recognizing common use of computers and internet in child pornography offenses
How later courts described this case
- recognizing common use of computers and internet in child pornography offenses
Written by the judges who cited it.
The opinion
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
_____________________ ELEVENTH CIRCUIT
APR 6, 2006
No. 04-15128 THOMAS K. KAHN
_____________________ CLERK
D. C. Docket No. 04-20299-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL WILLIAMS,
Defendant-Appellant.
_____________________
Appeal from the United States District Court for
the Southern District of Florida
______________________
(April 6, 2006)
Before BARKETT, WILSON and REAVLEY*, Circuit Judges.
REAVLEY, Circuit Judge:
*
Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth Circuit, sitting by
designation.
Michael Williams appeals his conviction for promotion of child
pornography under 18 U.S.C. § 2252A(a)(3)(B) on the grounds of facial
unconstitutionality. For this reason, we reverse that conviction. Williams was also
convicted of possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B),
and he appeals his sentence for that offense on the grounds that the court
unconstitutionally enhanced his sentence under a mandatory guidelines scheme in
violation of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
Because there was no reversible Booker error, we affirm Williams’s sentence of
60-months’ imprisonment.
I. The Charges
On April 26, 2004, as part of an undercover operation aimed at combating
child exploitation on the Internet, United States Secret Service Special Agent (SA)
Timothy Devine entered an Internet “chat” room using the screen name
“Lisa_n_Miami” (LMN). SA Devine observed a public message posted by a user
employing a sexually graphic screen name, which was later traced to the defendant
Williams. Williams’s public message stated that “Dad of toddler has ‘good’ pics
of her an [sic] me for swap of your toddler pics, or live cam.” SA Devine as LNM
engaged Williams in a private Internet chat during which they swapped non-
pornographic photographs. Williams provided a photograph of a two to three-
2
year-old female lying on a couch in her bathing suit, and five photographs of a one
to two-year-old female in various non-sexual poses, one of which depicted the
child with her breast exposed and her pants down just below her waistline. LNM
sent a non-sexual photo of a college-aged female digitally regressed to appear ten
to twelve years old, who LNM claimed was her daughter.
After the initial photo exchange, Williams claimed that he had nude
photographs of his four-year-old daughter, stating “I’ve got hc [hard core] pictures
of me and dau, and other guys eating her out - do you??” Williams asked for
additional pictures of LNM’s daughter. When these pictures were not received,
Williams accused LNM of being a cop. LNM responded by accusing Williams of
being a cop. After repeating these accusations in the public part of the chat room,
Williams posted a message stating “HERE ROOM; I CAN PUT UPLINK CUZ IM
FOR REAL -SHE CANT.” The message was followed by a computer hyperlink,
which SA Devine accessed. The computer hyperlink contained, among other
things, seven images of actual minors engaging in sexually explicit conduct. The
nude children in the photos were approximately five to fifteen years old,
displaying their genitals and/or engaged in sexual activity.
Secret Service agents executed a search warrant of Williams’s home. Two
computer hard drives seized during the search held at least twenty-two images of
3
actual minors engaged in sexually explicit conduct or lascivious display of
genitalia. Most of the images depicted prepubescent children and also depicted
sado-masochistic conduct or other depictions of pain.
Williams was charged with one count of promoting, or “pandering,”
material “in a manner that reflects the belief, or that is intended to cause another to
believe,” that the material contains illegal child pornography in violation of 18
U.S.C. § 2252A(a)(3)(B), which carries a sixty-month mandatory minimum
sentence. Williams was also charged with one count of possession of child
pornography under 18 U.S.C. § 2252A(a)(5)(B).
Williams filed a motion to dismiss the pandering charge on the grounds that
18 U.S.C. § 2252A(a)(3)(B) is unconstitutionally overbroad and vague. While the
motion was pending before the trial court, the parties reached a plea agreement by
which Williams would plead guilty to both counts but reserve his right to
challenge the constitutionality of the pandering provision on appeal. The court
sentenced Williams to sixty-months’ imprisonment for the pandering charge and
sixty months for the possession charge, to be served concurrently.
II. Williams’s Facial Challenge to 18 U.S.C. § 2252A(a)(3)(B)
A. Standard of Review
4
We review a district court’s conclusion as to the constitutionality of a
challenged statute de novo.1
B. The Child Pornography Problem
In this case, we consider the constitutionality of a law aimed at curbing the
promotion, or “pandering,”2 of child pornography. Relevant to this case, there are
two types of child pornography. Roughly speaking, "actual" or “real” child
pornography depicts true minors engaged in sexual conduct. In contrast, "virtual"
child pornography depicts what appear to be actual minors engaged in sexual
conduct, but in reality consists of computer-generated or enhanced images. Child
pornography images of both types are typically circulated through the Internet.
While society has benefitted greatly from the technological advances of the last
1
United States v. Panfil, 338 F.3d 1299, 1300 (11th Cir. 2003).
2
“Pandering” is defined as the catering to or exploitation of the weaknesses of others,
especially “to provide gratification for others' desires.” See MERRIAM WEBSTER ONLINE
DICTIONARY , http://www.m-w.com (last visited March 23, 2006). As a legal concept, pandering
is most commonly associated with prostitution. In that context, pandering provisions are statutes
penalizing various acts by intermediaries who engage in the commercial exploitation of
prostitution and are aimed at those who, as agents, promote prostitution rather than against the
prostitutes themselves. The term pandering, in some instances, is applied by Congress and the
courts to the promotion of obscenity. See, e.g., 39 U.S.C. § 3008 (prohibiting pandering
advertisements of sexually provocative materials by mail), Ginzburg v. United .States, 383 U.S.
463, 86 S. Ct. 942 (1966) (considering obscene nature of erotically advertised publications).
Congress has characterized both the child pornography regulation at issue in this case (18 U.S.C.
2252A(a)(3)(B)) and its unconstitutional predecessor (18 U.S.C. § 2256(8)(D) (1996)) as
“pandering” provisions.
5
decade, an unfortunate byproduct of sophisticated imaging technology and the rise
of the Internet has been the proliferation of pornography involving children.3
The anonymity and availability of the online world draws those who view
children in sexually deviant ways to websites and chat rooms where they may
communicate and exchange images with other like-minded individuals. The result
has been the development of a dangerous cottage industry for the production of
child pornography as well as the accretion of ever-widening child pornography
distribution rings.4 Our concern is not confined to the immediate abuse of the
children depicted in these images, but is also to enlargement of the market and the
universe of this deviant conduct that, in turn, results in more exploitation and
abuse of children. Regulation is made difficult, not only by the vast and sheltering
landscape of cyberspace, but also by the fact that mainstream and otherwise
3
Total federal prosecutions of child pornography cases increased more than 452% from
1997 to 2004. Statement of Laura H. Parsky, Deputy Asst. Attorney General, Criminal Division
before the Comm. On Commerce, Science, and Transportation, United States Senate Concerning
Protecting Children on the Internet. January 19, 2006.
