US v. Williams

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Authorship: This page is maintained by Nicole Elam, a 2007 summer associate at Akin Gump.

Contents

[edit] Briefs and Documents

Docket: 06-694

Oral Argument: Transcript

Judgment:

Merits briefs

Amicus briefs

Certiorari Filings



[edit] Pre-Argument Articles

[edit] Argument Preview

On March 26, 2007, the U.S. Supreme Court granted certiorari in U.S. v.

Williams (06-694), a case involving the interplay between First Amendment rights and the constitutionality of the PROTECT Act of 2003. At issue in the case is 18 U.S.C. 2252A(a)(3)(B), which prohibits knowingly advertising, promoting, presenting, distributing or soliciting material in a manner that reflects the belief, or is intended to cause another to believe, that the material is illegal child pornography. The question presented is whether Section 2252A(a)(3)(B) is overly broad and impermissibly vague, and thus facially unconstitutional.

[edit] Background

Congress enacted Section 2252A(a)(3)(B) in the wake of Ashcroft v. Free Speech Coalition, in which the Court deemed unconstitutional two provisions in the Child Pornography Prevention Act of 1996 (CPPA) that expanded the definition of illegal child pornography. The Court held the provisions were overbroad, in violation of the First Amendment, because they included speech that was neither obscene under Miller v. California nor child pornography under New York v. Ferber. In addition, it punished those who took no part in the pandering, but instead merely possessed the prohibited materials.

After the Court’s decision in Free Speech Coalition, Congress enacted the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT Act) to address the problems in the CPPA identified by the Court. Specifically, Congress enacted §2252A(a)(3)(B) (known as the pandering provision), which provides that anyone who knowingly “advertises, promotes, presents, distributes, or solicits * * * any material or purported material that reflects the belief, or that is intended to cause another to believe, that the material or purported material” contains illegal child pornography commits a criminal offense. Congress made fifteen legislative findings explaining the rationale underlying the provisions – which, it explained, were intended to protect children by eliminating the widespread market in child pornography. In particular, Congress explained, the prohibition on “material that reflects the belief, or that is intended to cause another to believe,” was necessary because of the difficulty of proving that images depict real children as demanded by Free Speech Coalition. Congress found that since this Court’s decision in Free Speech Coalition, “defendants in child pornography cases have universally raised the contention that the images in question could be virtual,” thereby requiring the government to prove that the child is real in nearly every child pornography prosecution. According to Congress, because of technology and the Internet, uploaded or transferred images and/or images of real children disguised as computer-generated images create numerous difficulties when proving the child depicted is real.

As part of an undercover operation aimed at combating child exploitation on the Internet, a federal agent logged into a chat room dedicated to child pornography on April 26, 2004. The agent engaged Williams in a private Internet chat during which they swapped non-pornographic photographs. After repeated postings, Williams uploaded a computer hyperlink, which contained, among other things, seven images of actual minors approximately five to fifteen years old. The nude children in the images were engaging in sexually explicit conduct and/or displaying their genitals. Williams was charged with one count of pandering illegal child pornography in violation of Section 2252A(a)(3)(B) and one count of possessing child pornography in violation of Section 2252A(a)(5)(B).

Williams pleaded guilty to both counts, but reserved his right to challenge the constitutionality of the pandering provision. The district court denied Williams’s motion to dismiss, concluding that Section 2252A(a)(3)(B) was not unconstitutionally vague or overbroad. The Eleventh Circuit reversed in relevant part. In its view, the pandering provision was indeed overbroad and impermissibly vague because it criminalized the speech of someone who touts material as child pornography even when in fact it is either nonexistent or not pornographic. The court noted that in the wake of Free Speech Coalition, sexually explicit speech that is neither obscene nor the product of sexual abuse of a real minor retains First Amendment protections. Particularly, in addressing the overbreadth challenge, the court noted that the provision encompassed protected non-commercial speech because: 1) it covered advocacy speech without rising to the level of “immediate incitement” under Brandenburg v. Ohio and, 2) it punishes “a defendant’s beliefs that simulated depictions of children are real or that innocent depictions of children are salacious.” In addressing the vagueness challenge, the court also found it problematic that the statute lacked any intent requirement. In the court's view, the provision could apply to an e-mail entitled "Good pics of kids in bed" sent by a grandparent, with innocent pictures of grandchildren in pajamas attached.

