United States v. Williams

(Slip Opinion) OCTOBER TERM, 2007 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v. WILLIAMS

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

No. 06–694. Argued October 30, 2007—Decided May 19, 2008

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

2 UNITED STATES v. WILLIAMS

Syllabus

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.

Cite as: 553 U. S. ____ (2008) 3

Syllabus

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.

Cite as: 553 U. S. ____ (2008) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–694

_________________

UNITED STATES, PETITIONER v. MICHAEL

WILLIAMS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[May 19, 2008]

JUSTICE SCALIA delivered the opinion of the Court.

Section 2252A(a)(3)(B) of Title 18, United States Code,

criminalizes, in certain specified circumstances, the pan-

dering or solicitation of child pornography. This case

presents the question whether that statute is overbroad

under the First Amendment or impermissibly vague under

the Due Process Clause of the Fifth Amendment.

I

A

We have long held that obscene speech—sexually ex-

plicit material that violates fundamental notions of de-

cency—is not protected by the First Amendment. See

Roth v. United States, 354 U. S. 476, 484–485 (1957). But

to protect explicit material that has social value, we have

limited the scope of the obscenity exception, and have

overturned convictions for the distribution of sexually

graphic but nonobscene material. See Miller v. California,

413 U. S. 15, 23–24 (1973); see also, e.g., Jenkins v. Geor-

gia, 418 U. S. 153, 161 (1974).

Over the last 25 years, we have confronted a related and

overlapping category of proscribable speech: child pornog-

2 UNITED STATES v. WILLIAMS

Opinion of the Court

raphy. See Ashcroft v. Free Speech Coalition, 535 U. S.

234 (2002); Osborne v. Ohio, 495 U. S. 103 (1990); New

York v. Ferber, 458 U. S. 747 (1982). This consists of

sexually explicit visual portrayals that feature children.

We have held that a statute which proscribes the distribu-

tion of all child pornography, even material that does not

qualify as obscenity, does not on its face violate the First

Amendment. See id., at 751–753, 756–764. Moreover, we

have held that the government may criminalize the pos-

session of child pornography, even though it may not

criminalize the mere possession of obscene material in-

volving adults. Compare Osborne, supra, at 111, with

Stanley v. Georgia, 394 U. S. 557, 568 (1969).

The broad authority to proscribe child pornography is

not, however, unlimited. Four Terms ago, we held facially

overbroad two provisions of the federal Child Pornography

Prevention Act of 1996 (CPPA). Free Speech Coalition, 535

U. S., at 258. The first of these banned the possession and

distribution of “ ‘any visual depiction’ ” that “ ‘is, or appears

to be, of a minor engaging in sexually explicit conduct,’ ”

even if it contained only youthful-looking adult actors or

virtual images of children generated by a computer. Id.,

at 239–241 (quoting 18 U. S. C. §2256(8)(B)). This was

invalid, we explained, because the child-protection ration-

ale for speech restriction does not apply to materials pro-

duced without children. See 535 U. S., at 249–251, 254.

The second provision at issue in Free Speech Coalition

criminalized the possession and distribution of material

that had been pandered as child pornography, regardless

of whether it actually was that. See id., at 257 (citing 18

U. S. C. §2256(8)(D)). A person could thus face prosecu-

tion for possessing unobjectionable material that someone

else had pandered. 535 U. S., at 258. We held that this

prohibition, which did “more than prohibit pandering,”

was also facially overbroad. Ibid.

After our decision in Free Speech Coalition, Congress

Cite as: 553 U. S. ____ (2008) 3

Opinion of the Court

went back to the drawing board and produced legislation

with the unlikely title of the Prosecutorial Remedies and

Other Tools to end the Exploitation of Children Today Act

of 2003, 117 Stat. 650. We shall refer to it as the Act.

Section 503 of the Act amended 18 U. S. C. §2252A to add

a new pandering and solicitation provision, relevant por-

tions of which now read as follows:

“(a) Any person who—

“(3) knowingly—

. . . . .

“(B) advertises, promotes, presents, distributes, or so-

licits through the mails, or in interstate or foreign

commerce by any means, including by computer, any

material or purported material in a manner that re-

flects 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,

. . . . .

“shall be punished as provided in subsection (b).”

§2252A(a)(3)(B) (2000 ed., Supp. V).

Section 2256(2)(A) defines “sexually explicit conduct” as

“actual or simulated—

“(i) sexual intercourse, including genital-genital, oral-

genital, anal-genital, or oral-anal, whether between

persons of the same or opposite sex;

“(ii) bestiality;

“(iii) masturbation;

“(iv) sadistic or masochistic abuse; or

“(v) lascivious exhibition of the genitals or pubic area

4 UNITED STATES v. WILLIAMS

Opinion of the Court

of any person.”

Violation of §2252A(a)(3)(B) incurs a minimum sentence of

5 years imprisonment and a maximum of 20 years. 18

U. S. C. §2252A(b)(1).

The Act’s express findings indicate that Congress was

concerned that limiting the child-pornography prohibition

to material that could be proved to feature actual children,

as our decision in Free Speech Coalition required, would

enable many child pornographers to evade conviction. See

§501(9), (10), 117 Stat. 677. The emergence of new tech-

nology and the repeated retransmission of picture files

over the Internet could make it nearly impossible to prove

that a particular image was produced using real chil-

dren—even though “[t]here is no substantial evidence that

any of the child pornography images being trafficked today

were made other than by the abuse of real children,”

virtual imaging being prohibitively expensive. §501(5),

(7), (8), (11), id., at 676–678; see also Dept. of Justice,

Office of Community Oriented Policing Services, R.

Wortley & S. Smallbone, Child Pornography on the Inter-

net 9 (May 2006), on line at hhtp://www.cops.

usdoj.gov/mime/open.pdf?Item=1729 (hereinafter Child

Pornography on the Internet) (as visited Jan. 7, 2008, and

available in Clerk of Court’s case file).

B

The following facts appear in the opinion of the Elev-

enth Circuit, 444 F. 3d 1286, 1288 (2006). On April 26,

2004, respondent Michael Williams, using a sexually

explicit screen name, signed in to a public Internet chat

room. A Secret Service agent had also signed in to the

chat room under the moniker “Lisa n Miami.” The agent

noticed that Williams had posted a message that read:

“Dad of toddler has ‘good’ pics of her an [sic] me for swap

of your toddler pics, or live cam.” The agent struck up a

conversation with Williams, leading to an electronic ex-

Cite as: 553 U. S. ____ (2008) 5

Opinion of the Court

change of nonpornographic pictures of children. (The

agent’s picture was in fact a doctored photograph of an

adult.) Soon thereafter, Williams messaged that he had

photographs of men molesting his 4-year-old daughter.

Suspicious that “Lisa n Miami” was a law-enforcement

agent, before proceeding further Williams demanded that

the agent produce additional pictures. When he did not,

Williams posted the following public message in the chat

room: “HERE ROOM; I CAN PUT UPLINK CUZ IM FOR

REAL—SHE CANT.” Appended to this declaration was a

hyperlink that, when clicked, led to seven pictures of

actual children, aged approximately 5 to 15, engaging in

sexually explicit conduct and displaying their genitals.

The Secret Service then obtained a search warrant for

Williams’s home, where agents seized two hard drives

containing at least 22 images of real children engaged in

sexually explicit conduct, some of it sadomasochistic.

Williams was charged with one count of pandering child

pornography under §2252A(a)(3)(B) and one count of

possessing child pornography under §2252A(a)(5)(B). He

pleaded guilty to both counts but reserved the right to

challenge the constitutionality of the pandering conviction.

The District Court rejected his challenge, and sentenced

him to concurrent 60-month sentences on the two counts.

No. 04–20299–CR–MIDDLEBROOKS (SD Fla., Aug. 20,

2004), App. B to Pet. for Cert. 46a–69a. The United States

Court of Appeals for the Eleventh Circuit reversed the

pandering conviction, holding that the statute was both

overbroad and impermissibly vague. 444 F. 3d, at 1308–

1309.1

——————

1 Williams also challenged his sentence for the possession conviction

on the ground that he was entitled to resentencing in light of our

decision in United States v. Booker, 543 U. S. 220 (2005). See 444 F. 3d,

at 1307–308. The Eleventh Circuit rejected this challenge and there-

fore affirmed his 60-month sentence despite reversing his pandering

conviction. See id., at 1309. Although Williams did not receive a

6 UNITED STATES v. WILLIAMS

Opinion of the Court

We granted certiorari. 549 U. S. ___ (2007).

II

A

According to our First Amendment overbreadth doc-

trine, a statute is facially invalid if it prohibits a substan-

tial amount of protected speech. The doctrine seeks to

strike a balance between competing social costs. Virginia

v. Hicks, 539 U. S. 113, 119–120 (2003). On the one hand,

the threat of enforcement of an overbroad law deters

people from engaging in constitutionally protected speech,

inhibiting the free exchange of ideas. On the other hand,

invalidating a law that in some of its applications is per-

fectly constitutional—particularly a law directed at con-

duct so antisocial that it has been made criminal—has

obvious harmful effects. In order to maintain an appro-

priate balance, we have vigorously enforced the require-

ment that a statute’s overbreadth be substantial, not only

in an absolute sense, but also relative to the statute’s

plainly legitimate sweep. See Board of Trustees of State

Univ. of N. Y. v. Fox, 492 U. S. 469, 485 (1989); Broadrick

v. Oklahoma, 413 U. S. 601, 615 (1973). Invalidation for

overbreadth is “ ‘ “strong medicine” ’ ” that is not to be

“casually employed.” Los Angeles Police Dept. v. United

Reporting Publishing Corp., 528 U. S. 32, 39 (1999) (quot-

ing Ferber, 458 U. S., at 769).