4
In 1998, police cracked the “Wonderland Club,” an Internet child pornography ring that
involved members across twelve countries, and whose “chairman” was an American, uncovering
some 750,000 images of children. Membership rules required each member to possess at least
10,000 images of pre-teen children and to agree to exchange them with other members. Other
rings promote the worst imaginable forms of child pornography, such as “custom” child
pornography (images of child rape created to order for the consumer) and “real time” child
pornography, where members may watch the online rape of children as it occurs. In early 2006,
federal authorities shut down an Internet web site called “Kiddypics & Kiddyvids” that streamed
video of live child molestations involving children as young as eighteen months.
6
innocuous images of children are viewed and traded by pedophiles as sexually
stimulating.
Over the years, Congress has, by large bipartisan majorities, enacted
legislation designed to punish those who produce, peddle, or possess child
pornography. Congress has struggled to draft legislation that captures the truly
objectionable child-exploitative materials while staying within the boundaries of
the Supreme Court’s First Amendment jurisprudence. The protection of our
children against sexual abuse and predatory pedophiles is of extraordinary
importance. We do not question that strong federal laws are needed, but they must
pass constitutional muster. In other words, Congress may not “burn the house to
roast the pig.”5 Whether that difficult balance has been struck in the instant
legislation is the issue before us.
C. The Law and Child Pornography
We begin with a brief overview of child pornography law, which as a
distinct body, is of relatively recent vintage. The regulation of child pornography
was initially rooted in the Supreme Court’s obscenity doctrine. In Miller v.
California,6 the Court set forth the three-prong social merit test for determining
5
Butler v. Michigan, 352 U.S. 380, 383, 77 S. Ct. 524, 526 (1957).
6
413 U.S. 15, 93 S. Ct. 2607 (1973). The Miller test defines obscenity as a work that (1)
taken as a whole, appeals to the prurient interest under contemporary community standards, (2)
7
whether materials are obscene, and therefore proscribable as a category of
unprotected speech. In Stanley v. Georgia,7 the Court held that privacy interests
protect the right to possess obscene materials in one’s own home, but subsequently
clarified that this sanction does not extend to the distribution or receipt of
obscenity, which may be regulated on interstate commerce grounds even if the
transportation is for the recipient’s personal use.8 Against this backdrop, Congress
passed its first child pornography legislation, the Protection of Children against
Sexual Exploitation Act, in 1977.9 It was keyed to the Miller standard, outlawing
the use of children in the production of obscene materials and criminalizing the
knowing distribution of such materials for commercial purposes.
In 1982, the Supreme Court first dealt directly with the issue of child
pornography. In New York v. Ferber,10 a unanimous Court proclaimed that child
pornography was a distinct new category of speech without First Amendment
depicts or describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law, and (3) taken as a whole, lacks serious literary, artistic, political, or
scientific value. 413 U.S. at 24, 93 S. Ct. at 2615.
7
394 U.S. 557, 568, 89 S. Ct. 1243, 1259-50 (1969).
8
See United States v. Orito, 413 U.S. 139 (1973).
9
Pub. L. No. 95-225, 92 Stat. 7 (1978) (codified as amended at 18 U.S.C. §§ 2423, 2251-
2253).
10
458 U.S. 747, 102 S. Ct. 3348 (1982).
8
protection, holding that the government may constitutionally prohibit the creation
or promotion of pornography featuring real children even though it does not meet
the Miller standard. The primary rationale of Ferber was that child pornography
must be prohibited because of the intrinsic harm done to children in its
production.11 The Court reasoned that child pornography not only documents an
underlying act of abuse — the sexual use of a child — but the recording of the act
and subsequent circulation of the images perpetuates the injury to the depicted
child.12
In response to Ferber, Congress passed the Child Protection Act of 1984
(CPA),13 which was modeled on the New York statute upheld in Ferber. The CPA
expanded the definition of child pornography to include non-obscene but sexually
suggestive pictures of children and eliminated the commercial purposes
requirement of earlier proscriptions.
Interstate commerce advertisements and solicitations for child pornography were
banned by the Child Sexual Abuse and Pornography Act of 1986.14
11
Id. at 758, 102 S. Ct. at 335.
12
Id. at 759, 102 S. Ct. at 3355-56.
13
Pub. L. No. 98-292, 98 Stat. 204 (1984) (codified as amended at 18 U.S.C. §§ 2251-
2254, 2256, 2516).
14
Pub. L. No. 99-628, 100 Stat. 3510 (1986) (codified as amended in scattered sections
9
Congress first addressed the connection between child pornography and
emerging computer technology in the Child Protection and Obscenity Enforcement
Act of 1988,15 which prohibited the use of computers to transport, distribute, or
receive child pornography. Shortly thereafter, the Court held in Osborne v. Ohio16
that the Stanley right to private possession does not extend to child pornography
involving actual children because, unlike adult obscenity, it springs from a
grievous harm to children.
In the wake of Ferber and subsequent legislation, much of the child
pornography industry was driven underground. Then, during the 1990s, advances
in photographic and computer-imaging technology made production of child
pornography possible without directly employing children. Visual depictions of
what appeared to be children engaging in sexually explicit conduct, and that were
virtually indistinguishable from images of actual children engaging in such
conduct, could be generated. Further, with the advent of the Internet, these
“virtual” child pornography images, along with “real” child pornography images,
could be readily distributed. However, because the Ferber standard only
of 18 U.S.C.).
15
Pub. L. No. 100-690, 102 Stat. 4485 (1988) (codified as amended at 18 U.S.C. §§
2251, 2252).
16
495 U.S. 103, 109-11 (1990).
10
addressed “live performances,” and the visual recordation of same, the existing
law left loopholes for the computer-generated images.17
To keep pace with these technological developments, Congress passed the
Child Pornography Prevention Act of 1996 (CPPA).18 Congress reasoned that
these images, while not involving the use of actual children in their production,
would still cause sufficient harm to children to justify banning them in the same
way as “real” child pornography. Under the CPPA, the definition of child
pornography was extended to cover any visual image that “is, or appears to be, of
a minor engaging in sexually explicit conduct”19 or that has been promoted in a
manner that “conveys the impression” that a minor engaging in sexually explicit
conduct is depicted.20 The latter prohibition was referred to as the CPPA’s
“pandering” provision. The circuit courts that considered challenges to the CPPA
were split, with four circuits sustaining the Act as constitutional21 while the Ninth
17
Ferber, 458 U.S. at 764-65, 102 S. Ct. at 3358.
