The Supreme Court of the United States Holds in United States v. Williams That 18 U.S.C. §2252A(a)(3)(B)
Is Not Impermissibly Overbroad or Void for Vagueness
In
2002, the Supreme Court of the United States held in Ashcroft v.
Free Speech Coalition that two provisions of the federal Child
Pornography Protection Act of 1996 (CPPA) facially overbroad.
The Court held that 18 U.S.C. §2256(8)(B), which banned the
possession and distribution of “’any visual depiction’” that
“’is, or appears to be, of a minor engaging in sexually explicit
conduct,’” even if the depiction is of virtual children or adult
actors, was overbroad because the child-protection rationale employed
for speech restriction doesn’t apply to materials that do not
involve actual children.
The Court additionally held that 18 U.S.C. §2256(8)(D), which
criminalized the possession and distribution of material that had
been pandered as child pornography – regardless of whether the
material was in fact child pornography, “more than prohibited
pandering” and was facially overbroad.
In an attempt to ‘cure’ the effect of Free Speech Coalition,
Congress enacted the Prosecutorial Remedies and Other Tools to end
the Exploitation of Children Today Act of 2003 (PROTECT Act).
Section 503 of the Act of 2003 amended 18 U.S.C. §2252A to add
a new pandering and solicitation provision,
the constitutionality of which is challenged by the respondent in
United States v. Williams.
On
April 26, 2004, respondent Michael Williams posted a message in a
public internet chat room that read: “Dad of toddler has ‘good’
pics of her an [sic] me for swap of your toddler pics, or live cam.”
A Secret Service agent signed in to that chat room using the screen
name “Lisa n Miami” and began a conversation with Williams, who
used an explicit screen name. The agent swapped non-pornographic
images of children with Williams. Williams then posted a message
indicating that he had photographs of men molesting his 4-year-old
daughter. Williams challenged “Lisa n Miami” and demanded that
the agent produce additional pictures. When the agent did not
comply, Williams posted this message in the public chat room: “HERE
ROOM; I CAN PUT UPLINK CUZ IM FOR REAL – SHE CANT.” A hyperlink
was attached to the message that led to seven pictures of actual
children being sexually exploited and displaying their genitals. The
Secret Service obtained a search warrant for Williams’ home and
agents seized two hard drives containing at least 22 images of actual
children being exploited in displays of sexually explicit conduct,
some of which was sadomasochistic.
Williams
was charged with one count of possessing child pornography under 18
U.S.C. §2252A(a)(5)(B) and with one count of pandering child
pornography under 18 U.S.C. §2252A(a)(3)(B). He pleaded guilty
to both counts, reserving the right to challenge the
constitutionality of his pandering conviction under 18 U.S.C.
§2252A(a)(3)(B). The District Court rejected his constitutional
challenge and sentenced him to 60 months concurrently.
The United States Court of Appeals for the Eleventh Circuit reversed
the pandering conviction under 18 U.S.C. §2252A(a)(3)(B),
holding that it was both facially overbroad and impermissibly vague.
The Supreme Court of the United States granted certiorari.
On
May 19, 2008, the United States Supreme Court reversed the Eleventh
Circuit stating that “the previous attempt by Congress to meet the
threat of internet exchanges of child pornography was held
unconstitutional and Congress responded with a “carefully crafted
attempt to eliminate the First Amendment problems we identified…
that effort was successful.”
The
U.S Supreme Court found that the CPPA Act of 1996 pandering statute
impermissibly targeted the underlying child pornography material. In
Williams, the Supreme Court differentiated the current
pandering statute in the 2003 Act as permissibly banning the
collateral speech that introduces child pornography into a child
pornography distribution network. 18 U.S.C. §2252A(a)(3)(B)
states:
“(a)
Any person who-
(3) knowingly-
(B)
advertises, promotes, presents, distributes, or solicits through the
mails, or in interstate or foreign commerce by any means, including
by 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)
a visual depiction of an actual minor engaging in sexually explicit
conduct,
shall be punished as provided in subsection (b).”
The
First Amendment over breadth doctrine holds, “A statute is facially
invalid if it prohibits a substantial amount of protected speech.”
The U.S. Supreme Court considered five features in determining
whether 18 U.S.C. §2252A(a)(3)(B) is overbroad: First, the
scienter requirement clearly applies to the entire provision.
Second, the statute penalizes speech that accompanies or seeks to
induce a transaction of child pornography material. Third, the
statute requires both that the defendant subjectively believe that
the material is child pornography and that the statement or action
objectively manifests a belief that the material is child
pornography. Fourth, the defendant must subjectively intend that the
listener believe the material is child pornography and advertise or
promote it with the aim of engendering that belief. Fifth, the
definition of “sexually explicit conduct” renders it more
immune from facial constitutional attack (making “simulated sexual
intercourse” inapplicable to R-rated movies that suggest
intercourse without explicitly depicting the conduct). 18 U.S.C.
§2252A(a)(3)(B)(ii)’s requirement of a “visual depiction of
an actual minor” is a critical element of the statute, clarifying
that “although the sexual intercourse may be simulated, it must
involve actual children (unless it is obscene).”
The Supreme Court held that offers or requests to transfer child
pornography are “categorically excluded” from First Amendment
protection.
The
vagueness doctrine of the Fifth Amendment’s Due Process Clause
holds, “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.”
In concluding that 18 U.S.C. §2252A(a)(3)(B) is not void for
vagueness, the U.S. Supreme Court held that there is no indeterminacy
of what incriminating fact is established by the statute. “The
statute requires that the defendant hold, and make a statement that
reflects, the belief that the material is child pornography; or that
he communicate in a manner intended to cause another so to believe.
Those are clear questions of fact.”
Justice
Stevens, joined by Justice Breyer, wrote a concurring opinion adding
two considerations upon which he based his opinion. First, Justice
Stevens cited the principle of Hooper v. California that
“every reasonable construction must be resorted to, in order to
save a statute from unconstitutionality.”
Second, to the extend that statutory language may be unclear, the
Court should avoid constitutional objections and look to the intent
of the legislature. Based on the statute’s legislative history,
Congress’ intent was clearly to criminalize “materials
advertised, promoted, presented, distributed, or solicited with a
lascivious purpose – that is, with the intention of inciting sexual
arousal.”
Justice
Souter, joined by Justice Ginsburg, drafted a dissenting opinion
arguing that 18 U.S.C. §2252A(a)(3)(B) impermissibly undermines
First Amendment precedents regarding proposals to transact in
constitutionally protected material and would hold it
unconstitutional on the authority of New York v. Ferber
and Free Speech Coalition.
The dissenting opinion states, “Eliminating the line between
protected and unprotected speech, guaranteeing the suppression of a
category of expression previously protected, and reducing recent and
carefully considered First Amendment precedents to empty shells are
heavy prices, not to be paid without a substantial offset, which is
missing from this case.”