The first step in overbreadth analysis is to construe the

challenged statute; it is impossible to determine whether a

statute reaches too far without first knowing what the

statute covers. Generally speaking, §2252A(a)(3)(B) pro-

hibits offers to provide and requests to obtain child por-

nography. The statute does not require the actual exis-

——————

reduced sentence as a result of his appeal, this case is not moot. We

held in Benton v. Maryland, 395 U. S. 784 (1969), that “there is no

jurisdictional bar to consideration of challenges to multiple convictions,

even though concurrent sentences were imposed.” Id., at 791.

Cite as: 553 U. S. ____ (2008) 7

Opinion of the Court

tence of child pornography. In this respect, it differs from

the statutes in Ferber, Osborne, and Free Speech Coalition,

which prohibited the possession or distribution of child

pornography. Rather than targeting the underlying mate-

rial, this statute bans the collateral speech that introduces

such material into the child-pornography distribution

network. Thus, an Internet user who solicits child pornog-

raphy from an undercover agent violates the statute, even

if the officer possesses no child pornography. Likewise, a

person who advertises virtual child pornography as de-

picting actual children also falls within the reach of the

statute.

The statute’s definition of the material or purported

material that may not be pandered or solicited precisely

tracks the material held constitutionally proscribable in

Ferber and Miller: obscene material depicting (actual or

virtual) children engaged in sexually explicit conduct, and

any other material depicting actual children engaged in

sexually explicit conduct. See Free Speech Coalition, 535

U. S., at 245–246 (stating that the First Amendment does

not protect obscenity or pornography produced with actual

children); id., at 256 (holding invalid the challenged provi-

sion of the CPPA because it “cover[ed] materials beyond

the categories recognized in Ferber and Miller”).

A number of features of the statute are important to our

analysis:

First, the statute includes a scienter requirement. The

first word of §2252A(a)(3)—“knowingly”—applies to both

of the immediately following subdivisions, both the previ-

ously existing §2252A(a)(3)(A)2 and the new §2252A(a)

(3)(B) at issue here. We think that the best reading of the

term in context is that it applies to every element of the

——————

2 Section 2252A(a)(3)(A) (2000 ed., Supp. V) reads: “reproduces any

child pornography for distribution through the mails, or in interstate or

foreign commerce by any means, including by computer.”

8 UNITED STATES v. WILLIAMS

Opinion of the Court

two provisions. This is not a case where grammar or

structure enables the challenged provision or some of its

parts to be read apart from the “knowingly” requirement.

Here “knowingly” introduces the challenged provision

itself, making clear that it applies to that provision in its

entirety; and there is no grammatical barrier to reading it

that way.

Second, the statute’s string of operative verbs—

“advertises, promotes, presents, distributes, or solicits”—is

reasonably read to have a transactional connotation. That

is to say, the statute penalizes speech that accompanies or

seeks to induce a transfer of child pornography—via re-

production or physical delivery—from one person to an-

other. For three of the verbs, this is obvious: advertising,

distributing, and soliciting are steps taken in the course of

an actual or proposed transfer of a product, typically but

not exclusively in a commercial market. When taken in

isolation, the two remaining verbs—“promotes” and “pre-

sents”—are susceptible of multiple and wide-ranging

meanings. In context, however, those meanings are nar-

rowed by the commonsense canon of noscitur a sociis—

which counsels that a word is given more precise content

by the neighboring words with which it is associated. See

Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961); 2A

N. Singer & J. Singer, Sutherland Statutes and Statutory

Construction §47.16 (7th ed. 2007). “Promotes,” in a list

that includes “solicits,” “distributes,” and “advertises,” is

most sensibly read to mean the act of recommending

purported child pornography to another person for his

acquisition. See American Heritage Dictionary 1403 (4th

ed. 2000) (def. 4: “To attempt to sell or popularize by ad-

vertising or publicity”). Similarly, “presents,” in the con-

text of the other verbs with which it is associated, means

showing or offering the child pornography to another

person with a view to his acquisition. See id., at 1388 (def.

3a: “To make a gift or award of”). (The envisioned acquisi-

Cite as: 553 U. S. ____ (2008) 9

Opinion of the Court

tion, of course, could be an electronic one, for example

reproduction of the image on the recipient’s computer

screen.)

To be clear, our conclusion that all the words in this list

relate to transactions is not to say that they relate to

commercial transactions. One could certainly “distribute”

child pornography without expecting payment in return.

Indeed, in much Internet file sharing of child pornography

each participant makes his files available for free to other

participants—as Williams did in this case. “Distribution

may involve sophisticated pedophile rings or organized

crime groups that operate for profit, but in many cases, is

carried out by individual amateurs who seek no financial

reward.” Child Pornography on the Internet 9. To run

afoul of the statute, the speech need only accompany or

seek to induce the transfer of child pornography from one

person to another.

Third, the phrase “in a manner that reflects the belief”

includes both subjective and objective components. “[A]

manner that reflects the belief” is quite different from “a

manner that would give one cause to believe.” The first

formulation suggests that the defendant must actually

have held the subjective “belief” that the material or pur-

ported material was child pornography. Thus, a misde-

scription that leads the listener to believe the defendant is

offering child pornography, when the defendant in fact

does not believe the material is child pornography, does

not violate this prong of the statute. (It may, however,

violate the “manner . . . that is intended to cause another

to believe” prong if the misdescription is intentional.)

There is also an objective component to the phrase “man-

ner that reflects the belief.” The statement or action must

objectively manifest a belief that the material is child

pornography; a mere belief, without an accompanying

statement or action that would lead a reasonable person

to understand that the defendant holds that belief, is

10 UNITED STATES v. WILLIAMS

Opinion of the Court

insufficient.

Fourth, the other key phrase, “in a manner . . . that is

intended to cause another to believe,” contains only a

subjective element: The defendant must “intend” that the

listener believe the material to be child pornography, and

must select a manner of “advertising, promoting, present-

ing, distributing, or soliciting” the material that he thinks

will engender that belief—whether or not a reasonable

person would think the same. (Of course in the ordinary

case the proof of the defendant’s intent will be the fact

that, as an objective matter, the manner of “advertis-

ing, promoting, presenting, distributing, or soliciting”

plainly sought to convey that the material was child

pornography.)

Fifth, the definition of “sexually explicit conduct” (the

visual depiction of which, engaged in by an actual minor,

is covered by the Act’s pandering and soliciting prohibition

even when it is not obscene) is very similar to the defini-

tion of “sexual conduct” in the New York statute we up-

held against an overbreadth challenge in Ferber. That

defined “sexual conduct” as “ ‘actual or simulated sexual

intercourse, deviate sexual intercourse, sexual bestiality,

masturbation, sado-masochistic abuse, or lewd exhibition

of the genitals.’ ” 458 U. S., at 751. Congress used essen-

tially the same constitutionally approved definition in the

present Act. If anything, the fact that the defined term

here is “sexually explicit conduct,” rather than (as in Fer-

ber) merely “sexual conduct,” renders the definition more

immune from facial constitutional attack. “[S]imulated

sexual intercourse” (a phrase found in the Ferber defini-

tion as well) is even less susceptible here of application to

the sorts of sex scenes found in R-rated movies—which

suggest that intercourse is taking place without explicitly

depicting it, and without causing viewers to believe that

the actors are actually engaging in intercourse. “Sexually

explicit conduct” connotes actual depiction of the sex act

Cite as: 553 U. S. ____ (2008) 11

Opinion of the Court

rather than merely the suggestion that it is occurring.

And “simulated” sexual intercourse is not sexual inter-

course that is merely suggested, but rather sexual inter-

course that is explicitly portrayed, even though (through

camera tricks or otherwise) it may not actually have oc-

curred. The portrayal must cause a reasonable viewer to

believe that the actors actually engaged in that conduct on

camera. Critically, unlike in Free Speech Coalition,

§2252A(a)(3)(B)(ii)’s requirement of a “visual depiction of

an actual minor” makes clear that, although the sexual

intercourse may be simulated, it must involve actual

children (unless it is obscene). This change eliminates any

possibility that virtual child pornography or sex between

youthful-looking adult actors might be covered by the term

“simulated sexual intercourse.”

B

We now turn to whether the statute, as we have con-

strued it, criminalizes a substantial amount of protected

expressive activity.

Offers to engage in illegal transactions are categorically

excluded from First Amendment protection. Pittsburgh

Press Co. v. Pittsburgh Comm’n on Human Relations, 413

U. S. 376, 388 (1973); Giboney v. Empire Storage & Ice Co.,

336 U. S. 490, 498 (1949). One would think that this

principle resolves the present case, since the statute

criminalizes only offers to provide or requests to obtain

contraband—child obscenity and child pornography in-

volving actual children, both of which are proscribed, see

18 U. S. C. §1466A(a), §2252A(a)(5)(B) (2000 ed., Supp. V),

and the proscription of which is constitutional, see Free

Speech Coalition, 535 U. S., at 245–246, 256. The Elev-

enth Circuit, however, believed that the exclusion of First

Amendment protection extended only to commercial offers

to provide or receive contraband: “Because [the statute] is

not limited to commercial speech but extends also to non-

12 UNITED STATES v. WILLIAMS

Opinion of the Court

commercial promotion, presentation, distribution, and

solicitation, we must subject the content-based restriction

of the PROTECT Act pandering provision to strict scrutiny

. . . .” 444 F. 3d, at 1298.