18
Pub. L. No. 104-208, 110 Stat. 3009 (1996) (codified as amended at 18 U.S.C. §§ 2251
et seq.)
19
18 U.S.C. § 2256(8)(B) (1996) (invalidated 2002, amended 2003).
20
18 U.S.C. § 2256(8)(D) (1996) (invalidated 2002, amended 2003).
21
United States v. Fox, 248 F.3d 394 (5th Cir. 2001), vacated by 535 U.S. 1014, 122 S.
Ct. 1602 (2002); United States v. Mento, 231 F.3d 912 (4th Cir. 2000); United States v. Hilton,
167 F.3d 61 (1st Cir. 1999); United States v. Acheson, 195 F.3d 645 (11th Cir. 1999).
11
Circuit struck it down as overbroad and vague.22 The Supreme Court granted
certiorari in the Ninth Circuit case to resolve the circuit split.
D. The Supreme Court’s Decision in Free Speech Coalition
In Ashcroft v. Free Speech Coalition,23 the Supreme Court struck down as
unconstitutionally overbroad the two above-referenced subsections of the CPPA’s
definition of child pornography. The first defined child pornography as any visual
depiction, including a computer-generated depiction that “is, or appears to be, of a
minor engaging in sexually explicit conduct.”24 The second, CPPA’s “pandering”
provision, defined child pornography as a “visual depiction [that] is advertised,
promoted, presented, described, or distributed in such a manner that conveys the
impression that the material is or contains a visual depiction of a minor engaging
in sexually explicit conduct.”25 The Court held that these definitions reached more
than what could constitutionally be banned as unprotected speech under current
obscenity law.26
22
Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999).
23
535 U.S. 234, 122 S. Ct. 1389 (2002).
24
18 U.S.C. § 2256(8)(B) (1996) (invalidated 2002, amended 2003).
25
18 U.S.C. § 2256(8)(D) (1996) (invalidated 2002, amended 2003).
26
See Free Speech Coalition, 535 U.S. at 240, 251, 122 S. Ct. at 1396, 1402 (citing
Miller, 413 U.S. 15, 93 S. Ct. 2607 (1973), and Ferber, 458 U.S. 747, 102 S. Ct. 3348 (1982)).
12
The first definition was deemed overbroad because it prohibited speech
(virtual or computer depictions, artistic works, or cinematic depictions of youthful
actors) that was not obscene under Miller, and which recorded no crime and
created no victims through its production, as did the “real” child pornography in
Ferber.27 The second definition, the “pandering” provision, was deemed
overbroad because it defined as child pornography materials that had been
promoted “convey[ing] the impression” that sexually explicit depictions involving
minors would be found within the material, even when, in fact, there were no such
scenes. This subsection thus criminalized downstream possession of material
described, or pandered, as child pornography by someone earlier in the
distribution chain even if no minors were actually involved in the production.
Finding the government’s evidence insufficient to show any harm in material
merely pandered as containing child pornography, the Court criticized the
27
The Court noted that, although they clearly could not be considered obscene under
Miller, Renaissance paintings, productions of Shakespeare’s “Romeo and Juliet,” and noteworthy
films such as “Traffic” and “American Beauty” could be swept within the ambit of the CPPA,
since arguably they contain some graphic depictions that “appear to be” of minors engaging in
sexual activity (even though such images neither involve nor harm children in the production
process), and because the CPPA provided no pause for inquiry into the work’s redeeming value
considered in totality. 535 U.S. at 246-48, 122 S. Ct. at 1400.
13
provision because it criminalized speech based solely “on how the speech is
presented” rather than on “what is depicted.”28
Although the Court found the CPPA inconsistent with Miller and lacking
support in Ferber, the government attempted to justify the definitions in other
ways. The government argued that virtual child pornography can be used to
seduce children into participating in sexual activity, and that such materials also
“whets the appetites” of pedophiles, encouraging them to engage in illegal
conduct.29 The Court rejected these arguments, noting that other laws, such as
those that prohibit unlawful solicitation of a minor, more closely regulate the
unsavory use of virtual child pornography; and that the government may not
prohibit speech on the grounds that it may merely encourage, and not incite,
pedophiles to engage in illicit conduct.30
The government next argued that its objective of eliminating the market for
“real” child pornography necessitates a prohibition on virtual images as well
because, since they are often indistinguishable and traded in the same market, the
synthetic images promote the trafficking of works produced through the
28
Id.. at 257, 122 S. Ct. at 1405-06.
29
Id. at 251-53, 122 S. Ct. at 1402-03.
30
Id. at 251-54, 122 S. Ct. at 1402-04.
14
exploitation of real children.31 The Court rejected this market deterrence theory,
noting that, “[i]n the case of the material covered by Ferber [depictions of actual
minors engaged in sexual acts], the creation of the speech is itself the crime of
child abuse; the prohibition deters the crime by removing the profit motive.”32 In
other words, because no crime underlies the production of virtual child
pornography, the production-based rationale set forth in Ferber does not apply to
synthetic images.
Finally, the Court rejected the government’s argument that, since advanced
technology makes it difficult to tell whether pictures were made with real children
or computer imaging, thus thwarting prosecutorial efforts, both kinds of images
must be banned. The Court stated that the argument, “that protected speech may
be banned as a means to ban unprotected speech . . . . turns the First Amendment
upside down.”33
E. The PROTECT Act
31
Id. at 254, 122 S. Ct. at 1404.
32
Id. (citing Osborne v. Ohio, 495 U.S. 103, 109-110, 110 S. Ct. 1691(1990)).
33
Id. at 255, 122 S. Ct. at 1404. The Court also found that the CPPA’s affirmative
defense, which allowed offenders in some cases to avoid conviction for nonpossession offenses
by showing that materials were produced using only adults and were not otherwise distributed in
a manner conveying the impression that they depicted real children, was insufficient to rescue the
statute from overbreadth because it was incomplete and shifted the burden to the defendant to
prove his speech was not unlawful. Id.
15
Almost immediately after the Free Speech Coalition decision was handed
down, Congress began an effort to craft responsive legislation. Two pieces of
proposed legislation aimed at revising the objectionable provisions of the CPPA
were introduced in the Senate and the House.34 There was significant debate about
key provisions in the competing bills, including the proposed revisions to the
pandering provision.35 Despite ongoing disagreement, the houses compromised
and passed the PROTECT Act, now codified in scattered sections of 18 U.S.C.