[edit] Petition for Certiorari

The United States filed a petition for certiorari, which the Court granted on March 26, 2007. In the petition, the United States argued that the Eleventh Circuit misconstrued the law’s scope and erroneously relied on hypotheticals to conclude that the statute violated the First Amendment and due process vagueness principles. First, the government contended, review was warranted because the Eleventh Circuit had declared unconstitutional on its face a federal statute that reflects Congress’s efforts to comply with the Court’s decision in Free Speech Coalition. Second, the court misconstrued the scope of the provision, in which Congress targeted a particular form of unprotected speech: speech that proposes to distribute, or solicits the receipt of, material that is illegal to make or possess. Further, the statute contains both an objective test for identifying when the speech concerns such materials and a subjective knowledge requirement on the part of the speaker. Those requirements protect against improper application of the law and give it the requisite clarity. The court’s reliance on hypotheticals to reach its conclusion was gravely in error. In addition, even if part of a provision is vague, that vagueness does not render the entire statute unconstitutional. Finally, the Eleventh Circuit’s decision interferes with Congress’s efforts to suppress the market for child pornography.

Opposing certiorari, respondent Williams argued that Supreme Court review was not warranted because the Eleventh Circuit’s decision is both consistent with and supported by the Court’s precedents on the issues of vagueness and overbreadth. First, the provision’s use of the phrase “reflects the belief[] * * * or is intended to cause another to believe” is indistinguishable from the phrases “appears to be” and “conveys the impression” invalidated in Free Speech Coalition. Second, the provision prohibits a substantial amount of protected speech without providing sufficient evidence to support its government interest of banning virtual images. Lastly, using a hypothetical, Williams argued that the provision has the potential to criminalize “[a]mbiguous words which can be subjectively interpreted in many ways.”

In its reply brief, the United States picked apart the hypothetical, which – in its view – “illustrate[d] the [lower] court’s error.” The hypothetical statement “I’ve got some great juicy pictures of hot young babes” does not, the government explained, fall within the scope of the provision. First, a reasonable person could not conclude that the speaker believed he was offering illegal child pornography, or that the speaker intended those listeners to so believe. Furthermore, the speaker did not have the specific intent to traffic in child pornography.

[edit] Merits Briefs

The United States argues that Congress’s prohibition on offering or soliciting what purports to be unprotected child pornography is constitutional. Section 2252A(a)(3)(B) neither captures any protected speech nor is not overbroad. First, unprotected commercial and protected commercial speech in the form of offers or solicitations to sell, buy, or barter illegal contraband -- whether true, false or nonexistent -- do not gain First Amendment protections. The U.S. further states that even regulations on noncommercial speech are permitted when they further a compelling government interest.

On the other hand, Williams argues that Section 2252A(a)(3)(B) reaches constitutionally protected speech because offers or solicitations to sell, buy, or barter contraband – whether true or false – can be protected by the First Amendment. Further, the restriction covers both commercial and non-commercial speech, thereby amounting to a content-based restriction subject to strict scrutiny. Respondent also argues that the statute fails to consider whether the materials might actually be clean or non-existent. Second, the statute does not penalize the mens rea of the speaker, but instead criminalizes the speaker based on the mens rea of the audience. Under the statute, what matters is not the speaker’s intent, but instead the belief or speculation of his or her audience as to what the speaker seeks to sell, buy or barter.