This mistakes the rationale for the categorical exclusion.

It is based not on the less privileged First Amendment

status of commercial speech, see Central Hudson Gas &

Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557,

562–563 (1980), but on the principle that offers to give or

receive what it is unlawful to possess have no social value

and thus, like obscenity, enjoy no First Amendment pro-

tection. See Pittsburgh Press, supra, at 387–389.3 Many

long established criminal proscriptions—such as laws

against conspiracy, incitement, and solicitation—

criminalize speech (commercial or not) that is intended to

induce or commence illegal activities. See, e.g., ALI,

Model Penal Code §5.02(1) (1985) (solicitation to commit a

crime); §5.03(1)(a) (conspiracy to commit a crime). Offers

to provide or requests to obtain unlawful material,

whether as part of a commercial exchange or not, are

similarly undeserving of First Amendment protection. It

would be an odd constitutional principle that permitted

the government to prohibit offers to sell illegal drugs, but

not offers to give them away for free.

To be sure, there remains an important distinction

——————

3 In Pittsburgh Press, the newspaper argued that we should afford

that category of commercial speech which consists of help-wanted ads

the same level of First Amendment protection as noncommercial

speech, because of its important information-exchange function. We

replied: “Whatever the merits of this contention may be in other con-

texts, it is unpersuasive in this case. Discrimination in employment is

not only commercial activity, it is illegal commercial activity . . . . We

have no doubt that a newspaper constitutionally could be forbidden to

publish a want ad proposing a sale of narcotics or soliciting prosti-

tutes.” 413 U. S., at 388. The import of this response is that noncom-

mercial proposals to engage in illegal activity have no greater protec-

tion than commercial proposals to do so.

Cite as: 553 U. S. ____ (2008) 13

Opinion of the Court

between a proposal to engage in illegal activity and the

abstract advocacy of illegality. See Brandenburg v. Ohio,

395 U. S. 444, 447–448 (1969) (per curiam); see also

NAACP v. Claiborne Hardware Co., 458 U. S. 886, 928–

929 (1982). The Act before us does not prohibit advocacy

of child pornography, but only offers to provide or requests

to obtain it. There is no doubt that this prohibition falls

well within constitutional bounds. The constitutional

defect we found in the pandering provision at issue in Free

Speech Coalition was that it went beyond pandering to

prohibit possession of material that could not otherwise be

proscribed. 535 U. S., at 258.

In sum, we hold that offers to provide or requests to

obtain child pornography are categorically excluded from

the First Amendment. Since the Eleventh Circuit errone-

ously concluded otherwise, it applied strict scrutiny to

§2252A(a)(3)(B), lodging three fatal objections. We ad-

dress these objections because they could be recast as

arguments that Congress has gone beyond the categorical

exception.

The Eleventh Circuit believed it a constitutional diffi-

culty that no child pornography need exist to trigger the

statute. In its view, the fact that the statute could punish

a “braggart, exaggerator, or outright liar” rendered it

unconstitutional. 444 F. 3d, at 1298. That seems to us a

strange constitutional calculus. Although we have held

that the government can ban both fraudulent offers, see,

e.g., Illinois ex rel. Madigan v. Telemarketing Associates,

Inc., 538 U. S. 600, 611–612 (2003), and offers to provide

illegal products, the Eleventh Circuit would forbid the

government from punishing fraudulent offers to provide

illegal products. We see no logic in that position; if any-

thing, such statements are doubly excluded from the First

Amendment.

The Eleventh Circuit held that under Brandenburg, the

“non-commercial, non-inciteful promotion of illegal child

14 UNITED STATES v. WILLIAMS

Opinion of the Court

pornography” is protected, and §2252A(a)(3)(B) therefore

overreaches by criminalizing the promotion of child por-

nography. 444 F. 3d, at 1298. As we have discussed

earlier, however, the term “promotes” does not refer to

abstract advocacy, such as the statement “I believe that

child pornography should be legal” or even “I encourage

you to obtain child pornography.” It refers to the recom-

mendation of a particular piece of purported child pornog-

raphy with the intent of initiating a transfer.

The Eleventh Circuit found “particularly objectionable”

the fact that the “reflects the belief” prong of the statute

could ensnare a person who mistakenly believes that

material is child pornography. Ibid. This objection has

two conceptually distinct parts. First, the Eleventh Cir-

cuit thought that it would be unconstitutional to punish

someone for mistakenly distributing virtual child pornog-

raphy as real child pornography. We disagree. Offers to

deal in illegal products or otherwise engage in illegal

activity do not acquire First Amendment protection when

the offeror is mistaken about the factual predicate of his

offer. The pandering and solicitation made unlawful by

the Act are sorts of inchoate crimes—acts looking toward

the commission of another crime, the delivery of child

pornography. As with other inchoate crimes—attempt

and conspiracy, for example—impossibility of completing

the crime because the facts were not as the defendant

believed is not a defense. “All courts are in agreement

that what is usually referred to as ‘factual impossibility’ is

no defense to a charge of attempt.” 2 W. LaFave, Substan-

tive Criminal Law §11.5(a)(2) (2d ed. 2003). (The author

gives as an example “the intended sale of an illegal drug

[that] actually involved a different substance.” Ibid.) See

also United States v. Hamrick, 43 F. 3d 877, 885 (CA4

1995) (en banc) (holding that impossibility is no defense to

attempt and citing the holdings of four other Circuits);

ALI, Model Penal Code §5.01, Comment (in attempt prose-

Cite as: 553 U. S. ____ (2008) 15

Opinion of the Court

cutions “the defendant’s conduct should be measured

according to the circumstances as he believes them to be,

rather than the circumstances as they may have existed in

fact”).

Under this heading the Eleventh Circuit also thought

that the statute could apply to someone who subjectively

believes that an innocuous picture of a child is “lascivi-

ous.” (Clause (v) of the definition of “sexually explicit

conduct” is “lascivious exhibition of the genitals or pubic

area of any person.”) That is not so. The defendant must

believe that the picture contains certain material, and

that material in fact (and not merely in his estimation)

must meet the statutory definition. Where the material at

issue is a harmless picture of a child in a bathtub and the

defendant, knowing that material, erroneously believes

that it constitutes a “lascivious display of the genitals,” the

statute has no application.

Williams and amici raise other objections, which dem-

onstrate nothing so forcefully as the tendency of our over-

breadth doctrine to summon forth an endless stream of

fanciful hypotheticals. Williams argues, for example, that

a person who offers nonpornographic photographs of

young girls to a pedophile could be punished under the

statute if the pedophile secretly expects that the pictures

will contain child pornography. Brief for Respondent 19–

20. That hypothetical does not implicate the statute,

because the offeror does not hold the belief or intend the

recipient to believe that the material is child pornography.

Amici contend that some advertisements for main-

stream Hollywood movies that depict underage characters

having sex violate the statute. Brief for Free Speech

Coalition et al. as Amici Curiae 9–18. We think it implau-

sible that a reputable distributor of Hollywood movies,

such as Amazon.com, believes that one of these films

contains actual children engaging in actual or simulated

sex on camera; and even more implausible that Ama-

16 UNITED STATES v. WILLIAMS

Opinion of the Court

zon.com would intend to make its customers believe such a

thing. The average person understands that sex scenes in

mainstream movies use nonchild actors, depict sexual

activity in a way that would not rise to the explicit level

necessary under the statute, or, in most cases, both.

There was raised at oral argument the question whether

turning child pornography over to the police might not

count as “present[ing]” the material. See Tr. of Oral Arg.

9–11. An interpretation of “presents” that would include

turning material over to the authorities would of course be

self-defeating in a statute that looks to the prosecution of

people who deal in child pornography. And it would effec-

tively nullify §2252A(d), which provides an affirmative

defense to the possession ban if a defendant promptly

delivers child pornography to a law-enforcement agency.

(The possession offense would simply be replaced by a

pandering offense for delivering the material to law-

enforcement officers.) In any event, the verb “present”—

along with “distribute” and “advertise,” as well as “give,”

“lend,” “deliver,” and “transfer”—was used in the defini-

tion of “promote” in Ferber. See 458 U. S., at 751 (quoting

N. Y. Penal Law Ann. §263.15 (McKinney 1980)). Despite

that inclusion, we had no difficulty concluding that the

New York statute survived facial challenge. And in the

period since Ferber, despite similar statutory definitions in

other state statutes, see, e.g., Alaska Stat. §11.61.125(d)

(2006), Del. Code Ann., Title 11, §1109(5) (2007), we are

aware of no prosecution for giving child pornography to

the police. We can hardly say, therefore, that there is a

“realistic danger” that §2252A(a)(3)(B) will deter such

activity. New York State Club Assn., Inc. v. City of New

York, 487 U. S. 1, 11 (1988) (citing Thornhill v. Alabama,

310 U. S. 88, 97–98 (1940)).

It was also suggested at oral argument that the statute

might cover documentary footage of atrocities being com-

mitted in foreign countries, such as soldiers raping young

Cite as: 553 U. S. ____ (2008) 17

Opinion of the Court

children. See Tr. of Oral Arg. 5-7. Perhaps so, if the

material rises to the high level of explicitness that we

have held is required. That sort of documentary footage

could of course be the subject of an as-applied challenge.