The revised pandering provision of the PROTECT Act at issue in this case,
18 U.S.C. § 2252A(a)(3)(B), provides that any person who knowingly —
(B) advertises, promotes, presents, distributes, or solicits through the
mails, or in interstate or foreign commerce by any means,
including by computer, any material or purported material in a
manner that reflects the belief, or that is intended to cause another
to believe, that the material or purported material is, or contains
—
(i) an obscene visual depiction of a minor
engaging in sexually explicit conduct; or
34
The Senate introduced S. 151, the Prosecutorial Remedies and Other Tools to End the
Exploitation of Children Today Act of 2003 (PROTECT Act), and the House introduced H.R.
1161, the Child Obscenity and Pornography Prevention Act of 2003 (COPPA).
35
To illustrate, after the House reviewed the Senate’s version, it offered an “amendment”
to the Senate bill on March 27, 2003, which, in reality, was a recommendation that the Senate’s
language be replaced in its entirety with the House’s version found in the COPPA. (Compare
House Amendment to S. 151, Title §§ 501-512 (March 27, 2003) with H.R. 1161, 108th Cong. at
§§ 1-4 (2003) (identical language)).
16
(ii) a visual depiction of an actual minor engaging
in sexually explicit conduct;
commits a criminal offense. For the purposes of this provision, a “minor” means
“any person under the age of eighteen years”36 and “sexually explicit conduct” is
defined 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 of any person.”37
Any person who violates, or attempts or conspires to violate, the pandering
prohibition is subject to a fine and imprisonment for a minimum of five years and
up to twenty years.38 It is an affirmative defense for certain reproducers,
distributors, recipients, and possessors of child pornography charged under other
subsections of § 2252A that the alleged child pornography depicts actual adults
36
18 USC § 2256(1).
37
18 U.S.C. § 2256(2).
38
18 USC § 2252A(b)(1).
17
rather than minors or that no “actual” minors were involved in the production.39
However, the affirmative defense expressly does not apply to the pandering
provision.40
F. What Congress Has Done Differently
At the outset of our discussion, we note that the new pandering provision
allays certain concerns voiced by the Court in Free Speech Coalition. First, the
Court’s primary objection to the CPPA’s pandering provision was that pandered
materials were criminalized for all purposes in the hands of any possessor based
on how they were originally pandered.41 By moving the pandering provision from
the definitions section to a stand-alone status, and using language that targets only
the act of pandering, the new provision has shifted from regulation of the
underlying material to regulation of the speech related to the material. This
remedies the problem of penalizing individuals farther down the distribution chain
for possessing images that, despite how they were marketed, are not illegal child
pornography.
39
18 U.S.C. § 2252A(c).
40
Id.
41
535 U.S. at 257-58, 122 S. Ct. at 1405-06 (“Materials falling within the proscription
are tainted and unlawful in the hands of all who receive it, though they bear no responsibility for
how it was marketed, sold, or described.”).
18
With respect to its legislative findings for the PROTECT Act, Congress
largely abandons the secondary effects and market deterrence justifications found
wanting by the Court in Free Speech Coalition, although it does reiterate the need
to ensure that the result of Ferber — driving illegal child pornography from the
bookshelves — is extended to extinguish the “open and notorious trafficking in
such materials” on the Internet.42 Congress instead focuses primarily on beefing
up its findings that technological advancements since Free Speech Coalition have
increased the prosecutorial difficulties raised by the ready availability of
technology able to disguise depictions of real children (proscribable under Ferber)
to make them unidentifiable or to make them appear computer-generated
(defensible under Free Speech Coalition).43
Finally, the PROTECT Act provides a new definition for child pornography,
which in addition to “real” child images includes (1) any digital or computer-
generated image that is “indistinguishable” from that of a minor engaging in
sexually explicit conduct,44 and (2) a visual depiction that has been created or
42
Congressional Findings, § 501 at (15).
43
Id. at (4)-(13).
44
The definition of sexually explicit conduct for “indistinguishable” images is slightly
narrower than the one attached to the pandering provision as set out above, requiring that
depictions of sexual intercourse or lascivious exhibitions of the genital or pubic area also be
“graphic” (18 U.S.C. § 2256(2)(B)), meaning “that a viewer can observe any part of the genitals
19
modified to appear as an identifiable minor engaging in sexually explicit
conduct.45 The PROTECT Act also amended the general obscenity statute to
define a new category of unprotected synthetic child pornography that
incorporates, in part, the Miller definition. That law now prohibits the production,
distribution, receipt or possession, in an interstate commerce setting, of (1)
obscene visual depictions of any kind that depict a minor engaging in sexually
explicit conduct, and (2) any visual depiction that is, or appears to be, of a minor
engaging in certain enumerated “hard core” acts and lacks serious literary, artistic,
political, or scientific value.46 Thus a virtual depiction of a minor involved in any
of the expressly listed acts is outlawed even where only one of the three Miller
prongs is explicitly satisfied.47 Because the materials Williams possessed were
unquestionably depictions of “real” children, these new virtual child pornography
definitions are not directly at issue in this case, but the limitations of their reach
or pubic area of any depicted person or animal during any part of the time that the sexually
explicit conduct is being depicted . . .” 18 U.S.C. § 2256(10).
45
18 U.S.C. § 2256(8). As discussed above, the affirmative defense that no real child
was involved in the production of child pornography, which the Court found incomplete under
the CPPA, has been extended to most possessors and distributors of these defined materials.
46
18 U.S.C. § 1466A(a)-(d). The enumerated acts are “graphic bestiality, sadistic or
masochistic abuse or sexual intercourse, including genital-genital, oral genital, anal-genital, or
oral-anal, whether between persons of the same or opposite sex . . .” Id. at § 1466A(a)(2)(A).
47
The general obscenity statute provides no affirmative defense that no real child was
involved in the production of the image.
20
have implications regarding Congress’s purpose for enacting the pandering
provision, as we discuss below. For example, the definitions do not capture
innocent pictures of children that pedophiles view, collect, and trade as “dirty”
pictures. And it remains to be seen whether the Supreme Court will find
acceptable the PROTECT Act’s truncation of the Miller obscenity standard with
respect to child pornography.
