography, 18 USC sec. 2252A(a)(3)(B), by saying that it was neither overbroad, which would violate the First Amendment, nor vague, which would implicate the Due Process Clause of the Fourteenth Amendment. The dissenters (Souter and Ginsburg) maintained that the statute reached too far because it made criminal the offense of doctoring and circulating sexual images of children even when no real children were involved in the images (i.e., the images were "photoshopped" and didn't reflect real children). This essay reviews the pandering provision of the law and the major arguments made by Justice Scalia.

The Law and Argument

Here is the statute that the Justices were asked to construe:

"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).

No one, least of all the nine Justices, questioned the danger of child pornography; the central question was whether prohibitions of "purported material" and "obscene visual depiction" would prohibit too many licit activities, and thus offend the Constitution. The challenge brought to the statute just quoted was a "facial" challenge--questioning the constitutionality of the statute without any particular set of facts in mind. A facial challenge is much more difficult to mount than an "as applied" challenge. Justice Scalia argued (summary from the Syllabus of the decision) as follows:

"A statute is facially invalid if it prohibits a substantial amount of protected speech. Section 2252A(a)(3)(B) generally prohibits offers to provide and requests to obtain child pornography. It targets not the underlying material, but the collateral speech introducing such material into the child-pornography distribution network. Its definition of material or purported material that may not be pandered or solicited precisely tracks the material held constitutionally proscribable in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113, and Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419: obscene material depicting (actual or virtual) children engaged in sexually explicit conduct, and any other material depicting actual children engaged in sexually explicit conduct. The statute's important features include: (1) a scienter requirement; (2) operative verbs that are reasonably read to penalize speech that accompanies or seeks to induce a child pornography transfer from one person to another; (3) a phrase-“in a manner that reflects the belief,” ibid.-that has both the subjective component that the defendant must actually have held the “belief” that the material or purported material was child pornography, and the objective component that the statement or action must manifest that belief; (4) a phrase-“in a manner ... that is intended to cause another to believe,” ibid-that has only the subjective element that the defendant must “intend” that the listener believe the material to be child pornography; and (5) a “sexually explicit conduct” definition that is very similar to that in the New York statute upheld in Ferber..."

The five aspects of the law highlighted by Justice Scalia are attempts to do what legal scholars call "narrowing" of the law--that is, they are designed to confine a reading of the law to its narrowest terms. For example, taking only the first feature, there has to be "scienter"--a certain state of "knowledge" in both the advertiser/producer and the recipient. This limitation guards against "inadvertent" use of material or of "good faith" sending of pictures of "the kid in the bathtub" or two naked babies romping with each other or other common and innocent naked photos of children that are shared by adults. Thus, according to Justice Scalia, even though there are times that the law might reach too broadly, it can be construed rather narrowly so as not to catch in its net those who share innocent pictures of naked children. Thus, the statute is not 'overbroad.'

Nor is the statute impermissibly vague--which would be the case if it didn't point specifically and explicitly to the type of behavior prohibited. He argued:

"Section 2252A(a)(3)(B) is not impermissibly vague under the Due Process Clause. A conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement. Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597. In the First Amendment context plaintiffs may argue that a statute is overbroad because it is unclear whether it regulates a substantial amount of protected speech. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-495, and nn. 6 and 7, 102 S.Ct. 1186, 71 L.Ed.2d 362. The Eleventh Circuit mistakenly believed that “in a manner that reflects the belief” and “in a manner ... that is intended to cause another to believe” were vague and standardless phrases that left the public with no objective measure of conformance. What renders a statute vague, however, 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 what that fact is. See, e.g., Coates v. Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214. There is no such indeterminacy here. The statute's requirements are clear questions of fact. It may be difficult in some cases to determine whether the requirements have been met, but courts and juries every day pass upon the reasonable import of a defendant's statements and upon “knowledge, belief and intent.” American Communications Assn. v. Douds, 339 U.S. 382, 411, 70 S.Ct. 674, 94 L.Ed. 925.

The wording of the statute is not indeterminate despite the difficulty at times in trying to figure out precisely what is prohibited in every instance. But, as Scalia argued, that is precisely what American juries do every day.

Justices Stevens and Breyer, normally those in the liberal "bloc" in the Court, concurred with the majority opinion, but would have had the author quote some of the legislative history of the enactment of the law quoted near the beginning of this essay--to fill out the meaning of this provision.

Altogether, then, this wasn't a surprising decision. Certainly the language of the federal law, now that it has been found constitutional, will be used more and more by states as they refine their child pornogrpahy laws.

3525