Respondent further argues that non-commercial efforts to solicit, distribute or offer to distribute illegal contraband are protected by the First Amendment, and that the cases relied upon by the United States only address situations in which non-commercial speech could not be protected. Respondent argues that because the PROTECT Act does not criminalize the speech expressed in the pandering provisions, but rather the speech soliciting and promoting such material (regardless whether the material contains child pornography), the statute covers protected speech.

Second, the United States argues that the imminent-incitement test of Brandenburg v. Ohio applies to limitations on protected advocacy speech, but does not apply to regulations on direct offers to provide, or solicitations to receive, illegal contraband. Respondent counters that the principles of Brandenburg apply and Free Speech Coalition did not overrule it. Using the Court’s statutory interpretation precedents, the “promote” speech at issue under the statute is not so dissimilar from the term “advocacy” speech in Brandenburg as to render it inapplicable. Thus, applying Brandenburg to the statute forces recognition that non-commercial, non-inciteful speech cannot be criminalized.

Third, the United States argues that even if the provision is construed to capture some protected speech, it is not overbroad in relation to its plainly legitimate sweep. The U.S. notes that a statute is not facially overbroad unless its application to speech is not only real, but substantial in relation to the law’s legitimate sweep – a test that the court of appeals failed to apply. And, even if narrow circumstances could be imagined in which the provision captured protected speech, “the remedy would be an as-applied challenge rather than the radical step of facially invalidating the law.”

Conversely, Williams argues that the speech is overbroad in relation to its plain legitimate sweep because there is an infinite number of examples of protected speech that could be criminalized under the statute. Arguably, the implications of not facially invalidating the statute to allow Congress to re-write it are too risky when dealing with a First Amendment freedom. The statute is too overbroad and too vague, and would be too messy to adjudicate on a case-by-case or as-applied basis. In arguing that the statute is overbroad in a substantial way, Williams asserts that the statute captures protected speech because a speaker can offer or solicit legal materials, but be arrested for failing to use sufficiently descriptive words to identify the materials he or she is offering or soliciting. Moreover, Williams argues, the confusing and ambiguous words create an impermissible risk of suppression of ideas, such that it would be more prudent for a speaker to be silent than to express his or her ideas.

Finally, the United States argues that the provision is not impermissibly vague because it clearly reaches only its target: pandering or soliciting what purports to be unprotected child pornography. Further, due process requirements are met with the statute's incorporation of the subjective and objective test. The U.S. noted that the statute applies only when an objectively reasonable person would conclude that the speaker is offering or seeking real child pornography. In addition, the speaker must subjectively know that the material is represented in such a manner and must either have the belief or intend to cause another to believe that the material was child pornography.

Williams, on the other hand, argues that the provision fails to define the core phrases “reflects the belief” and “cause another to believe,” thereby allowing law enforcement officers unfettered discretion in applying and enforcing the law. The provision lacks a clear standard of clarity or an objective measure to educate the public as to what behavior is lawful versus what behavior is unlawful.

In the U.S's reply brief, it reiterates that the statute prohibits only offers to provide, or attempts to obtain, material that is, or is purported to be contraband – a category unprotected by the First Amendment. Persons covered by the statute are only those who knowingly propose or purport to propose an illegal transaction. That conduct is not constitutionally protected, regardless whether the underlying material exists and the transaction is commercial or noncommercial. In an effort to safeguard the prosecution of harmless speech, the statute contains two subjective mental elements and an objective requirement that the manner of offering or soliciting refers to child pornography.

[edit] Oral Argument Recap

  • Argument transcript available here

Lyle Denniston wrote the following for SCOTUSblog.