G. Williams’s Overbreadth Challenge
Under the overbreadth doctrine, a statute that prohibits a substantial amount
of constitutionally protected speech is invalid on its face.48 Williams asserts that
the PROTECT Act prohibition of speech that “reflects the belief, or that is
intended to cause another to believe” that materials contain illegal child
pornography is no different than the CPPA’s prohibition of images that “appear to
be” or “convey the impression” of minors engaged in sexually explicit conduct
that was struck down as overbroad in Free Speech Coalition.
We begin our analysis with the recognition that subsections (i) and (ii) of
the PROTECT Act pandering provision capture perfectly what remains clearly
restrictable child pornography under pre- and post-Free Speech Coalition Supreme
48
Free Speech Coalition, 535 U.S. at 255, 122 S. Ct. at 1404 (citing Broadrick v.
Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908 (1973)).
21
Court jurisprudence: obscene simulations of minors engaged in sexually explicit
conduct and depictions of actual minors engaged in same. As reviewed above, the
government may constitutionally regulate, on interstate commerce grounds, the
transportation and distribution of obscene material, even if it is legal to hold
privately (i.e. non-real child pornography),49 and may outlaw “real” child
pornography for all purposes, including private possession.50 However, the
PROTECT Act pandering provision criminalizes not the speech expressed in the
underlying materials described in (i) and (ii), but the speech promoting and
soliciting such materials. The question before us is whether the restriction on that
speech is too broad.
1. The Government may wholly prohibit commercial speech that is
false or proposes an illegal transaction.
We recognize that, if we consider the pandering provision as purely a
restriction of commercial speech, we do not apply strict overbreadth analysis.51
49
Orito, 413 U.S. at 141, 93 S. Ct. at 2676.
50
Osborne. 495 U.S. at 110, 110 S. Ct. at 1696; Ferber, 458 U.S. at 760, 102 S. Ct. at
3359.
51
See Bd. of Tr. of the State Univ. of New York v. Fox, 492 U.S. 469, 477-81, 109 S. Ct.
3028, 3033-35 (1989) (holding that the “least restrictive means” test does not apply to
commercial speech cases); see also Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 463 n.20, 98
S. Ct. 1912, 1922 (1978) (observing that “the justification for applying overbreadth analysis
applies weakly, if at all, in the ordinary commercial context” because “[c]ommercial speech is
not as likely to be deterred as noncommercial speech” and therefore does not require the added
22
Instead, we determine whether the government has narrowly tailored any content-
based regulation on protected speech, that is neither misleading nor related to
unlawful activities, to achieve its desired legitimate objectives.52 Under this
analysis, the government may prohibit completely the advertisement or solicitation
of an illegal product or activity as well as false or misleading advertisement
because neither is protected speech.53 If a person possessing or seeking either
obscene synthetic child pornography or “real” child pornography, offers to sell or
buy it, this is unlawful commercial activity that the government may
constitutionally proscribe. If a person does not have obscene or “real” child
pornography but offers such things for sale, then the offeror is engaged in false or
misleading advertising, which the government may likewise punish.
If all that the pandering provision stood for was that individuals may not
commercially offer or solicit illegal child pornography nor falsely advertise non-
obscene material as though it were, the Government need not show that it has
narrowly tailored its restriction because neither of these scenarios involve
protection afforded by the overbreadth doctrine to third parties not before the bar).
52
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 100 S. Ct.
2342 (1980) (setting out the constitutional test for restrictions on commercial speech).
53
See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425
U.S. 748, 770, 96 S. Ct. 1817, 1829-30 (1976).
23
protected speech. We observe, however, that false or misleading commercial
advertising is already addressed under other state and federal laws, which are
aimed at protecting consumers from fraud. Here, under legislation aimed at
protecting children, the only person who is harmed by misleading speech, even if
it preys on the basest of motives, is the would-be buyer of illegal child
pornography, and that individual is scarcely in a position to complain. Also,
although the the penalties for false commercial advertising are not specifically
raised here,54 we note that a mere false commercial advertiser is punished on par
with an actual child pornographer, without regard to the actual content or even
existence of underlying material. Thus, a person offering for sale a copy of
Disney’s Snow White on false claims that it contains depictions of minors engaged
in sexually explicit conduct has committed a crime punishable by a fine and at
least five- and up to twenty-years’ imprisonment,55 a decidedly disproportionate
and draconian penalty.
Because the First Amendment allows the absolute prohibition of both
truthful advertising of an illegal product and false advertising of any product and
54
The materials touted by Williams in this case were clearly illegal child pornography
and we do not, in the commercial context, consider the overbreadth chilling effect on third
parties not before the court.
55
18 U.S.C. § 2252A(b)(1).
24
because, in the commercial context, we have before us no challenge to the severity
of punishment meted out for such behavior, the pandering provision would likely
pass our muster as a prohibition of unprotected forms of commercial speech, if
that were all it proscribed. However, the law is not limited to commercial
exploitation and continues to sweep in non-commercial speech. Accordingly, we
must move to the question of whether the restriction on such non-commercial
speech is constitutionally overbroad.
2. The PROTECT Act pandering provision continues to sweep in
protected non-commercial speech.
Because it is not limited to commercial speech but extends also to non-
commercial promotion, presentation, distribution, and solicitation, we must subject
the content-based restriction of the PROTECT Act pandering provision to strict
scrutiny, determining whether it represents the least restrictive means to advance
the government’s compelling interest or instead sweeps in a substantial amount of
protected speech.56 Under this analysis, we find the language of the provision
problematic for three reasons.
First, that pandered child pornography need only be “purported” to fall
under the prohibition of §2252A(a)(3)(B) means that promotional or speech is
56
United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 120 S. Ct. 1878 (2000).
25
criminalized even when the touted materials are clean or non-existent. We echo
Senator Leahy’s concern that the provision thus “federally criminalize[s] talking
dirty over the Internet or the telephone when the person never possesses any
material at all.”57 In a non-commercial context, any promoter — be they a
braggart, exaggerator, or outright liar — who claims to have illegal child
pornography materials is a criminal punishable by up to twenty years in prison,
even if what he or she actually has is a video of “Our Gang,” a dirty handkerchief,
or an empty pocket.
Further, while the commercial advertisement of an unlawful product or
service is not constitutionally protected, this feature of the Supreme Court’s
commercial speech doctrine does not apply to non-commercial speech, where the
description or advocacy of illegal acts is fully protected unless under the narrow
circumstances, not applicable here, of immediate incitement. The First
Amendment plainly protects speech advocating or encouraging or approving of
otherwise illegal activity, so long as it does not rise to “fighting word” status.58
57
S. REP. NO . 108-2, title VIII, at 23 (2003).
58
See Free Speech Coalition, 535 U.S. at 253, 122 S. Ct. at 1403 (citing Brandenburg v.
