553 U.S. 285 (2008), 06-694, United States v. Williams

Docket Nº06-694.
Citation553 U.S. 285, 128 S.Ct. 1830
Opinion JudgeSCALIA, Justice.
Party NameUNITED STATES, Petitioner, v. Michael WILLIAMS.
AttorneySolicitor General Clement argued the cause for the United States. With him on the briefs were Assistant Attorney General Fisher, Deputy Solicitor General Dreeben, Deanne E. Maynard, and Deborah Watson Richard J. Diaz argued the cause for respondent. With him on the brief were Ophelia M. Vails, Lu...
Judge PanelSCAIJA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, THOMAS, BKEYER, and AUTO, JJ., joined. STEVENS, J., filed a concurring opinion, in which BREYER, J., joined, post, p. 307. SOUTER, J., filed a dissenting opinion, in which GINSBURG, J., joined, post, p....
Case DateMay 19, 2008
CourtUnited States Supreme Court

Page 285

553 U.S. 285 (2008)

128 S.Ct. 1830

UNITED STATES, Petitioner,

v.

Michael WILLIAMS.

No. 06-694.

United States Supreme Court

May 19, 2008

Argued October 30, 2007.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 06-694.

[128 S.Ct. 1833] Syllabus

After this Court found facially overbroad a federal statutory provision criminalizing [128 S.Ct. 1834] the possession and distribution of material pandered as child pornography, regardless of whether it actually was that, Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403, Congress passed the pandering and solicitation provision at issue, 18 U.S.C. § 2252A(a)(3)(B). Respondent Williams pleaded guilty to this offense and others, but reserved the right to challenge his pandering conviction's constitutionality. The District Court rejected his challenge, but the Eleventh Circuit reversed, finding the statute both overbroad under the First Amendment and impermissibly vague under the Due Process Clause.

Held:

1. Section 2252A(a)(3)(B) is not overbroad under the First Amendment. Pp. 292-304.

(a) 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"

Page 286

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. Pp. 292-297.

(b) As thus construed, the statute does not criminalize a substantial amount of protected expressive activity. Offers to engage in illegal transactions are categorically excluded from First Amendment protection. E.g., Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 388, 93 S.Ct. 2553, 37 L.Ed.2d 669. The Eleventh Circuit mistakenly believed that this exclusion extended only to commercial offers to provide or receive contraband. The exclusion's rationale, however, is based not on the less privileged status of commercial speech, but on the principle that offers to give or receive what it is unlawful to possess have no social value and thus enjoy no First Amendment protection. The constitutional defect in Free Speech Coalition 's pandering provision was that it went beyond pandering to prohibit possessing material that could not otherwise be proscribed. The Eleventh Circuit's erroneous conclusion led it to apply strict scrutiny to § 2252A(a)(3)(B), lodging three fatal objections that lack merit. Pp. 297-304.

2. Section 2252A(a)(3)(B) is not impermissibly vague under the Due Process [128 S.Ct. 1835] 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 standard less 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. Pp. 304-307.

444 F.3d 1286, reversed.

Page 287

Solicitor General Clement argued the cause for the United States. With him on the briefs were Assistant Attorney General Fisher, Deputy Solicitor General Dreeben, Deanne E. Maynard, and Deborah Watson

Richard J. Diaz argued the cause for respondent. With him on the brief were Ophelia M. Vails, Luis I. Guerra, and G. Richard Strafer[*]

Page 288

SCAIJA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, THOMAS, BKEYER, and AUTO, JJ., joined. STEVENS, J., filed a concurring opinion, in which BREYER, J., joined, post, p. 307. SOUTER, J., filed a dissenting opinion, in which GINSBURG, J., joined, post, p. 310.

OPINION

SCALIA, Justice.

Section 2252A(a)(3)(B) of Title 18, United States Code, criminalizes, in certain specified circumstances, the pandering or solicitation of child pornography. This case presents the question whether that statute is overbroad under the First Amendment or impermissibly vague under the Due Process Clause of the Fifth Amendment.

I

A

We have long held that obscene speech-sexually explicit material that violates fundamental notions of decency-is not protected by the First Amendment. [128 S.Ct. 1836] See Roth v. United States, 354 U.S. 476, 484-485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). But to protect explicit material that has social value, we have limited the scope of the obscenity exception, and have overturned convictions for the distribution of sexually graphic but nonobscene material. See Miller v. California, 413 U.S. 15, 23-24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); see also, e.g., Jenkins v. Georgia, 418 U.S. 153, 161, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974).

Over the last 25 years, we have confronted a related and overlapping category of proscribable speech: child pornography. See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002); Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990); New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). This consists of sexually explicit visual portrayals that feature children. We have held that a statute which proscribes the distribution of all child pornography, even material that does not qualify as obscenity, does not on its face violate the First Amendment. See id., at 751-753, 756-764, 102 S.Ct. 3348. Moreover, we have held that the government may criminalize the possession of child pornography, even though it may not criminalize the mere possession of obscene material involving adults. Compare

Page 289

Osborne, supra, at 111, 110 S.Ct. 1691, with Stanley v. Georgia, 394 U.S. 557, 568, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969).

The broad authority to proscribe child pornography is not, however, unlimited. Four Terms ago, we held facially overbroad two provisions of the federal Child Pornography Protection Act of 1996 (CPPA). Free Speech Coalition, 535 U.S., at 258, 122 S.Ct. 1389. The first of these 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 it contained only youthful-looking adult actors or virtual images of children generated by a computer. Id., at 239-241, 122 S.Ct. 1389 (quoting 18 U.S.C. §2256(8)(B)). This was invalid, we explained, because the child-protection rationale for speech restriction does not apply to materials produced without children. See 535 U.S., at 249-251, 254, 122 S.Ct. 1389. The second provision at issue in Free Speech Coalition criminalized the possession and distribution of material that had been pandered as child pornography, regardless of whether it actually was that. See id., at 257, 122 S.Ct. 1389 (citing 18 U.S.C. §2256(8)(D)). A person could thus face prosecution for possessing unobjectionable material that someone else had pandered. 535 U.S., at 258, 122 S.Ct. 1389. We held that this prohibition, which did "more than prohibit pandering," was also facially overbroad. Ibid.

After our decision in Free Speech Coalition, Congress went back to the drawing board and produced legislation with the unlikely title of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 117 Stat. 650. We shall refer to it as the Act. Section 503 of the Act amended 18 U.S.C. §2252A to add a new...

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