The courts presumably would weigh the educational inter-

est in the dissemination of information about the atrocities

against the government’s interest in preventing the distri-

bution of materials that constitute “a permanent record” of

the children’s degradation whose dissemination increases

“the harm to the child.” Ferber, 458 U. S., at 759. Assum-

ing that the constitutional balance would have to be struck

in favor of the documentary, the existence of that excep-

tion would not establish that the statute is substantially

overbroad. The “mere fact that one can conceive of some

impermissible applications of a statute is not sufficient to

render it susceptible to an overbreadth challenge.” Mem-

bers of City Council of Los Angeles v. Taxpayers for Vin-

cent, 466 U. S. 789, 800 (1984). In the vast majority of its

applications, this statute raises no constitutional problems

whatever.

Finally, the dissent accuses us of silently overruling our

prior decisions in Ferber and Free Speech Coalition. See

post, at 12. According to the dissent, Congress has made

an end-run around the First Amendment’s protection of

virtual child pornography by prohibiting proposals to

transact in such images rather than prohibiting the im-

ages themselves. But an offer to provide or request to

receive virtual child pornography is not prohibited by the

statute. A crime is committed only when the speaker

believes or intends the listener to believe that the subject

of the proposed transaction depicts real children. It is

simply not true that this means “a protected category of

expression [will] inevitably be suppressed,” post, at 13.

Simulated child pornography will be as available as ever,

so long as it is offered and sought as such, and not as real

child pornography. The dissent would require an excep-

18 UNITED STATES v. WILLIAMS

Opinion of the Court

tion from the statute’s prohibition when, unbeknownst to

one or both of the parties to the proposal, the completed

transaction would not have been unlawful because it is

(we have said) protected by the First Amendment. We fail

to see what First Amendment interest would be served by

drawing a distinction between two defendants who at-

tempt to acquire contraband, one of whom happens to be

mistaken about the contraband nature of what he would

acquire. Is Congress forbidden from punishing those who

attempt to acquire what they believe to be national-

security documents, but which are actually fakes? To ask

is to answer. There is no First Amendment exception from

the general principle of criminal law that a person at-

tempting to commit a crime need not be exonerated be-

cause he has a mistaken view of the facts.

III

As an alternative ground for facial invalidation, the

Eleventh Circuit held that §2252A(a)(3)(B) is void for

vagueness. Vagueness doctrine is an outgrowth not of the

First Amendment, but of the Due Process Clause of the

Fifth Amendment. A conviction fails to comport with due

process if the statute under which it is obtained fails to

provide a person of ordinary intelligence fair notice of

what is prohibited, or is so standardless that it authorizes

or encourages seriously discriminatory enforcement. Hill

v. Colorado, 530 U. S. 703, 732 (2000); see also Grayned v.

City of Rockford, 408 U. S. 104, 108–109 (1972). Although

ordinarily “[a] plaintiff who engages in some conduct that

is clearly proscribed cannot complain of the vagueness of

the law as applied to the conduct of others,” we have re-

laxed that requirement in the First Amendment context,

permitting plaintiffs to 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

Cite as: 553 U. S. ____ (2008) 19

Opinion of the Court

and 7 (1982); see also Reno v. American Civil Liberties

Union, 521 U. S. 844, 870–874 (1997). But “perfect clarity

and precise guidance have never been required even of

regulations that restrict expressive activity.” Ward v.

Rock Against Racism, 491 U. S. 781, 794 (1989).

The Eleventh Circuit believed that the phrases “ ‘in a

manner that reflects the belief’ ” and “ ‘in a manner . . .

that is intended to cause another to believe’ ” are “so vague

and standardless as to what may not be said that the

public is left with no objective measure to which behavior

can be conformed.” 444 F. 3d, at 1306. The court gave two

examples. First, an email claiming to contain photograph

attachments and including a message that says “ ‘little

Janie in the bath—hubba, hubba!’ ” Ibid. According to the

Eleventh Circuit, given that the statute does not require

the actual existence of illegal material, the Government

would have “virtually unbounded discretion” to deem such

a statement in violation of the “ ‘reflects the belief’ ” prong.

Ibid. The court’s second example was an e-mail entitled

“ ‘Good pics of kids in bed’ ” with a photograph attachment

of toddlers in pajamas asleep in their beds. Ibid. The

court described three hypothetical senders: a proud

grandparent, a “chronic forwarder of cute photos with racy

tongue-in-cheek subject lines,” and a child molester who

seeks to trade the photographs for more graphic material.

Id., at 1306–1307. According to the Eleventh Circuit,

because the “manner” in which the photographs are sent is

the same in each case, and because the identity of the

sender and the content of the photographs are irrelevant

under the statute, all three senders could arguably be

prosecuted for pandering. Id., at 1307.

We think that neither of these hypotheticals, without

further facts, would enable a reasonable juror to find,

beyond a reasonable doubt, that the speaker believed and

spoke in a manner that reflected the belief, or spoke in a

manner intended to cause another to believe, that the

20 UNITED STATES v. WILLIAMS

Opinion of the Court

pictures displayed actual children engaged in “sexually

explicit conduct” as defined in the Act. The prosecutions

would be thrown out at the threshold.

But the Eleventh Circuit’s error is more fundamental

than merely its selection of unproblematic hypotheticals.

Its basic mistake lies in the belief that the mere fact that

close cases can be envisioned renders a statute vague.

That is not so. Close cases can be imagined under virtu-

ally any statute. The problem that poses is addressed, not

by the doctrine of vagueness, but by the requirement of

proof beyond a reasonable doubt. See In re Winship, 397

U. S. 358, 363 (1970).

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 indeterminacy of precisely what that fact is.

Thus, we have struck down statutes that tied criminal

culpability to whether the defendant’s conduct was “an-

noying” or “indecent”—wholly subjective judgments with-

out statutory definitions, narrowing context, or settled

legal meanings. See Coates v. Cincinnati, 402 U. S. 611,

614 (1971); Reno, supra, at 870–871, and n. 35.

There is no such indeterminacy here. The statute re-

quires that the defendant hold, and make a statement

that reflects, the belief that the material is child pornog-

raphy; or that he communicate in a manner intended to

cause another so to believe. Those are clear questions of

fact. Whether someone held a belief or had an intent is a

true-or-false determination, not a subjective judgment

such as whether conduct is “annoying” or “indecent.”

Similarly true or false is the determination whether a

particular formulation reflects a belief that material or

purported material is child pornography. To be sure, it

may be difficult in some cases to determine whether these

clear requirements have been met. “But courts and juries

every day pass upon knowledge, belief and intent—the

Cite as: 553 U. S. ____ (2008) 21

Opinion of the Court

state of men’s minds—having before them no more than

evidence of their words and conduct, from which, in ordi-

nary human experience, mental condition may be in-

ferred.” American Communications Assn. v. Douds, 339

U. S. 382, 411 (1950) (citing 2 J. Wigmore, Evidence §§244,

256 et seq. (3d ed. 1940)). And they similarly pass every

day upon the reasonable import of a defendant’s state-

ments—whether, for example, they fairly convey a false

representation, see, e.g., 18 U. S. C. §1621 (criminalizing

perjury), or a threat of physical injury, see, e.g., §115(a)(1)

(criminalizing threats to assault federal officials). Thus,

the Eleventh Circuit’s contention that §2252A(a)(3)(B)

gives law enforcement officials “virtually unfettered dis-

cretion” has no merit. No more here than in the case of

laws against fraud, conspiracy, or solicitation.

* * *

Child pornography harms and debases the most de-

fenseless of our citizens. Both the State and Federal

Governments have sought to suppress it for many years,

only to find it proliferating through the new medium of the

Internet. This Court held unconstitutional Congress’s

previous attempt to meet this new threat, and Congress

responded with a carefully crafted attempt to eliminate

the First Amendment problems we identified. As far as

the provision at issue in this case is concerned, that effort

was successful.

The judgment of the Eleventh Circuit is reversed.

It is so ordered.

Cite as: 553 U. S. ____ (2008) 1

STEVENS, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–694

_________________

UNITED STATES, PETITIONER v. MICHAEL

WILLIAMS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[May 19, 2008]

JUSTICE STEVENS, with whom JUSTICE BREYER joins,

concurring.

My conclusion that this statutory provision is not fa-

cially unconstitutional is buttressed by two interrelated

considerations on which JUSTICE SCALIA finds it unneces-

sary to rely. First, I believe the result to be compelled by

the principle that “every reasonable construction must be

resorted to, in order to save a statute from unconstitution-

ality,” Hooper v. California, 155 U. S. 648, 657 (1895); see

also Edward J. DeBartolo Corp. v. Florida Gulf Coast

Building & Constr. Trades Council, 485 U. S. 568, 575

(1988) (collecting cases).

Second, to the extent the statutory text alone is unclear,

our duty to avoid constitutional objections makes it espe-

cially appropriate to look beyond the text in order to ascer-

tain the intent of its drafters. It is abundantly clear from

the provision’s legislative history that Congress’ aim was

to target materials advertised, promoted, presented, dis-

tributed, or solicited with a lascivious purpose—that is,

with the intention of inciting sexual arousal. The provi-

sion was described throughout the deliberations in both

Houses of Congress as the “pandering,” or “pandering and

solicitation” provision, despite the fact that the term “pan-

dering” appears nowhere in the statute. See, e.g., 149

Cong. Rec. 4227 (2003) (“[T]he bill criminalizes the pan-

2 UNITED STATES v. WILLIAMS

STEVENS, J., concurring

dering of child pornography, creating a new crime to re-

spond to the Supreme Court’s recent ruling [in Ashcroft v.