Ohio, 395 U.S. 444, 447, 89 S. Ct. 1827 (1969) (holding advocacy of racist violence protected
speech)). See also Kingsley Int’l Pictures Corp. v. Regents of the Univ. of State of N.Y., 360 U.S.
684, 79 S. Ct. 1362 (1959) (holding advocacy of immoral activities was protected speech).
26
Thus, the non-commercial, non-inciteful promotion of illegal child pornography,
even if repugnant, is protected speech under the First Amendment.
Finally, we find particularly objectionable the criminalization of speech that
“reflects the belief” that materials constitute obscene synthetic or “real” child
pornography. Because no regard is given to the actual nature or even the existence
of the underlying material, liability can be established based purely on
promotional speech reflecting the deluded belief that real children are depicted in
legal child erotica, or on promotional or solicitous speech reflecting that an
individual finds certain depictions of children lascivious.59
Because lascivious is not defined under the PROTECT Act, we apply its
ordinary meaning of “exciting sexual desires; salacious.”60 What exactly
constitutes a forbidden “lascivious exhibition of the genitals or pubic area”61 and
how that differs from an innocuous photograph of a naked child (e.g. a family
photograph of a child taking a bath, or an artistic masterpiece portraying a naked
child model) is not concrete. Generally, courts must determine this with respect to
59
18 U.S.C. §§ 2252A(a)(3)(B)(ii), 2256(2)(A)(v).
60
AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 4th Ed. (2000)
61
18 U.S.C. § 2256(2)(A)(v).
27
the actual depictions themselves.62 While the pictures needn’t always be “dirty” or
even nude depictions to qualify, screening materials through the eyes of a neutral
factfinder limits the potential universe of objectionable images.63
In this case, however, the law does not seek to attach liability to the
materials, but to the ideas and images communicated to the viewer by those
materials. This shifts the focus from a community standard to the perverted but
privately held belief that materials are lascivious. Through this lens, virtually all
depictions of children, whom to pedophiles are highly eroticized sexual objects,
are likely to draw a deviant response. Many pedophiles collect and are sexually
stimulated by nonpornographic depictions of children such as commercially
produced images of children in clothing catalogs, television, cinema, newspapers,
62
Virtually all lower courts that have addressed the meaning of “lascivious exhibition”
have embraced the widely followed “Dost” test, originally developed by a California district
court and affirmed in an opinion by the Ninth Circuit. United States v. Dost, 636 F. Supp. 828,
832 (S.D. Cal. 1986) judgm’t aff’d, United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987).
The test identifies six factors that are relevant to the determination of whether a picture
constitutes a “lascivious exhibition of the genitals or pubic area” under child pornography law.
63
The Third Circuit has held that a depiction can constitute “lascivious exhibition of the
genitals” even if a child is wearing clothes. United States v. Knox, 32 F.3d 733, 746 (3d Cir.
1994) (discussing the discernability of young girls’ genitals through “thin but opaque clothing”).
Although the material was purchased by Knox for sexual stimulation, the videotapes seized from
him did not portray explicit sexual acts nor even depict nudity; rather, they contained “vignettes
of teenage and preteen females” engaged in baton twirling and gymnastics routines and
sometimes “striking provocative poses for the camera.” Id. We note that the requirement that
lascivious exhibitions be “graphic” under the PROTECT Act’s amended obscenity definition
likely eliminates a Knox result under the obscenity statute. See n.46, supra. However, that
narrower definition does not apply to the pandering provision.
28
and magazines — otherwise innocent pictures that are not traditionally seen as
child pornography and which non-pedophiles consider innocuous.64 As illustrated
in this case, relatively innocent candid snapshots of children, such as those
initially exchanged by the defendant Williams and the undercover agent, are also
collected and used as a medium of exchange. We cannot, however, outlaw those
legal and mainstream materials and we may not outlaw the thoughts conjured up
by those legal materials.
Freedom of the mind occupies a highly-protected position in our
constitutional heritage. Even when an individual’s ideas concern immoral
thoughts about images of children, the Supreme Court has steadfastly maintained
the right to think freely. As the Court stated in Free Speech Coalition, “First
Amendment freedoms are most in danger when the government seeks to control
thought or 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
64
Amy Adler, The Perverse Law of Child Pornography, 101 COLUM . L. REV . 209, 259-
260 (2001). The highly eroticized use of children in fashion, television, and advertising is now
the “soft porn” of child pornography. Id. Members of the North American Man Boy Love
Association (NAMBLA — an organization for pedophiles, many of whom are in prison)
reportedly find erotic stimulation by watching children on network television, the Disney
channel, and mainstream films. Id. at 260. As one investigator put it: “I had found NMBLA’s
‘porn’ and it was Hollywood. Id. (citation omitted)
29
speech is the beginning of thought.”65 The Court reiterated that the concern with
child pornography is “physiological, emotional, and mental health” of children,
and thus regulation is permissible only when targeted at the evils of the production
process itself, and not the effect of the material on its eventual viewers.66 The
PROTECT Act pandering provision misses that target and, instead, wrongly
punishes individuals for the non-inciteful expression of their thoughts and
beliefs.67 However repugnant we may find them, we may not constitutionally
suppress a defendant’s beliefs that simulated depictions of children are real or that
innocent depictions of children are salacious.
3. The Supreme Court’s decision in Ginzburg does not support
pandering as an independent offense
The Government’s central justification for the pandering provision, found
convincing by the district court, relies on the Supreme Court’s decision in
Ginzburg v. United States,68 for the proposition that an individual may be found
65
535 U.S. at 253, 122 S. Ct. at 1403 (finding that the fact that possession of non-
obscene virtual child pornography may cause sexually immoral thoughts about children was not
enough to justify banning it).
66
Id.
67
Stanley, 394 U.S. at 566, 89 S. Ct. at 1249 (stating that legislator’s “cannot
constitutionally premise legislation on the desirability of controlling a person’s private
thoughts”).
68
383 U.S. 463, 86 S. Ct. 942 (1966).
30
criminally liable for promoting material as appealing to prurient interests even
though the material actually being promoted might not fall outside the First
Amendment’s protection. We believe that reliance is ill-grounded.