Driven by an obvious worry that child pornography is spreading rapidly on the Internet, and seeming to sense that some day, somehow they should uphold a law to deal with it, Supreme Court Justices did some public brainstorming Tuesday about how to write an opinion that would do just that. After spending about 20 minutes musing over hypotheticals that might suggest Congress went too far in 2003 in writing a new criminal law against Internet pornography that depicts real or computer-drawn children engaging in sex acts, the Justices then turned about and went so far in the other direction as to suggest they may want to curtail the First Amendment in order to save the law. Some of them actually toyed with the idea of casting aside the long-standing doctrine that an individual who may well have violated a law governing expression should be able to complain that it is unconstitutional because it might inhibit someone else’s free speech — the “overbreadth doctrine.”

This was the decidedly two-sided shape of the hearing on United States v. Williams (06-694) — an indication that it could take months of deliberation before the Court decides which way to go in the final ruling. Illustrating the cross-currents during the one-hour session, Solicitor General Paul D. Clement appeared to be beleaguered during the first portion, reaching for conciliatory suggestions as to how the law might be understood to have less sweep, while his adversary, Coral Gables, Fla., attorney Richard J. Diaz, was pressured unrelentingly in the second half, leading him to concede that maybe the law — though still problematic — did not reach as far as he had complained. It was not as if the Justices were being even-handed; rather, they sounded as if they were warming to the law’s validity the longer they talked about it.

The case addresses the latest attempt by Congress — several times frustrated by past defeats in court on the issue — to pass a child porn law that might survive constitutional scrutiny even though it might reach some expression that otherwise would be shielded by the First Amendment. This version goes by the name “PROTECT Act” — short for “Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act.” It was enacted four years ago, one year after the Supreme Court had struck down a 1996 version.

The new law criminalized pandering in child pornography, barring the promotion, presentation, distribution or solicitation of any material that is shown in a way to reflect the belief — or cause someone else to believe — that the actual or purported material does contain child pornography, even if it actually does not. Convicted under the law, Floridian Michael Williams was caught — in an undercover operation — offering on the Internet sexually explicit images of him and his daughter, and other images of children engaging in sex acts. He was sentenced to five years in prison. The Eleventh Circuit struck down the pandering part of his conviction, finding that that part of the PROTECT Act violated the First Amendment because it was overbroad and vague. The government has appealed, seeking to revive those clauses.

While the Solicitor General was at the podium, the Justices explored an array of hypotheticals, testing him on the law’s potential impact on movie critics — perhaps reviewing “Lolita,” makers or distributors of documentaries or newsreels that show the rape of children in a war zone, public school pupils trading “dirty pictures” and asking to see more, or householders who received child porn unsolicited in the mail and either told neighbors or the police about it.

After posing some of those scenarios, the Justices seemed incredulous that the PROTECT Act might cover them. Justice Stephen G. Breyer, for example, who mentioned the school students’ exchange of “dirty pictures,” told Clement that his broad view of the Act would “criminalize activity in school, and all over he place.” Breyer — joined by Chief Justice John G. Roberts, Jr. — said that the government’s brief had seemed to outline a narrower scope for the law than Clement was now offering. Justice Anthony M. Kennedy also wondered if there were anything in the language of the law, as Clement read it, that would limit the scope of the kind of promotional activity that would be criminalized.

To each one of the hypotheticals put before him, the Solicitor General argued that the Act would not apply — or, if it did, the claimed innocence of the activity could be used as a defense to an actual criminal prosecution. His heavy reliance upon the prospect of “as-applied” challenges as the way to curb any excessive reach of the law did not seem to mollify most of the Justices. (It was clear, from the remarks of Justices Antonin Scalia and Samuel A. Alito, Jr., that Clement and the law had their full support, and thus they joined efforts in trying to counter the negative reaction of some on the bench.)

After a time, Clement was putting emphasis on ways that the Court could interpret the law by reading its provisions in a more confined way, and emphasizing that violations of the law had to be based upon proof of both an objective test — a reasonable person test of what the law reached — and a subjective test — what the accused individual had intended about pandering or promoting child porn.