Free Speech Coalition, 535 U. S. 234 (2002)]” (statement of

Sen. Leahy, bill’s cosponsor)); H. R. Conf. Rep. No. 108–66,

p. 61 (2003) (“[The bill] includes a new pandering provi-

sion . . . that prohibits advertising, promoting, presenting,

distributing, or soliciting . . . child pornography” (internal

quotation marks omitted)); S. Rep. No. 108–2, p. 10 (2003)

(“S. 151 creates three new offenses . . . . One prohibits

the pandering or solicitation of child pornography”); id.,

at 16 (“[T]he bill criminalizes the pandering of child

pornography”).

The Oxford English Dictionary defines the verb “pan-

der,” as “to minister to the gratification of (another’s lust),”

11 Oxford English Dictionary 129 (2d ed. 1989). And

Black’s Law Dictionary provides, as relevant, this defini-

tion of “pandering”: “The act or offense of selling or dis-

tributing textual or visual material (such as magazines or

videotapes) openly advertised to appeal to the recipient’s

sexual interest.” Black’s Law Dictionary 1142 (8th ed.

2004) (hereinafter Black’s).1 Consistent with these dic-

tionary definitions, our cases have explained that “pander-

ing” is “ ‘the business of purveying textual or graphic

matter openly advertised to appeal to the erotic interest,’ ”

Ginzburg v. United States, 383 U. S. 463, 467, and n. 7

(1966) (quoting Roth v. United States, 354 U. S. 476, 495–

496 (1957)).2

——————

1 The first definition offered is “The act or offense of recruiting a pros-

titute, finding a place of business for a prostitute, or soliciting custom-

ers for a prostitute.” Black’s 1142.

2 As I have explained elsewhere, Ginzburg has long since lost its force

as law, see, e.g., FW/PBS, Inc. v. Dallas, 493 U. S. 215, 249 (1990)

(opinion concurring in part and dissenting in part) (“Ginzburg was

decided before the Court extended First Amendment protection to

commercial speech and cannot withstand our decision in Virginia Bd. of

Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748

(1976)”). Still, the case’s explication of the meaning of “pandering” is

Cite as: 553 U. S. ____ (2008) 3

STEVENS, J., concurring

It was against this backdrop that Congress crafted the

provision we uphold today. Both this context and the

statements surrounding the provision’s enactment con-

vince me that in addition to the other limitations the

Court properly concludes constrain the reach of the stat-

ute, the heightened scienter requirements described ante,

at 9–10, contain an element of lasciviousness.

The dissent argues that the statute impermissibly un-

dermines our First Amendment precedents insofar as it

covers proposals to transact in constitutionally protected

material. It is true that proof that a pornographic but not

obscene representation did not depict real children would

place that representation on the protected side of the line.

But any constitutional concerns that might arise on that

score are surely answered by the construction the Court

gives the statute’s operative provisions; that is, proposing

a transaction in such material would not give rise to

criminal liability under the statute unless the defendant

actually believed, or intended to induce another to believe,

that the material in question depicted real children.

Accordingly, when material which is protected—

particularly if it possesses serious literary, artistic, politi-

cal, or scientific value—is advertised, promoted, pre-

sented, distributed, or solicited for some lawful and

nonlascivious purpose, such conduct is not captured by the

statutory prohibition. Cf. Miller v. California, 413 U. S.

15, 24–25 (1973).

——————

instructive.

Cite as: 553 U. S. ____ (2008) 1

SOUTER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–694

_________________

UNITED STATES, PETITIONER v. MICHAEL

WILLIAMS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[May 19, 2008]

JUSTICE SOUTER, with whom JUSTICE GINSBURG joins,

dissenting.

Dealing in obscenity is penalized without violating the

First Amendment, but as a general matter pornography

lacks the harm to justify prohibiting it. If, however, a

photograph (to take the kind of image in this case) shows

an actual minor child as a pornographic subject, its trans-

fer and even its possession may be made criminal. New

York v. Ferber, 458 U. S. 747, 765–766 (1982); Osborne v.

Ohio, 495 U. S. 103, 110–111 (1990). The exception to the

general rule rests not on the content of the picture but on

the need to foil the exploitation of child subjects, Ferber,

458 U. S., at 759–760, and the justification limits the

exception: only pornographic photographs of actual chil-

dren may be prohibited, see id., at 763, 764; Ashcroft v.

Free Speech Coalition, 535 U. S. 234, 249–251 (2002).

Thus, just six years ago the Court struck down a statute

outlawing particular material merely represented to be

child pornography, but not necessarily depicting actual

children. Id., at 257–258.

The Prosecutorial Remedies and Other Tools to end the

Exploitation of Children Today Act of 2003 (Act), 117 Stat.

650, was enacted in the wake of Free Speech Coalition.

The Act responds by avoiding any direct prohibition of

2 UNITED STATES v. WILLIAMS

SOUTER, J., dissenting

transactions in child pornography1 when no actual minors

may be pictured; instead, it prohibits proposals for trans-

actions in pornography when a defendant manifestly

believes or would induce belief in a prospective party that

the subject of an exchange or exhibition is or will be an

actual child, not an impersonated, simulated or “virtual”

one, or the subject of a composite created from lawful

photos spliced together. The Act specifically prohibits

three types of those proposals. It outlaws solicitation of

child pornography, as well as two distinct kinds of offers:

those “advertis[ing]” or “promot[ing]” prosecutable child

pornography, which recommend the material with the

implication that the speaker can make it available, and

those “present[ing]” or “distribut[ing]” such child pornog-

raphy, which make the material available to anyone who

chooses to take it. 18 U. S. C. §2252A(a)(3)(B) (2000 ed.,

Supp. V).

The Court holds it is constitutional to prohibit these

proposals, and up to a point I do not disagree. In particu-

lar, I accept the Court’s explanation that Congress may

criminalize proposals unrelated to any extant image. I

part ways from the Court, however, on the regulation of

proposals made with regard to specific, existing represen-

tations. Under the new law, the elements of the pander-

ing offense are the same, whether or not the images are of

real children. As to those that do not show real children,

of course, a transaction in the material could not be prose-

cuted consistently with the First Amendment, and I be-

lieve that maintaining the First Amendment protection of

——————

1 I use “child pornography” to mean any pornographic representation

(such as a photograph, as in this case) that includes what appears to be

a child subject. “True” or “real” child pornography refers to images

made directly in pornographic settings with models who are minors;

“fake” refers to simulations, components of lawful photos spliced

together, or those made with adults looking young enough to be mis-

taken for minors.

Cite as: 553 U. S. ____ (2008) 3

SOUTER, J., dissenting

expression we have previously held to cover fake child

pornography requires a limit to the law’s criminalization

of pandering proposals. In failing to confront the tension

between ostensibly protecting the material pandered while

approving prosecution of the pandering of that same ma-

terial, and in allowing the new pandering prohibition to

suppress otherwise protected speech, the Court under-

mines Ferber and Free Speech Coalition in both reasoning

and result. This is the significant element of today’s

holding, and I respectfully dissent from it.

I

The easy case for applying the Act would be a proposal

to obtain or supply child pornography supposedly showing

a real child, when the solicitation or offer is unrelated to

any image (that is, when the existence of pornographic

“material” was merely “purported”). See ante, at 6 (“The

statute does not require the actual existence of child por-

nography”). A proposal speaking of a pornographic photo-

graph of a child is (absent any disclaimer or qualification)

understood to mean a photo of an actual child; the reason-

able assumption is that people desiring child pornography

are not looking for fake child pornography, so that those

who speak about it mean the real thing. Hence, someone

who seeks to obtain child pornography (having no specific

artifact in mind) “solicits” an unlawful transfer of contra-

band. 18 U. S. C. §2252A(3)(B). On the other side of that

sort of proposed transaction, someone with nothing to

supply or having only non-expressive matter who purports

to present, distribute, advertise, or promote child pornog-

raphy also proposes an illegal transaction. In both cases,

the activity would amount to an offer to traffic in child

pornography that may be suppressed, and the First

Amendment does not categorically protect offers to engage

in illegal transactions. To the extent the speaker intended

to mislead others, a conviction would also square with the

4 UNITED STATES v. WILLIAMS

SOUTER, J., dissenting

unprotected status of fraud, see ante, at 13; and even a

non-fraudulent speaker who mistakenly believed he could

obtain the forbidden contraband to transfer to anyone who

accepted an offer could be validly convicted consistent with

the general rule of criminal law, that attempting to com-

mit a crime is punishable even though the completed

crime might (or would) turn out to be impossible in fact,

see ante, at 14–15.

The easy cases for constitutional application of the Act

are over, however, when one gets to proposals for transac-

tions related to extant pornographic objects, like photos in

a dealer’s inventory, for example. These will in fact be the

common cases, as the legislative findings attest. See

§§501(1)–(15), 117 Stat. 676–678. Congress did not pass

the Act to catch unsuccessful solicitors or fraudulent

offerors with no photos to sell; rather, it feared that “[t]he

mere prospect that the technology exists to create compos-

ite or computer-generated depictions that are indistin-

guishable from depictions of real children will allow de-

fendants who possess images of real children to escape

prosecution . . . . This threatens to render child pornogra-

phy laws that protect real children unenforceable.” Id.,

§501(13).

