The Volokh Conspiracy – BREAKING — Court Upholds Child Porn Law 7-2:: “This morning the Supreme Court rejected a challenge to the a federal law prohibiting soliciting the sale or purchase of child pornography by a vote of 7-2. Justice Scalia wrote the majority opinion. Justice Stevens wrote a concurrence, joined by Justice Breyer (both of whom also joined the Scalia majority). Justice Souter dissented, joined by Justice Ginsburg. The opinions in United States v. Williams are available here, courtesy of SCOTUSblog.”
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, 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 convic-
tion’s constitutionality. The District Court rejected his challenge, but
the Eleventh Circuit reversed, finding the statute both overbroad un-
der the First Amendment and impermissibly vague under the Due
Process Clause.
Held:
1. Section 2252A(a)(3)(B) is not overbroad under the First Amend-
ment. Pp. 6–18.
(a) A statute is facially invalid if it prohibits a substantial
amount of protected speech. Section 2252A(a)(3)(B) generally prohib-
its offers to provide and requests to obtain child pornography. It tar-
gets not the underlying material, but the collateral speech introduc-
ing such material into the child-pornography distribution network.
Its definition of material or purported material that may not be pan-
dered or solicited precisely tracks the material held constitutionally
proscribable in New York v. Ferber, 458 U. S. 747, and Miller v. Cali-
fornia, 413 U. S. 15: 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 ac-
companies or seeks to induce a child pornography transfer from one
person to another; (3) a phrase—“in a manner that reflects the be-
lief,” ibid.—that has both the subjective component that the defen-
dant must actually have held the “belief” that the material or pur-
ported 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 “in-
tend” 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. 6–11.
(b) As thus construed, the statute does not criminalize a substan-
tial amount of protected expressive activity. Offers to engage in ille-
gal transactions are categorically excluded from First Amendment
protection. E.g., Pittsburgh Press Co. v. Pittsburgh Comm’n on Hu-
man Relations, 413 U. S. 376, 388. 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 pos-
sess have no social value and thus enjoy no First Amendment protec-
tion. 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 Cir-
cuit’s erroneous conclusion led it to apply strict scrutiny to
§2252A(a)(3)(B), lodging three fatal objections that lack merit.
Pp. 11–18.
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 ordi-
nary intelligence fair notice of what is prohibited, or is so standard-
less that it authorizes or encourages seriously discriminatory en-
forcement. Hill v. Colorado, 530 U. S. 703, 732. 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. The Eleventh Circuit mis-
takenly 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 meas-
ure 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. There is no such indeterminacy here.
The statute’s requirements are clear questions of fact. It may be dif-
ficult 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. Pp. 18–21.
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.