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.

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.

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.

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.

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