A person who “knowingly” proposes a transaction in an

extant image incorporates into the proposal an under-

standing that the subject of the proposal is or includes

that image. Cf. ante, at 14 (“[‘Promotes’] refers to the

recommendation of a particular piece of purported child

pornography . . .”). Congress understood that underlying

most proposals there will be an image that shows a child,

and the proposal referring to an actual child’s picture will

thus amount to a proposal to commit an independent

crime such as a transfer of child pornography, see 18

U. S. C. §§2252A(a)(1), (2). But even when actual pictures

thus occasion proposals, the Act requires no finding that

an actual child be shown in the pornographic setting in

Cite as: 553 U. S. ____ (2008) 5

SOUTER, J., dissenting

order to prove a violation. And the fair assumption (ap-

parently made by Congress) is that in some instances, the

child pornography in question will be fake, with the pic-

ture showing only a simulation of a child, for example, or a

very young-looking adult convincingly passed off as a

child; in those cases the proposal is for a transaction that

could not itself be made criminal, because the absence of a

child model means that the image is constitutionally

protected. See Free Speech Coalition, 535 U. S., at 246.

But under the Act, that is irrelevant. What matters is not

the inclusion of an actual child in the image, or the valid-

ity of forbidding the transaction proposed; what counts is

simply the manifest belief or intent to cause a belief that a

true minor is shown in the pornographic depiction referred

to.

The tension with existing constitutional law is obvious.

Free Speech Coalition reaffirmed that non-obscene virtual

pornographic images are protected, because they fail to

trigger the concern for child safety that disentitles child

pornography to First Amendment protection. See id., at

249–251. The case thus held that pictures without real

minors (but only simulations, or young-looking adults)

may not be the subject of a non-obscenity pornography

crime, id., at 246, 251, and it has reasonably been taken to

mean that transactions in pornographic pictures featuring

children may not be punished without proof of real chil-

dren, see, e.g., United States v. Salcido, 506 F. 3d 729, 733

(CA9 2007) (per curiam) (“In [Free Speech Coalition], the

Supreme Court held that possession of ‘virtual’ child

pornography cannot constitute a criminal offense. . . . As a

result, the government has the burden of proving beyond a

reasonable doubt that the images were of actual children,

not computer-generated images”); cf. Free Speech Coali-

tion, supra, at 255 (“The Government raises serious con-

stitutional difficulties by seeking to impose on the defen-

dant the burden of proving his speech is not unlawful”).

6 UNITED STATES v. WILLIAMS

SOUTER, J., dissenting

The Act, however, punishes proposals regarding images

when the inclusion of actual children is not established by

the prosecution, as well as images that show no real chil-

dren at all; and this, despite the fact that, under Free

Speech Coalition, the first proposed transfer could not be

punished without the very proof the Act is meant to dis-

pense with, and the second could not be made criminal at

all.

II

What justification can there be for making independent

crimes of proposals to engage in transactions that may

include protected materials? The Court gives three an-

swers, none of which comes to grips with the difficulty

raised by the question. The first, ante, at 17–18, says it is

simply wrong to say that the Act makes it criminal to

propose a lawful transaction, since an element of the

forbidden proposal must express a belief or inducement to

believe that the subject of the proposed transaction shows

actual children. But this does not go to the point. The

objection is not that the Act criminalizes a proposal for a

transaction described as being in virtual (that is, pro-

tected) child pornography. The point is that some propos-

als made criminal, because they express a belief that they

refer to real child pornography, will relate to extant mate-

rial that does not, or cannot be, demonstrated to show real

children and so may not be prohibited. When a proposal

covers existing photographs, the Act does not require that

the requisite belief (manifested or encouraged) in the

reality of the subjects be a correct belief. Prohibited pro-

posals may relate to transactions in lawful, as well as

unlawful, pornography.

Much the same may be said about the Court’s second

answer, that a proposal to commit a crime enjoys no

speech protection. Ante, at 11. For the reason just given,

that answer does not face up to the source of the difficulty:

Cite as: 553 U. S. ____ (2008) 7

SOUTER, J., dissenting

the action actually contemplated in the proposal, the

transfer of the particular image, is not criminal if it turns

out that an actual child is not shown in the photograph. If

Ferber and Free Speech Coalition are good law, the facts

sufficient for conviction under the Act do not suffice to

show that the image (perhaps merely simulated), and thus

a transfer of that image, are outside the bounds of consti-

tutional protection. For this reason, it is not enough just

to say that the First Amendment does not protect propos-

als to commit crimes. For that rule rests on the assump-

tion that the proposal is actually to commit a crime, not to

do an act that may turn out to be no crime at all. Why

should the general rule of unprotected criminal proposals

cover a case like the proposal to transfer what may turn

out to be fake child pornography?

The Court’s third answer analogizes the proposal to an

attempt to commit a crime, and relies on the rule of crimi-

nal law that an attempt is criminal even when some im-

pediment makes it impossible to complete the criminal act

(the possible impediment here being the advanced age,

say, or simulated character of the child-figure). See ante,

at 14–15. Although the actual transfer the speaker has in

mind may not turn out to be criminal, the argument goes,

the transfer intended by the speaker is criminal, because

the speaker believes2 that the contemplated transfer will

——————

2 I leave largely aside the case of fraudulent proposals passing off

virtual pornography as the real thing. The fact that fraud is a separate

category of speech which independently lacks First Amendment protec-

tion changes the analysis with regard to such proposals, although it

does not necessarily dictate the conclusion. The Court has placed limits

on the policing of fraud when it cuts too far into other protected speech.

See, e.g., Riley v. National Federation of Blind of N. C., Inc., 487 U. S.

781, 787–795 (1988) (invalidating professional fundraiser regulation

under strict scrutiny). Also relevant to the analysis would be that the

Act is hardly a consumer-protection statute; Congress seems to have

cared little for the interests of would-be child-pornography purchasers,

and the penalties for violating the Act are quite onerous compared with

8 UNITED STATES v. WILLIAMS

SOUTER, J., dissenting

be of real child pornography, and transfer of real child

pornography is criminal. The fact that the circumstances

are not as he believes them to be, because the material

does not depict actual minors, is no defense to his attempt

to engage in an unlawful transaction.

But invoking attempt doctrine to dispense with Free

Speech Coalition’s real-child requirement in the circum-

stances of this case is incoherent with the Act, and it fails

to fit the paradigm of factual impossibility or qualify for

an extended version of that rule. The incoherence of the

Court’s answer with the scheme of the Act appears from

§2252A(b)(1) (2000 ed., Supp. V), which criminalizes at-

tempting or conspiring to violate the Act’s substantive

prohibitions, including the pandering provision of

§2252A(a)(3)(B). Treating pandering itself as a species of

attempt would thus mean that there is a statutory, incho-

ate offense of attempting to attempt to commit a substan-

tive child pornography crime. A metaphysician could

imagine a system like this, but the universe of inchoate

crimes is not expandable indefinitely under the actual

principles of criminal law, let alone when First Amend-

ment protection is threatened. See 2 W. LaFave, Substan-

tive Criminal Law §11.2(a), p. 208 (2d ed. 2003) (“[W]here

a certain crime is actually defined in terms of either

doing or attempting a certain crime, then the argument

that there is no crime of attempting this attempt is

persuasive”).

The more serious failure of the attempt analogy, how-

ever, is its unjustifiable extension of the classic factual

——————

other consumer-protection laws. See Brief for American Booksellers

Foundation for Free Expression et al. as Amici Curiae 17, and n. 8

(identifying laws punishing fraud as a misdemeanor or with civil

penalties). A court could legitimately question whether the unprotected

status of fraud enables the Government to punish the transfer of

otherwise protected speech with penalties so apparently disproportion-

ate to the harm that fraud is understood to cause.

Cite as: 553 U. S. ____ (2008) 9

SOUTER, J., dissenting

frustration rule, under which the action specifically in-

tended would be a criminal act if completed. The intend-

ing killer who mistakenly grabs the pistol loaded with

blanks would have committed homicide if bullets had been

in the gun; it was only the impossibility of completing the

very intended act of shooting bullets that prevented the

completion of the crime. This is not so, however, in the

proposed transaction in an identified pornographic image

without the showing of a real child; no matter what the

parties believe, and no matter how exactly a defendant’s

actions conform to his intended course of conduct in com-

pleting the transaction he has in mind, if there turns out

to be reasonable doubt that a real child was used to make

the photos, or none was, there could be, respectively, no

conviction and no crime. Thus, in the classic impossibility

example, there is attempt liability when the course of

conduct intended cannot be completed owing to some fact

which the defendant was mistaken about, and which

precludes completing the intended physical acts. But on

the Court’s reasoning there would be attempt liability

even when the contemplated acts had been completed

exactly as intended, but no crime had been committed.

Why should attempt liability be recognized here (thus

making way for “proposal” liability, under the Court’s

analogy)?

The Court’s first response is to demur, with its example

of the drug dealer who sells something else. Ante, at 14.

(A package of baking powder, not powder cocaine, would

be an example.) No one doubts the dealer may validly be

convicted of an attempted drug sale even if he didn’t know

it was baking powder he was selling. Yet selling baking

powder is no more criminal than selling virtual child

pornography.

