After Respondent Williams sent a hyperlink containing pornographic images of children to an Internet chat room dedicated to child pornography, he was prosecuted under the PROTECT ACT (18 U.S.C. � 2252A(a)(5)(B)) for "pandering" material in a manner intending to cause another to believe that the material contains child pornography. Williams pled guilty but reserved the right to challenge whether the PROTECT Act was unconstitutionally overbroad and vague and thus interfered with First Amendment free speech. In particular, Williams argued that the statute criminalized speech about child pornography when the actual materials were not pornographic or did not exist. Williams further claimed that the statute similarly criminalized those who appear to be but are not actually discussing child pornography. The Eleventh Circuit Court held the PROTECT Act unconstitutional, and the United States government appealed. The United States argues that the PROTECT Act is neither overbroad nor vague because it only criminalizes speech which the First Amendment does not protect. It further claims that the statute requires intent and that the PROTECT Act is necessary to combat child pornography.
Questions as Framed for the Court by the Parties
Facts
On April 26, 2004, an undercover government agent entered an Internet chat room dedicated to child pornography. U.S. v. Williams 444 F.3d 1286, 1288 (11th Cir. 2006). After Michael Williams sent a public message to the chat room saying "Dad of toddler has 'good' pics of her an [sic] me for swap of your toddler pics," the agent initiated a private Internet conversation with Williams. Id. Williams and the agent first exchanged non-sexual photos of young girls. Id. The agent's photographs were of a college-aged female made to look like a ten-year-old girl through computer technology. Id. Williams requested explicit photographs of the girl from the agent, and when the agent did not provide any, he accused the agent of being a cop. Id. At that point, Williams returned to the Internet chat room and sent the message "Here room; I can put [a link to pictures because] I'm for real - she [the agent] can't." Id. at 1289. Attached to the message was a computer hyperlink which contained seven pictures of minors, age five to fifteen, engaging in sexually explicit conduct. Id. Government agents subsequently searched Williams' home and found twenty-two similar images on two computer hard drives. Id.
Williams was charged in the United States District Court for the Southern District of Florida with possession of child pornography under 18 U.S.C. � 2252A(a)(5)(B) and "pandering" material "in a manner that reflects the belief, or that is intended to cause another to believe," that the material contains illegal child pornography in violation of 18 U.S.C. � 2252A(a)(3)(B). Id. Pandering means "the catering to or exploitation of the weaknesses of others, especially to provide gratification for others' desires." Id. at 1289 n.2. Pandering statutes are most often associated with prostitution and punish those who promote prostitution rather than the prostitutes themselves. Id. While the language of � 2252A(a)(3)(B) does not include the term "pandering," Congress has referred to it and other obscenity statutes as "pandering provisions." Id.
Williams requested that the court dismiss the pandering charge, claiming that 18 U.S.C. � 2252A(a)(3)(B) was unconstitutionally overbroad and vague. Id. at 1289. While the trial court was considering his claim, Williams pled guilty to both counts but reserved the right to appeal his conviction on the ground that 18 U.S.C. � 2252A(a)(3)(B) was unconstitutional. Id. Williams received a prison sentence of sixty months for the pandering charge and sixty months for the possession charge, to be served simultaneously for a total of sixty months in prison. Id.
Williams appealed his sentence to the Eleventh Circuit Court of Appeals, again arguing that 18 U.S.C. � 2252A(a)(3)(B) was unconstitutionally overbroad and vague. U.S. v. Williams at 1288. The Eleventh Circuit agreed and declared the statute invalid. Id. The United States petitioned for a writ of certiorari on November 17, 2006, and on March 26, 2007, the Supreme Court agreed to hear the case. Official Docket.
Analysis
Legal Framework
In 1973, the Supreme Court held that obscenity is not protected speech under the First Amendment. Miller v. California, 413 U.S. 15, 36 (1973). While the Court acknowledged the right to possess obscene material in one's own home, Stanley v. Georgia, 394 U.S. 557, 568 (1969), it held that the government may constitutionally regulate obscene material in interstate commerce. United States v. Orito, 413 U.S. 139, 141-42 (1973). In the wake of these decisions, Congress enacted its first child pornography legislation, which prohibited individuals from employing minors in obscene materials. Protection of Children against Sexual Exploitation Act, 18 U.S.C. �� 2423, 2251-2253 (1978); United States v. Williams, 444 F.3d 1286, 1291 (11th Cir. 2006).
