Commentary: An anti-porn law that will survive?
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.”