This response does not suffice, however, because it

overlooks a difference between the lawfulness of selling

baking powder and the lawful character of virtual child

10 UNITED STATES v. WILLIAMS

SOUTER, J., dissenting

pornography. Powder sales are lawful but not constitu-

tionally privileged. Any justification within the bounds of

rationality would suffice for limiting baking powder trans-

actions, just as it would for regulating the discharge of

blanks from a pistol. Virtual pornography, however, has

been held to fall within the First Amendment speech

privilege, and thus is affirmatively protected, not merely

allowed as a matter of course. The question stands: why

should a proposal that may turn out to cover privileged

expression be subject to standard attempt liability?

The Court’s next response deals with the privileged

character of the underlying material. It gives another

example of attempt that presumably could be made crimi-

nal, in the case of the mistaken spy, who passes national

security documents thinking they are classified and secret,

when in fact they have been declassified and made subject

to public inspection. Ante, at 18. Publishing unclassified

documents is subject to the First Amendment privilege

and can claim a value that fake child pornography cannot.

The Court assumes that the document publication may be

punished as an attempt to violate state-secret restrictions

(and I assume so too); then why not attempt-proposals

based on a mistaken belief that the underlying material is

real child pornography? As the Court looks at it, the

deterrent value that justifies prosecuting the mistaken spy

(like the mistaken drug dealer and the intending killer)

would presumably validate prosecuting those who make

proposals about fake child pornography. But it would not,

for there are significant differences between the cases

of security documents and pornography without real

children.

Where Government documents, blank cartridges, and

baking powder are involved, deterrence can be promoted

without compromising any other important policy, which

is not true of criminalizing mistaken child pornography

proposals. There are three dispositive differences. As for

Cite as: 553 U. S. ____ (2008) 11

SOUTER, J., dissenting

the first, if the law can criminalize proposals for transac-

tions in fake as well as true child pornography as if they

were like attempts to sell cocaine that turned out to be

baking powder, constitutional law will lose something

sufficiently important to have made it into multiple hold-

ings of this Court, and that is the line between child por-

nography that may be suppressed and fake child pornog-

raphy that falls within First Amendment protection. No

one can seriously assume that after today’s decision the

Government will go on prosecuting defendants for selling

child pornography (requiring a showing that a real child is

pictured, under Free Speech Coalition, 535 U. S., at 249–

251); it will prosecute for merely proposing a pornography

transaction manifesting or inducing the belief that a photo

is real child pornography, free of any need to demonstrate

that any extant underlying photo does show a real child.

If the Act can be enforced, it will function just as it was

meant to do, by merging the whole subject of child pornog-

raphy into the offense of proposing a transaction, dispens-

ing with the real-child element in the underlying subject.

And eliminating the need to prove a real child will be a

loss of some consequence. This is so not because there will

possibly be less pornography available owing to the

greater ease of prosecuting, but simply because there must

be a line between what the Government may suppress and

what it may not, and a segment of that line will be gone.

This Court went to great pains to draw it in Ferber and

Free Speech Coalition; it was worth drawing and it is

worth respecting now in facing the attempt to end-run

that line through the provisions of the Act.

The second reason for treating child pornography differ-

ently follows from the first. If the deluded drug dealer is

held liable for an attempt crime there is no risk of elimi-

nating baking powder from trade in lawful commodities.

Likewise, if the mistaken spy is convicted of attempting to

disclose classified national security documents there will

12 UNITED STATES v. WILLIAMS

SOUTER, J., dissenting

be no worry that lawful speech will be suppressed as a

consequence; any unclassified documents in question can

be quoted in the newspaper, other unclassified documents

will circulate, and analysts of politics and foreign policy

will be able to rely on them. But if the Act can effectively

eliminate the real-child requirement when a proposal

relates to extant material, a class of protected speech will

disappear. True, what will be lost is short on merit, but

intrinsic value is not the reason for protecting unpopular

expression.

Finally, if the Act stands when applied to identifiable,

extant pornographic photographs, then in practical terms

Ferber and Free Speech Coalition fall. They are left as

empty as if the Court overruled them formally, and when

a case as well considered and as recently decided as Free

Speech Coalition is put aside (after a mere six years) there

ought to be a very good reason. Another pair of First

Amendment cases come to mind, compare Minersville

School Dist. v. Gobitis, 310 U. S. 586 (1940), with West

Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943). In

Barnette, the Court set out the reason for its abrupt turn

in overruling Gobitis after three years, 319 U. S., at 635–

642, but here nothing is explained. Attempts with baking

powder and unclassified documents can be punished with-

out damage to confidence in precedent; suppressing pro-

tected pornography cannot be.

These differences should be dispositive. Eliminating the

line between protected and unprotected speech, guaran-

teeing the suppression of a category of expression previ-

ously protected, and reducing recent and carefully consid-

ered First Amendment precedents to empty shells are

heavy prices, not to be paid without a substantial offset,

which is missing from this case. Hence, my answer that

there is no justification for saving the Act’s attempt to get

around our holdings. We should hold that a transaction in

what turns out to be fake pornography is better under-

Cite as: 553 U. S. ____ (2008) 13

SOUTER, J., dissenting

stood, not as an incomplete attempt to commit a crime, but

as a completed series of intended acts that simply do not

add up to a crime, owing to the privileged character of the

material the parties were in fact about to deal in.

The upshot is that there ought to be no absolute rule on

the relationship between attempt liability and a frustrat-

ing mistake. Not all attempts frustrated by mistake

should be punishable, and not all mistaken assumptions

that expressive material is unprotected should bar liabil-

ity for attempts to commit a crime. The legitimacy of

attempt liability should turn on its consequences for pro-

tected expression and the law that protects it. When, as

here, a protected category of expression would inevitably

be suppressed and its First Amendment safeguard left

pointless, the Government has the burden to justify this

damage to free speech.

III

Untethering the power to suppress proposals about

extant pornography from any assessment of the likely

effects the proposals might have has an unsettling signifi-

cance well beyond the subject of child pornography. For

the Court is going against the grain of pervasive First

Amendment doctrine that tolerates speech restriction not

on mere general tendencies of expression, or the private

understandings of speakers or listeners, but only after a

critical assessment of practical consequences. Thus, one of

the milestones of American political liberty is Branden-

burg v. Ohio, 395 U. S. 444 (1969) (per curiam), which is

seen as the culmination of a half century’s development

that began with Justice Holmes’s dissent in Abrams v.

United States, 250 U. S. 616 (1919). In place of the rule

that dominated the First World War sedition and espio-

nage cases, allowing suppression of speech for its tendency

and the intent behind it, see Schenck v. United States, 249

U. S. 47, 52 (1919), Brandenburg insisted that

14 UNITED STATES v. WILLIAMS

SOUTER, J., dissenting

“the constitutional guarantees of free speech and free

press do not permit a State to forbid or proscribe ad-

vocacy of the use of force or of law violation except

where such advocacy is directed to inciting or produc-

ing imminent lawless action and is likely to incite or

produce such action.” 395 U. S., at 447.

See also G. Stone, Perilous Times: Free Speech in Wartime

522 (2004) (“[E]xactly fifty years after Schenck, the Su-

preme Court finally and unambiguously embraced the

Holmes-Brandeis version of clear and present danger”).

Brandenburg unmistakably insists that any limit on

speech be grounded in a realistic, factual assessment of

harm. This is a far cry from the Act before us now, which

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

represented or his desire to foster belief in another. This

should weigh heavily in the overbreadth balance, because

“First Amendment freedoms are most in danger when the

government seeks to control thought or to justify its laws

for that impermissible end. The right to think is the

beginning of freedom, and speech must be protected from

the government because speech is the beginning of

thought.” Free Speech Coalition, 535 U. S., at 253. See

also Hurley v. Irish-American Gay, Lesbian and Bisexual

Group of Boston, Inc., 515 U. S. 557, 579 (1995) (“The very

idea that a noncommercial speech restriction be used to

produce thoughts and statements acceptable to some

groups or, indeed, all people, grates on the First Amend-

ment, for it amounts to nothing less than a proposal to

limit speech in the service of orthodox expression. The

Speech Clause has no more certain antithesis”).

IV

I said that I would not pay the price enacted by the Act

Cite as: 553 U. S. ____ (2008) 15

SOUTER, J., dissenting

without a substantial justification, which I am at a loss to

find here. I have to assume that the Court sees some

grounding for the Act that I do not, however, and I sup-

pose the holding can only be explained as an uncritical

acceptance of a claim made both to Congress and to this

Court. In each forum the Government argued that a jury’s

appreciation of the mere possibility of simulated or virtual

child pornography will prevent convictions for the real

thing, by inevitably raising reasonable doubt about

whether actual children are shown. The Government

voices the fear that skeptical jurors will place traffic in

child pornography beyond effective prosecution unless it

can find some way to avoid the Ferber limitation, skirt

Free Speech Coalition, and allow prosecution whether

pornography shows actual children or not.

The claim needs to be taken with a grain of salt. There

has never been a time when some such concern could not

be raised. Long before the Act was passed, for example,

pornographic photos could be taken of models one day into

adulthood, and yet there is no indication that prosecution

has ever been crippled by the need to prove young-looking

models were underage.

Still, if I were convinced there was a real reason for the

Government’s fear stemming from computer simulation, I

would be willing to reexamine Ferber. Conditions can

change, and if today’s technology left no other effective

way to stop professional and amateur pornographers from

exploiting children there would be a fair claim that some

degree of expressive protection had to yield to protect the

children.