The Supreme Court directly confronted the issue of child pornography in 1982. New York v. Ferber, 458 U.S. 747 (1982); Williams, 444 F.3d at 1291. In Ferber, a unanimous Court declared that child pornography is not protected speech under the First Amendment. Id. at 764. The Court held that the government may constitutionally prohibit an individual from creating and promoting child pornography, even if the material is not "obscene" under Miller. Id. Following Ferber, Congress enacted the Child Protection Act of 1984, which "expanded the definition of child pornography to include non-obscene but sexually suggestive pictures of children." 18 U.S.C. �� 2251-2254, 2256, 2516 (1984); Williams, 444 F.3d at 1291.
Congress first confronted the problems concerning computer technology and child pornography in 1988. Williams, 444 F.3d at 1291. The Child Protection and Obscenity Enforcement Act prohibited an individual from using computers to transport, distribute, or receive child pornography. 18 U.S.C. �� 2251, 2252 (1988); Williams, 444 F.3d at 1291. In the 1990s, advances in computer-imaging technology made "virtual" child pornography a reality. Williams, 444 F.3d at 1292. In response, Congress passed the Child Pornography Prevention Act of 1996 ("CPPA"), which criminalized what "appear[ed] to be" child pornography, even if the material did not contain images of real children. 18 U.S.C. �� 2251 (1996); Williams, 444 F.3d at 1292. Furthermore, the CPPA's pandering provision prohibited a person from promoting images of sexually explicit conduct in a way that "conveys the impression" that the material contains child pornography. 18 U.S.C. � 2256(8)(D) (1996), Williams, 444 F.3d at 1292. However, in Ashcroft v. Free Speech Coalition, the Court struck down these provisions of the CPPA as unconstitutionally overbroad. 535 U.S. 234 (2002). In response to Free Speech Coalition, Congress passed the PROTECT Act of 2003 with a revised pandering provision, which is the provision at issue in this case. 18 U.S.C. � 2252A(a)(3)(B) (2003); Williams, 444 F.3d at 1292.
Overbreadth
A statutory provision is unconstitutionally overbroad if it prohibits a substantial amount of speech protected under the First Amendment. Williams, 444 F.3d at 1296. In Free Speech Coalition, the Supreme Court held that the CPPA's pandering provision rendered the content of the material virtually irrelevant. Free Speech Coalition, 535 U.S. at 237. While the provision required the material to be sexually explicit, it did not require that the material actually contain child pornography. Id. Consequently, the provision captured a substantial amount of sexually explicit material that is otherwise protected First Amendment speech. For example, "[e]ven if a film contains no sexually explicit scenes involving minors, it could be treated as child pornography if the title and trailers convey the impression that the scenes would be found in the movie." Id. In addition, the Court held that the "pandering provision" prohibited any person from possessing material conveyed as child pornography. Id. at 238. The provision, therefore, punished those who took no part in the marketing, or pandering, of the material.
The United States argues that the PROTECT Act remedies the CPPA's overbreadth problem. Brief for the U.S. at 15. The crux of the government's argument is that the new pandering provision does not capture any category of protected speech. Brief for the U.S. at 16. According to the government, the Court has consistently held that the First Amendment does not protect speech concerning illegal commercial transactions. Brief for the U.S. at 17. The government, therefore, maintains that the provision is narrowly tailored because it criminalizes "offers to buy, sell or trade" anything marketed as child pornography, which would be wholly unprotected illegal commercial transactions. Brief for the U.S. at 4. The government says this applies even where the purported materials are non-existent or do not actually contain child pornography. Brief for the U.S. at 28-31. The government contends that the First Amendment does not protect non-commercial efforts to buy, sell, or trade illegal child pornography. Brief for the U.S. 18-24. Furthermore, in repealing the provision that "defined child pornography to include a visual depiction that had been pandered as such," the government argues that the revised provision does not punish individuals who played no part in the pandering. Brief for the U.S. at 4.
Alternatively, the government argues that even if the pandering provision reached some protected speech, it would not justify invalidating the statute unless it reached a substantial amount of protected speech relative to the law's "plainly legitimate sweep." Brief for the U.S. at 38-43. According to the government, a few instances in which a person falsely or mistakenly claims to possess illegal child pornography could never be substantial in comparison to the breadth of the prohibited speech - speech that panders wholly unprotected child pornography. Brief for the U.S. at 40-41.
Williams, on the other hand, argues that the PROTECT Act's pandering provision does, in fact, capture protected speech. Brief for Williams at 7-22. He argues that the provision covers more than just pandering, because in addition to more straightforward language regarding buying and selling, it also uses words like "advertise," "promote," and "solicit". Id. at 10. Williams also points out that two people discussing their thoughts about child pornography without a nefarious purpose might run afoul of the law, as might a person who mistakenly or wantonly "brags" about material he doesn't in fact possess. Id. at 17-18. Furthermore, Williams argues that under the statute, the culpability of a speaker is measured not based on his own actual state of mind or intent, but on the impression that his audience has of his intent. Id. at 19. Thus, an individual can violate the law even when offering non-illegal material, if another person believes they have offered child pornography. Id. at 20. Williams suggests that as a result, an "infinite number" of types of speech could fall under the statute, including a significant amount of speech protected under the first amendment. Id. at 21.