Williams’ lawyer, Diaz, opened with a fervent argument that the PROTECT Act would sweep so widely that it “punishes thought, belief and opinion,” and reaches even “materials that may not, in fact, exist” because someone offering or soliciting such materials could be prosecuted for trying to promote a fictitious depiction as if it were the real thing.

Soon, his argument was interrupted by a comment by Breyer, noting that the Solicitor General had countered every example cited in Diaz’s brief of the potential coverage of the law, refuting each claim that protected expression would be grasped by the Act. As it turned out, Breyer was actually beginning an exploration of how to craft an opinion that would list all the hypotheticals that the law does not cover, in order to uphold it as being narrowly confined. (Breyer, of course, insisted he was not commiting himself or the Court to any particular opinion.)

Before that process resumed, Diaz was given a lecture by Justice Scalia about how and why the First Amendment’s free speech protection does not embrace lying — his response to the lawyer’s argument that the Act would criminalize mere lying about what was in offered Internet material, by misrepresenting it as the real thing. He also was pressed, somewhat testily, by Justice Alito to come up with convincing examples to show that the law was overbroad in its reach.

After that exchange, Breyer outlined the opinion-writing approach he was thinking about. It would have an appendix listing the hypotheticals of expression that the law was claimed to reach, with the Solicitor General’s refutation that any would, in fact, be covered in actual prosecutions. It would suggest that the Court had found no examples of excessive breadth, Breyer suggested. Diaz said “That could be done,” and it would perhaps constitute “an affirmative defense.” But, he said, the list could not encompass every possible scenario, there would be other expression “you hadn’t thought of,” so some utterances would still be “chilled.”

Justice Kennedy stepped in, suggesting that “maybe it would be prudent to re-examine our overbreadth doctrine.” In this case, Kennedy said, the accused individual “knew what it was” that he was offering “and expressed that belief,” so maybe he should not be allowed to make the argument that the law would reach the expression of others. “You could do that,” Diaz said, “but it would mean carving another area of speech out of the First Amendment.” Chief Justice Roberts immediaely disagreed, saying it would not be carving out anything, but would simply be indicating that Williams could not rely on the impact on other people.

By this point, Diaz was appearing to be more willing to concede that the law could be interpreted so that it “would be more narrowly tailored,” although he continued to insist it would go on having a chilling effect on “freedom of thought.”

Justice David H. Souter picked up on Breyer’s notion of how to write an opinion, and said that, while “somewhere out there” the law might have an impact beyond the examples that were said not to be covered, those would not be sufficient to show “substantial overbreadth.” “That could be,” Diaz replied.

Justice Ruth Bader Ginsburg, who appeared to be the most skeptical about the PROTECT Act, ridiculed Breyer’s idea of spelling out the meaning of the law through an appendix listing what it did not cover. That, she said, would be rewriting the law, and the Court had not previously used an appendix to an opinion to spell out a law’s meaning. Justice Scalia chimed in that such an appendix would be “blatant dictum,” and used his response to suggest that the overbreadth doctrine itself rested upon dicta — an implication that it should not be regarded any longer as binding.

Souter tried to come to Breyer’s rescue, suggesting that a list of examples excluded from coverage could be written into the body of an opinion, as part of the legal rationale to show that the law did not have “substantial overbreadth.”

Kennedy returned to speculation about what to do with overbreadth doctrine during the Solicitor General’s brief rebuttal. He wondered if the Court could reject the doctrine in cases like this one, but retain it for other cases. Clement replied that he was not making an assault on the doctrine, but noted that the burden is on the challenger of a law to prove “substantial overbreadth,” emphasizing the word “substantial.” Justice Ginsburg had the last work on the subject, noting that the Court had often relied upon the doctrine in First Amendment cases — implying that it would be a considerable step to “toss [it] out.”</div>

[edit] Opinion Analysis

The opinion is available here.

Kevin Russell originally wrote the following for SCOTUSblog.

Based on the facts of the case, Michael William’s conviction would not seem problematic - he was caught offering to exchange photographs of adult men sexually molesting his 4-year-old daughter in exchange for other pictures of child pornography and, to substantiate his bona fides, posted on an internet chat site several pictures of children, aged 5 to 15, engaged in sexually explicit conduct. Although the Supreme Court today affirmed his conviction, the fact that his case ended up in the Court illustrates the special and complex nature of the Court’s First Amendment jurisprudence.

[edit] Background

Today’s decision considered a facial First Amendment challenge to the so-called “PROTECT Act” which is Congress’s latest attempt to attack the proliferation of child pornography on the internet. The statute subjects to criminal punishment any person who “knowingly … advertises, promotes, distributes, or solicits … 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.” 18 U.S.C. § 2252(a)(3)(B).

This might seem an exceedingly complicated and convoluted way to get a child pornography on the internet, but the complication arises in large part from the need to navigate the Supreme Court’s First Amendment jurisprudence. On the one hand, the Court has broadly construed the First Amendment’s protections to include not simply speech or written words, but also graphic depictions such as photographs and films (say, the depiction of the teenage lovers in Romeo and Juliet). On the other hand, the Court has carved out of that protection entirely graphic depictions of one special kind of human conduct - sex - which, as Justice Scalia explains today, legislatures may ban with impunity so long as the depiction is “obscene,” meaning “sexually explicit material that violates fundamental notions of decency.” At the same time, however, the Court has held that depictions that do not arise to the level of obscenity “has social value” and therefore First Amendment protection.

Unless it involves children. When it comes to involving children in sex acts, there’s no need to get into the fine distinction between what’s “obscene” and what is merely sexually explicit. The Court has long held that lawmakers’ overwhelming interest in protecting children from sexual exploitation overrides any countervailing First Amendment interest.

So long as they are real children. In a decision made possible and necessary by the advent of modern technology, the Supreme Court several terms ago ruled that the special exception for child pornography only applied when actual children were exploited in the making of the pornography. Instances of “simulated” child sexual conduct - computer generated or made by young-looking adults - are not judged under the super-special First Amendment exception for child pornography, but rather under the merely special First Amendment exception for obscenity.

The dispute among the justices in the majority and the dissent in today’s decision, it turns out, is based largely on the PROTECT Act’s application to transaction in such “simulated” child pornography.

But, one might wonder, what does this have to do with Michael Williams, who was peddling pictures of real kids? The answer involves another area of exceptionality in First Amendment jurisprudence. Ordinarily, as the Court has be eager to point out recently in a number of settings, litigants can succeed in bringing facial challenges to statutes only by showing that the Act is unconstitutional in all (or almost all) of its applications. But there is an exception for First Amendment challenges which, the Court reaffirmed today, may succeed when the statute prohibits “a substantial amount of protected speech” even if the speech the litigant is engaging in is clearly unprotected (e.g., involves true child pornography). Likewise, although defendants are usually permitted to challenge a statute as “unconstitutionally vague” only if it is unclear whether the defendant’s own conduct violated the statute, in the First Amendment context, a defendant may sometimes prevail by showing that although his conduct was clearly illegal under the statute, the Act’s application to other forms of conduct is so unclear that it should be struck down as a whole.

These exceptions leads to another: even though it is a firmly established judicial preference - one with constitutional underpinnings in Article III - to avoid elaborating the meaning of a law in the abstract (as opposed to construing it as applied to the concrete set of facts in a particular controversy), the First Amendment’s vagueness and overbreadth doctrines often require the Court to construe a statute’s meaning as applied to facts far removed from the ones at issue before it.

As a result, to decide Williams’ case, the Court was required today to scan the legislation broadly and decide how it applies in the full range of its applications and whether it trenches upon First Amendment rights in too many of those applications. And not unusually, but a bit ironically, the major dispute between the majority and the dissent was not over whether the First Amendment protects what Williams did, but how the statute applies in other cases, especially in cases involving simulated child pornography.

[edit] Decision

Seven Justices concluded that, given several glosses put on the statute by the majority opinion, the statute was neither overbroad nor unconstitutionally vague.

(An amusing aside: Justice Scalia begins the opinion with a dig at Congress’s penchant for silly statute titles intended to spell out a neat acronym (like “P.A.T.R.I.O.T. Act”): he noted that Congress had given the statute the “unlikely title of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act” and then, presumably much to the chagrin of the clever person who thought up words that would reduce to “PROTECT Act” explained that “We shall refer to it as the Act.”)

The Court began by giving the Act a narrowing construction, interpreting the Act to require, among other things, proof that the defendant subjectively believed that the materials he was either soliciting or purveying constituted materials that are either obscene or involve real children (i.e., materials that are not protected by the First Amendment). The Court, moreover, emphasized that as applied to materials that do not involve real children, the statute applies only to “sexually explicit conduct” which, the Court made clear, does not reach instances where “sexual intercourse . . . is merely suggested” - as in many R-rated movies - but instead applies where the “portrayal must cause a reasonable viewer to believe that the actors actually engaged in that conduct on camera.”

So construed, the Court concluded, the statute only prohibits solicitations or offers relating to materials that the defendant believes, and intends others to believe, are materials Congress could constitutionally prohibit anyone from possessing. The fact that the defendant might sometimes be mistaken and that the materials might actually be constitutionally protected, the Court held, does not matter. “Offers to engage in illegal transactions are categorically excluded from First Amendment protection.”

The Court further rejected the objection that the statute could prohibit non-commercial exchanges. “It would an odd constitutional principle,” Justice Scalia observed, “that permitted the government to prohibit offers to sell illegal drugs, but not offers to give them away for free.”Turning to the vagueness challenge, the Court acknowledged that it may be difficult in some cases to prove that the defendant acted “in a manner that reflects the belief” and “in a manner … that is intended to cause another to believe” that the materials at issue are real child pornography. But that, the Court held, does not make the statute unconstitutionally vague. “What renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminancy of precisely what that fact is.” In this case, the Court held, there “is no such indeterminancy here.”

Justices Stevens, joined by Justice Breyer, filed a concurrence, explaining his view that in addition to the other limiting constructions in the majority opinion, the statute should be read to “contain an element of lasciviousness” - i.e., with the purposes of “inciting sexual arousal.”

[edit] Dissent

Justice Souter, joined by Justice Ginsburg, dissented. Both agreed that the statute prohibited much that Congress clearly may prohibit, including actual child pornography and simulated material that is obscene (and, presumably, what Williams, in fact, did). But they believed that the statute went too far in allowing the prosecution of someone who proposes a transaction with respect to a non-obscene, but sexually explicit depiction of what appears to be (but is not) an actual child. Under prior precedent, Congress could not criminalize the possession of such material. Yet, the dissent complained, the Court has approved a statute that would criminalize a proposal to exchange that protected material, so long as the defendant believed, and acted to make others believe, that the material was unprotected, i.e., obscene or involving actual children.

The dissent worried that allowing Congress to prohibit speech based on the speaker’s subjective beliefs and understandings could create a dangerous precedent in other areas. It noted that in the past, the Court had approved sedition and similar laws based on the undesirability of the defendant’s thoughts, rather than the practical risks posed by his conduct. The PROTECT Act, the dissenters argued, “rests criminal prosecution for proposing transactions in expressive material on nothing more than a speaker’s statement about the material itself, a statement that may disclose no more than his own belief about the subjects respresented or his desire to foster belief in another.” The dissent further found that there was no proof that such suspect measures were necessary to ensure that juries do not “render[] exploitation of children unpunishable.”

[edit] Links and further information

[edit] Media Coverage

[edit] From the Blogosphere

[edit] SCOTUSblog

[edit] Video

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