But the Government does not get a free pass whenever

it claims a worthy objective for curtailing speech, and I

have further doubts about the need claimed here. Al-

though Congress found that child pornography defendants

“almost universally rais[e]” the defense that the alleged

child pornography could be simulated or virtual, §501(10),

16 UNITED STATES v. WILLIAMS

SOUTER, J., dissenting

117 Stat. 677, neither Congress nor this Court has been

given the citation to a single case in which a defendant’s

acquittal is reasonably attributable to that defense.3 See

——————

3 During hearings prior to passage of the Act, the Department of Jus-

tice presented Congress with three examples of prosecutions purport-

edly frustrated by a virtual-child defense. See Hearing on H. R. 1104

and H. R. 1161 before the Subcommittee on Crime, Terrorism, and

Homeland Security of the House Committee on the Judiciary, 108th

Cong., 1st Sess., 9 (2003) (statement of Daniel P. Collins, Associate

Deputy Attorney General). In United States v. Bunnell, No. CRIM.02–

13–B–5–S, 2002 WL 927765 (D. Me., May 1, 2002), the court allowed

the defendant to withdraw his guilty plea after the Ashcroft v. Free

Speech Coalition, 535 U. S. 234 (2002), decision. The defendant did not,

however, present a virtual-child defense to a jury, nor was he acquitted;

indeed the court rejected his motion to dismiss, see Criminal Docket for

Case No. 1:02CR00013 (D. Me.). (The docket report also indicates that

the defendant’s trial was then continued during his prosecution in state

court, with the Government moving to dismiss upon receipt of a judg-

ment and commitment from the state court. See ibid.)

In United States v. Reilly, No. 01 CR. 1114(RPP), 2002 WL 31307170

(SDNY, Oct. 15, 2002), the court also allowed a defendant to withdraw

a guilty plea after the issuance of Free Speech Coalition, because his

plea was founded on a belief that the Government need not prove the

involvement of actual children in the material at issue. (After the time

of the congressional hearings, the court dismissed the child pornogra-

phy charges upon the Government’s motion, and the defendant was

convicted on multiple counts of transportation of obscene material

under 18 U. S. C. §1462. See Criminal Docket for Case No.

1:01CR01114 (SDNY).)

In United States v. Sims, 220 F. Supp. 2d 1222 (NM 2002), the defen-

dant was convicted after a jury trial at which the Government con-

tended, and the court agreed, that it did not bear the burden of proving

that the images at issue depicted actual minors. The Free Speech

Coalition decision came down soon afterward, and the defendant filed a

post-trial motion for acquittal. The trial court held that the Govern-

ment did bear the burden of proof and had met it with regard to one

count but not with regard to another, upon which it had presented no

evidence of the use of actual children. The trial court acquitted the

defendant on the latter count, observing that “[t]he government could

have taken a more cautionary approach and presented evidence to

prove the use of actual children, but it made the strategic decision not

to do so.” 220 F. Supp. 2d, at 1227. The Government did not seek

Cite as: 553 U. S. ____ (2008) 17

SOUTER, J., dissenting

Brief for Free Speech Coalition et al. as Amici Curiae 21–

23; Brief for National Law Center for Children and Fami-

lies et al. as Amici Curiae 10–13. The Government thus

seems to be selling itself short; it appears to be highly

successful in convicting child pornographers, the over-

whelming majority of whom plead guilty rather than try

their luck before a jury with a virtual-child defense.4 And

——————

review of this ruling on appeal.

In short, all of the cases presented to Congress involved the short-

term transition on the burden-of-proof issue occasioned by the Free

Speech Coalition decision; none of them involved a jury or judge’s

acquittal of a defendant on the basis of a virtual-child defense.

Nor do the Government’s amici identify other successful employ-

ments of a virtual-child defense. One amicus says that Free Speech

Coalition spawned serious prosecutorial problems, but the only exam-

ple it gives of an acquittal is a defendant’s partial acquittal in an Ohio

bench trial under an Ohio statute, where the judge convicted the

defendant of counts involving images for which the prosecution pre-

sented expert testimony of the minor’s identity and acquitted him of

counts for which it did not. See Brief for National Law Center for

Children and Families et al. as Amici Curiae 11 (citing State v. Tooley,

No. 2004–P–0064, 2005–Ohio–6709, 2005 WL 3476649 (App., Dec. 16,

2005)). The State apparently did not cross-appeal the acquittals, but in

considering defendant’s appeal of his convictions, the Supreme Court of

Ohio held that his hearsay objection to the Government’s expert was

irrelevant, because “[Free Speech Coalition] did not impose a height-

ened evidentiary burden on the state to specifically identify the child or

to use expert testimony to prove that the image contains a real child.”

114 Ohio St. 3d 366, 381, 2007–Ohio–3698, 872 N. E. 2d 894, 908

(2007). Rather, “[t]he fact-finder in this case, the trial judge, was

capable of reviewing the evidence to determine whether the state met

its burden of showing that the images depicted real children.” Id., at

382, 872 N. E. 2d, at 909. The case hardly bespeaks a prosecutorial

crisis.

4 According to the U. S. Department of Justice Bureau of Justice Sta-

tistics, in the 1,209 federal child pornography cases concluded in 2006,

95.1% of defendants were convicted. Bureau of Justice Statistics

Bulletin, Federal Prosecution of Child Sex Exploitation Offenders,

2006, p. 6 (Dec. 2007), online at http://www.ojp.usdoj.gov/bjs/pub/pdf/

fpcseo06.pdf (as visited May 8, 2008, and available in Clerk of Court’s

case file). By comparison, of the 161 child pornography cases concluded

18 UNITED STATES v. WILLIAMS

SOUTER, J., dissenting

little seems to have changed since the time of Free Speech

Coalition, when the Court rejected an assertion of the

same interest. See 535 U. S., at 254–255 (“[T]he Govern-

ment says that the possibility of producing images by

using computer imaging makes it very difficult for it to

prosecute those who produce pornography by using real

children. . . . The necessary solution, the argument runs, is

to prohibit both kinds of images. The argument, in es-

sence, is that protected speech may be banned as a means

to ban unprotected speech. This analysis turns the First

Amendment upside down”); id., at 259 (THOMAS, J., con-

curring in judgment) (“At this time . . . the Government

asserts only that defendants raise such defenses, not that

they have done so successfully. In fact, the Government

points to no case in which a defendant has been acquitted

based on a ‘computer-generated images’ defense”).

——————

in 1996, 96.9% of defendants were convicted. Ibid. Of the 2006 cases,

92.2% ended with a plea. Ibid. The 4.9% of defendants not convicted in

2006 was made up of 4.5% whose charges were dismissed, and only

0.4% who were not convicted at trial. Ibid.

Nor do the statistics suggest a crisis in the ability to prosecute. In

2,376 child pornography matters concluded by U. S. Attorneys in 2006,

58.5% of them were prosecuted, while 37.8% were declined for prosecu-

tion, and 3.7% were disposed by a U. S. magistrate. Id., at 2. By

comparison, the prosecution rate for all matters concluded by U. S.

Attorneys in 2006 was 59%. Ibid. Nor did weak evidence make up a

disproportionate part of declined prosecutions. Of the child pornogra-

phy cases declined for prosecution, 24.3% presented problems of weak

or inadmissible evidence; 22.7% were declined for lack of evidence of

criminal intent; and in 18.7% the suspects were prosecuted on other

charges. Id., at 3. In comparison, weak or inadmissible evidence

accounted for 53% of declined prosecutions for sex abuse and 20.4% for

sex transportation, both sexual exploitation crimes which do not easily

admit of a virtual-child defense. Ibid.

None of these data, to be sure, isolates the experience between Free

Speech Coalition and the current Act, or breaks down the post-Act

numbers by reference to prosecution under the Act. If the generality of

the statistics is a problem, however, it is for the Government, which

makes the necessity claim.

Cite as: 553 U. S. ____ (2008) 19

SOUTER, J., dissenting

Without some convincing evidence to the contrary,

experience tells us to have faith in the capacity of the jury

system, which I would have expected to operate in much

the following way, if the Act were not on the books. If the

Government sought to prosecute proposals about extant

images as attempts, it would seek to carry its burden of

showing that real children were depicted in the image

subject to the proposal simply by introducing the image

into evidence; if the figures in the picture looked like real

children, the Government would have made its prima facie

demonstration on that element.5 The defense might well

offer expert testimony to the effect that technology can

produce convincing simulations, but if this was the extent

of the testimony that came in, the cross-examination

would ask whether the witness could say that this particu-

lar, seemingly authentic representation was merely simu-

lated. If the witness could say that (or said so on direct),

and survived further questioning about the basis for the

opinion and its truth, acquittal would have been proper;

the defendant would have raised reasonable doubt about

whether a child had been victimized (the same standard

that would govern if the defendant were on trial for abus-

ing a child personally). But if the defense had no specific

evidence that the particular image failed to show actual

children, I am skeptical that a jury would have been likely

to entertain reasonable doubt that the image showed a

real child.

Perhaps I am wrong, but without some demonstration

that juries have been rendering exploitation of children

unpunishable, there is no excuse for cutting back on the

First Amendment and no alternative to finding over-

——————

5 The Courts of Appeals to consider the issue have declined to require

expert evidence to prove the authenticity of images, generally finding

the images themselves sufficient to prove the depiction of actual mi-

nors. See, e.g., United States v. Salcido, 506 F. 3d 729, 733–734 (CA9

2007) (per curiam) (collecting cases).

20 UNITED STATES v. WILLIAMS

SOUTER, J., dissenting

breadth in this Act. I would hold it unconstitutional on

the authority of Ferber and Free Speech Coalition.