In Ginzburg, erotic publications that were not “hard core” pornography, and
may not have been obscene per se, became the subjects of conviction because their
prurient qualities were exploited, or pandered, by the defendant for commercially
sexual purposes. The Court found that evidence of the manner in which the
publications were advertised and mailed “was relevant in determining the ultimate
question of obscenity,” and that evidence of such pandering on the basis of
salacious appeal “may support the determination that the material is obscene even
though in other contexts the material would escape such condemnation.”69 In Free
Speech Coalition, the Court recognized the limited scope of the pandering
rationale expressed in Ginzburg: that “in close cases evidence of pandering may
be probative with respect to the nature of the material in question and thus satisfy
the [obscenity] test.”70 The Court also suggested that Ginzburg has no application
69
Id. at 470, 476, 86 S. Ct. at 947, 950.
70
535 U.S. at 258, 122 S. Ct. at 1406 (quoting Ginzburg at 474, 86 S. Ct. 942). The
Court in Ginzburg applied the test for obscenity set out in Roth v. United States, 354 U.S. 476, 77
S. Ct. 1304 (1957), which preceded the current Miller test, but the differences between the tests
are immaterial for the purposes of our analysis.
31
where, as in the case of the CPPA, “[t]he statute does not require that the context
be part of an effort at commercial exploitation.”71
We disagree with the district court that Ginzburg supports a prohibition of
pandering as a stand-alone crime without regard to the legality, or even to the
existence, of the pandered material. First, we note that, notwithstanding its brief
mention by the Court in Free Speech Coalition, there is some question as to the
continued vitality of the Ginzburg pandering rationale. Shortly after Ginzburg
was decided, the Supreme Court held in Virginia State Board of Pharmacy v.
Virginia Citizens Consumer Council, Inc.72 that truthful, non-misleading
commercial speech is protected by the First Amendment, although to a lesser
degree than protected non-commercial speech. The sort of pandering that caused
the publications in Ginzburg to be found obscene, in other words, has since gained
some First Amendment protection. In one of two post-Ginzburg cases in the
1970s, a dissent joined by four justices states that “Ginzburg cannot survive
Virginia Pharmacy.”73 While the Supreme Court has not substantially addressed
the Ginzburg pandering rationale since the 1970s, Justice Stevens more recently
71
Id. (internal quotation marks and citation omitted).
72
425 U.S. 748, 96 S. Ct. 1817 (1976),
73
Splawn v. California, 431 U.S. 595, 603 n.2, 97 S. Ct. 1987 (1977) (Stevens, J.,
dissenting).
32
reiterated that, since Ginzburg was decided before the Court extended First
Amendment protection to commercial speech, a proposal that otherwise legal
material be deemed obscene on the basis of its titillating marketing, is
“anachronistic.”74 Consequently, although Ginzburg has not been overturned, its
precedential value is questionable.
Even if the Ginzburg pandering rationale remains viable, the PROTECT Act
pandering provision, as discussed above, is not limited to the commercial context.
In considering the CPPA pandering provision at issue in Free Speech Coalition,
the Court clearly suggested that, even if the Ginzburg pandering rationale remains
viable, it would only apply in a the commercial context.75 The PROTECT Act
pandering provision, like the CPPA pandering provision found unconstitutional in
Free Speech Coalition, does “not require that the context be part of an effort at
‘commercial exploitation.’”76
Finally, to the extent that the Ginzburg pandering rationale remains valid, it
lends little constitutional support to the pandering provision at issue here. With
respect to the “obscene” virtual or simulated material described under subsection
74
Playboy Entm’t Group, Inc., 529 U.S. at 829 120 S. Ct.1878 (Stevens, J., concurring).
75
535 U.S. at 258, 122 S. Ct. at 1406 (2002).
76
Id. (citation and internal quotation marks omitted).
33
(ii), if the pandering rationale remains valid, then it might be the basis for a court
to uphold a conviction under the PROTECT Act for distributing material of
questionable social value that would not be deemed obscene but for the
defendant’s promotion of it suggesting that it was. But if the rationale holds, then
this would be the case under existing obscenity law and the pandering provision
adds nothing in that respect. The rationale does not justify a prosecution under the
PROTECT Act that goes farther than existing obscenity law by attempting to
convict a defendant for distributing material that is clearly not obscene, merely
because the defendant pandered it as obscenity.77
With respect to “real” child pornography as described under subsection (ii),
the Ginzburg pandering rationale is of no relevance. If the pandering rationale
remains relevant to determinations of obscenity, it does so because such
determinations are made by a subjective test that weighs a publication’s degree of
77
A congressional report offers the example of the movie “Carnal Knowledge,” which
the Supreme Court found not to be obscene because it was not patently offensive. See H. Cohen,
CRS Report for Congress: Child Pornography: Constitutional Principles and Federal Statutes
Produced Without an Actual Child: Constitutionality of 108th Congress Legislation (2003)
(citing Jenkins v. Georgia, 418 U.S. 153, 94 S. Ct. 2750 (1974)). Under the PROTECT Act, if a
defendant distributed “Carnal Knowledge” “in a manner that “reflects the belief, or that is
intended to cause another to believe” that it contained an obscene visual depiction of a child, then
the defendant would be guilty of a crime. Id. But the pandering rationale of Ginzburg allows
merely “that in close cases evidence of pandering may be probative” of obscenity. Id. “Carnal
Knowledge,” because of the Supreme Court decision, is not a close case; therefore, to distribute
it in a pandering manner would not make it obscene. Id.
34
social value under the Miller test. Ginzburg held only that pandering may be
probative of those factors. Determinations of “real” child pornography as
described in subsection (ii), on the other hand, are made by a purely objective test:
whether or not the material visually depicts an actual minor engaged in sexually
explicit conduct. The manner in which the material is promoted has no bearing on
the answer to this question. As one commentator observed, “[n]o amount of
pandering, even misleading pander, can convert a virtual child into a real child.”78
In sum, the Government urges us to read the PROTECT Act as writing the
Ginzburg pandering rationale into the law. We note that at least one state law
concerning obscene visual depictions of children has succinctly done just that.79
But the Government asks us to stretch that rationale much farther, to support
pandering as an independent crime rather than only as evidence of the crime of
obscenity or child pornography. We believe such an interpretation of Ginzburg
butts directly against the holding of Free Speech Coalition and, accordingly, find
78
Stopping Child Pornography: Protecting Our Children and the Constitution: Hearing
on S. 2520 Before the Senate Comm. On the Judiciary, 107th Cong. (2002) (testimony of Harvard
School of Law Professor Frederick Schauer).
79
See, e.g., ALA . CODE § 13A-12-195 (2005), providing that “[w]here the circumstances
of the dissemination or public display of matter indicates that it is being commercially exploited
by the defendant for its prurient appeal, such evidence may be considered in determining whether
the matter appeals to the prurient interest, is patently offensive, or lacks serious literary, artistic,
political or scientific value.”
35
that Ginzburg does not rescue the PROTECT Act pandering provision from
substantial overbreadth.80
4. The PROTECT Act pandering provision is not justified by
legislative findings.
The pandering provision of the PROTECT Act, for reasons we have
discussed, is inconsistent with Miller and Ferber, as reaffirmed in Free Speech
Coalition, and is not sustainable under Ginzburg. The Government, however,
seeks to justify its prohibitions in other ways.
First, noting the state’s compelling interest in protecting children from those
who sexually exploit them, Congress relies on Ferber and Osborne for the
80
Because it was an issue much debated by Congress and commentators in the wake of
Free Speech Coalition, we do not ignore the “Romeo and Juliet” problem discussed at length in
that case. See n.27, supra. The Court’s concern with outlawing material either containing a
depiction that “appear[ed] to be” a minor engaging in sexually explicit conduct or that was
presented or promoted “in a manner that convey[ed] the impression” that it contained such
depictions, was that the whole aim of dramatic presentation is to make fictional happenings
“appear” to be real. Under the overbroad definition of the CPPA, non-obscene movies
employing youthful actors to simulate minors engaged in apparent sexually explicit conduct
could be ensnared, even though no child was involved in the production
Here, Williams urges that the PROTECT Act’s “intended to cause another to believe”
language is no different than the “appears to be” and “conveys the impression that” language
found overbroad by the Court. While the Government argues it is a cure,
we do not, for reasons discussed in this section, find the insertion of the word “obscene” into the
material description particularly meaningful in avoidance of sweeping in meritorious works
where the statute is punishing activity that is unrelated to the actual contents of the material. And
if there is otherwise a constitutionally relevant distinction between the sweep of PROTECT and
COPPA in this regard, it is a fine one. Whether, in an industry that functions on the suspension
of disbelief, legitimate presenters and promoters of artistically meritorious films intend that
viewers truly “believe” real minors are involved in such productions or, rather, simply invite the
viewer imagine, is debatable. Because we find the Act infirm on a number of other fronts, we
need not split this hair.
36
proposition that this interest extends to stamping out the market for child
pornography.81 However, Congress has not adequately explained why the mere
pandering of otherwise legal material should be prohibited in the pursuit of this
interest.
In the PROTECT Act’s Conference Report, Congress mentions that “even
fraudulent offers to buy or sell unprotected child pornography help to sustain the
illegal market for this material.”82 This appears to be a resurrection of the market-
deterrence theory advanced by the Government, and rejected by the Court, in Free
Speech Coalition. As the Court recognized, the prohibitions of “real” child
pornography in Ferber and Osborne were upheld on a production-based rationale.
The Court in Ferber allowed market deterrence restrictions because they destroyed
the profit motive to exploit real children. Congress has again failed to articulate
specifically how the pandering and solicitation of legal images, even if they are
promoted or believed to be otherwise, fuels the market for illegal images of real
children engaging in sexually explicit conduct.
81
Congressional Findings (501) at (2)-(3) (citing Osborne v. Ohio, 495 U.S. 103, 110
(1990) and quoting New York v. Ferber 458 U.S. 747, 760 (1982) (“The most expeditious if not
the only practical method of law enforcement may be to dry up the market for this material by
imposing severe criminal penalties on persons, selling, advertising, or otherwise promoting the
product.”)).
82
H.R. REP. NO . 108-66, Title V, at 62 (2003).
37
Next, the Government points to the legislative findings of the PROTECT
Act that articulate the difficulties in successful prosecution of child pornography
possession cases where advancements in computer technology allow images to be
so altered as to cast reasonable doubt on whether they involve real children.83
Congress characterizes the pandering provision as “an important tool for
prosecutors to punish true child pornographers who for some technical reason are
beyond the reach of the normal child porn distribution or production statutes.”84
The Government argues that, grounded on these findings, the pandering provision
allows prosecutions to go forward against persons who not only have the intent to
participate in the child pornography market, but who actively solicit others to
participate in that market, regardless of whether the government can prove
whether the underlying material is real child pornography or not. Without such
prosecutorial tools, it argues, the child pornography market will flourish, harming
real children.85
This argument not only attempts, once again, to revive the rejected market
proliferation rationale but also disregards the firmly established principle that
83
See Findings 501 at (10)-(13).
84
S. REP. NO . 108-2, Title VIII, at 23 (2003)(remarks of Sen. Patrick Leahy).
85
See Findings 501 at (13).
38
“[t]he Government may not suppress lawful speech as the means to suppress
unlawful speech..”86 And when the “technical reason” is that the material being
described or exchanged does not fall within one of the two proscribable categories
— but instead is legal child erotica, innocent pictures of children arousing only in
the minds of certain viewers, or non-existent — the Government cannot
circumvent the criminal procedure process. In a non-commercial setting, in which
most child pornography is discussed and exchanged, pandering at most either
raises actionable suspicion that illegal materials are possessed87 or is evidentiary of
the social merit of questionable materials. The Government must do its job to
determine whether illegal material is behind the pander.
The Government urges that we consider this simply an inchoate crime,
arguing that only those with specific intent to traffic in illegal child pornography
will be ensnared88 and noting, for example, that offers to buy or sell illegal drugs
86
Free Speech Coalition, 535 U.S. at 255, 122 S. Ct. at 1404.
87
A number of courts have held that affidavits that defendants had joined Internet e-
groups that members used to exchange child pornography provided probable cause to search their
home, although there was no evidence that the defendants had ever downloaded any illegal visual
depictions. See, e.g., United States v. Martin, 426 F.3d 83 (2d Cir. 2005) petition for cert. filed,
2006 WL 448514 (U.S. Feb. 16, 2006) (No. 05-1073) (holding that textual email about child
pornography exchanged by members of the e-group was not protected speech); United States v.
Coreas, 426 F.3d 615 (2d Cir. 2005) (same); United States v. Froman, 355 F.3d 882 (5th Cir.
2004)(same); United States v. Hutto, 84 Fed. Appx. 6 (10th Cir. 2003) (unpublished)(same).
88
See H.R. REP. NO . 108-66 (2003) (stating that the instant pandering provision “bans
the offer to transact in unprotected material, coupled with proof of the offender’s specific
39
can be punished even if no drugs actually exist. However, the inchoate offenses
— attempt, solicitation, conspiracy — are covered elsewhere in the code.89
Further, the intent element only applies to one portion of the provision —
promoting material in a manner “that is intended to cause another to believe” it is
illicit — and, to be a violator, one need not intend to distribute illegal materials,
but only intend that another believe the materials one has are lascivious. