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.

I. 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.

II. 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."

III. 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."

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