Vagueness
A statute is unconstitutionally vague if a person of ordinary intelligence cannot determine what behavior the statute prohibits. Williams, 444 F.3d at 1305-1306. To pass a vagueness challenge, a statute must "provide explicit standards for those who apply it to avoid arbitrary and discriminatory enforcement." Id. In the First Amendment context, such standards are heightened to help prevent a chilling effect on free speech. Id. at 1306.
The Eleventh Circuit held the pandering provision unconstitutionally vague, finding that a person of ordinary intelligence cannot determine what it means to promote material "that reflects the belief, or that is intended to cause another to believe" that the material contains sexually explicit images of children. Id. The court further held that the provision does not contain an intent requirement, which grants law enforcement officers virtually unbridled discretion to determine what promoted material "reflects the belief" or intends "to cause another to believe" that the material is illegal child pornography. Id.
The government, however, argues first that the statute clearly proscribes Williams' conduct; therefore, he cannot complain about the "'vagueness of the law as applied to the conduct of others.'" Brief for the U.S. at 45, (citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982)). Nor can he complain about vagueness as applied to hypothetical scenarios when the statute passes constitutional muster in the vast majority of situations. Id. at 43. According to the government, the lower court made no effort to show that the statute's alleged vagueness applied to Williams' conduct. Id. at 44. The government asserts that since the statute clearly proscribed Williams' conduct, Williams had fair notice that it prohibited his behavior, and therefore he should be prevented from challenging the statute as vague. Id. at 45.
Second, the government claims that the statute is not vague as applied to others because it only punishes those individuals who intend to cause another to believe the purported material is child pornography. Id. at 46. The government asserts that the "reflects the belief" clause and the "intended to cause another to believe" clause contain both an objective and subjective intent requirement. Id. The government rejects the Court of Appeals conclusion that an e-mail entitled "little Janie in the bath - hubba, hubba!" would necessarily fall under the ambit of the pandering provision. Id. at 46-47. Furthermore, according to the government, nothing about the hypothetical implies that the speaker subjectively believed, or intended to cause the recipient to believe, that the e-mail contained sexually explicit images of minors. Id. Therefore, without more context, such as an email indicating who Janie is and what the speaker meant by "hubba, hubba," the statute does not cover this hypothetical. In other words, the crux of the government's argument is that "context is key." Id. at 47.
Williams counters that the pandering provision is unconstitutionally vague because it lacks an objective standard. Brief for Williams at 24. Williams agrees with the Eleventh Circuit's conclusion that a person of ordinary intelligence cannot determine what behavior the statute deems impermissible. See id. Williams also claims that the provision permits law enforcement officers to subjectively determine what material "reflects the belief, or is intended to cause another to believe" that it contains illegal child pornography. Id. Federal courts have a duty to construe statutes to avoid unconstitutional vagueness, but Williams claims that the pandering provision is "so fatally vague, it is incapable of correction or resurrection." Id. at 25.
Williams also disagrees with the government's contention that he cannot challenge the vagueness of the statute as applied to others. Id. Williams maintains that the lower court was not obligated to show that the purported vagueness applied to Williams' behavior because the court's analysis was concerned with the validity of the statute as a whole, not with an "as applied" challenge to Williams' particular conduct. Id. Therefore, Williams claims that the lower court's hypotheticals legitimately demonstrate why the pandering provision is unconstitutionally vague. Id. For example, Williams agrees with the Eleventh Circuit's conclusion that the provision does not require an inquiry "into the actual nature or even existence of [pornographic] images and provides no affirmative defense that the underlying materials are not, in fact, illegal child pornography." See id..; Williams, 444 F.3d at 1307.
Discussion
An estimated one million pornographic images of children are available on the Internet, and over 200 images are added daily. See Brief for the Lighted Candle Society And Family Leader Foundation as Amici Curiae of Petitioner at 3. These images include both virtual child pornography and actual child pornography. Actual child pornography contains images of real children engaged in sexual activity. See U.S. v. Williams 444 F.3d 1286, 1289 (11th Cir. 2006). Virtual child pornography portrays images made to look like children engaged in sexual activity. See id. Virtual child pornography is protected under the First Amendment because it does not involve the exploitation of real children. See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 256-57 (2002). Thus, virtual child pornography is legal. See id. The PROTECT Act (18 U.S.C. � 2252A(a)(3)(B)) criminalizes pandering actual child pornography, which includes attempting to misrepresent virtual child pornography as actual child pornography. A person convicted of pandering child pornography under the PROTECT Act faces five to twenty years in prison for a first conviction, and fifteen to forty years for subsequent convictions. See 18 U.S.C. � 2252A(b)(1).
