United States v. Williams

• Citation: 170 L.Ed.2d 650,2008 Daily Journal D.A.R. 7227,21 Fla. L. Weekly Fed. S 238,128 S.Ct. 1830,76 USLW 4275,08 Cal. Daily Op. Serv. 5989,553 U.S. 285
• Decision Date: 19 May 2008
• Docket Number: No. 06–694.,06–694.
• Parties: UNITED STATES, Petitioner, v. Michael WILLIAMS.
• Court: United States Supreme Court

08 Cal. Daily Op. Serv. 5989

128 S.Ct. 1830

170 L.Ed.2d 650

2008 Daily Journal D.A.R. 7227

21 Fla. L. Weekly Fed. S 238

553 U.S. 285

76 USLW 4275

UNITED STATES, Petitioner,

v.Michael WILLIAMS.

No. 06–694.

Supreme Court of the United States

Argued Oct. 30, 2007.Decided May 19, 2008.

Prior Version Recognized as Unconstitutional

18 U.S.C.A. § 2256(8)(B),(D)Negative Treatment Reconsidered18 U.S.C.A. § 2252A(a)(3)(B).

Syllabus ^*

After this Court found facially overbroad a federal statutory provision criminalizing 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. 1838 – 1845.

(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” 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. 1838 – 1841.

(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. 1841 – 1845.

2. 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. Pp. 1845 – 1847.

444 F.3d 1286, reversed.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C.J., and STEVENS, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined. STEVENS, J., filed a concurring opinion, in which BREYER, J., joined. SOUTER, J., filed a dissenting opinion, in which GINSBURG, J., joined.

Richard J. Diaz, for respondent.

Paul D. Clement, Solicitor General, Counsel of Record, Department of Justice, Washington, D.C., for petitioner.

Richard J. Diaz, Counsel of Record, Ophelia M. Valls, Luis I. Guerra, Coral Gables, FL, G. Richard Strafer, Miami, FL, for respondent.Paul D. Clement, Solicitor General, Counsel of Record, Alice S. Fisher, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Deanne E. Maynard, Assistant to the Solicitor General, Deborah Watson, Attorney, Department of Justice, Washington, D.C., for petitioner.Justice SCALIA delivered the opinion of the Court.

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. 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 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...