Supported by twenty-eight states and eighteen members of Congress, the United States argues that the Eleventh Circuit wrongfully struck down the PROTECT Act because the statute does not impermissibly interfere with free speech. See generally Brief for the U.S. According to the United States, the PROTECT Act prohibits only two actions: the truthful and false advertising of actual child pornography. See id. at 12. Since the First Amendment protects neither truthful advertising of an illegal product nor false advertising, the PROTECT Act would not suppress protected speech. See id. The United States next argues that the PROTECT Act is not vague because it only criminalizes those who intentionally pander child pornography. See id. at 34. Finally, the United States asserts that the PROTECT Act is necessary to eliminate the market for child pornography. See id. at 21-24. In passing the PROTECT Act, Congress emphasized that defendants in criminal cases often claim their images are virtual, causing the government to prove the images involve actual children. See Petition for Cert. at 7. Congress found that, due to technological advances, it is increasingly difficult to distinguish actual child pornography from virtual child pornography. See id. The National Law Center for Children and Families et al. stress that this substantially increases the time and resources needed for each case. See Brief of the National Law Center for Children and Families, Stop Child Predators, The Klaaskids Foundation, The Jessica Marie Lunsford Foundation, and the Joyful Child Foundation as Amici Curiae of Petitioner at 10. Such an onerous process may deter prosecutors from pressing charges, thereby increasing the likelihood that defendants will elude punishment. See id.
Williams argues that the Eleventh Circuit rightfully struck down the PROTECT Act as unconstitutional because it criminalizes speech regarding child pornography rather than child pornography itself. See Brief for Williams at 8. A person could thus be penalized for offering child pornography when none is in their possession. See id. at 10. Someone could similarly be penalized for others' mistaken belief that they are pandering child pornography when they actually are offering non-sexual pictures of children or adult pornography. See id. at 15. For example, the Eleventh Circuit expressed concern in its opinion that parents could be prosecuted for distributing pictures of their children wearing pajamas with the misleading caption "good pictures of the kids in bed." See U.S. v. Williams 444 F.3d at 1306. The United States insists context is crucial, and that it would be clear in such a situation that the parents' pictures are not pornographic. See Brief for the U.S. at 47-48. However, the National Coalition Against Censorship and the First Amendment Project contend that "because of the highly inflammatory nature of wrongful charges of child pornography, even the innocent will suffer severe repercussions regardless of whether they are ultimately exonerated." See Brief of the National Coalition Against Censorship and the First Amendment Project as Amici Curiae of Respondent at 3 ("Amicus Brief for NCAC and FAP").
Furthermore, the Eleventh Circuit, the National Coalition Against Censorship and the First Amendment Project suggest that the PROTECT Act could criminalize movies such as American Beauty, which depict teenage characters engaged in sexual activity. See U.S. v. Williams 444 F.3d at 1293 n. 80; Amicus Brief for NCAC and FAP at 9-13. They insist that the Act criminalizes such movies even with the government's proposed intent standards because movie producers "intentionally seek to create the belief . . . that what is happening on the screen . . . is happening in reality." Amicus Brief for NCAC and FAP at 9. However, since movie producers rarely intend viewers to believe that the actors are underage, such movies likely would not fall under the statute. See Brief for the U.S. at 41. A more likely result of upholding the PROTECT Act would be to criminalize statements about such movies. The Free Speech Coalition and First Amendment Lawyers Association argue that critics and viewers often discuss such movies as though they depict actual teenagers engaging in sexual activity. See Brief of the Free Speech Coalition and First Amendment Lawyers Association as Amici Curiae of Respondent at 12-18. The United States admits that mistaken speech falls under the statute, which implies that some film criticism would become illegal. See Brief for the U.S. at 36. It claims that even fraudulent offers to buy or sell child pornography help sustain the illegal market for it. See Brief for the U.S. at 5. Prosecutors may use their discretion and not prosecute those who discuss movie characters without explicitly referring to the fact that they are fictional. However, if the Court upholds the PROTECT Act, members of the general public would have to be careful to avoid implying that such movies involve actual child pornography.
Conclusion
In this case, the Supreme Court will review Congress' most recent effort to eradicate child pornography. The Supreme Court will consider both whether the PROTECT Act prohibits some protected speech and the reasons behind the statute. A decision for Williams will uphold a broad First Amendment right to free speech. On the other hand, a decision for the United States will add a weapon to the government's arsenal in the fight against child pornography by upholding a statute which expands the government's ability to prosecute those involved in making and distributing child pornography.
Written by: Jeanna Composti & Allison Condon
Edited by: Molly Curren Rowles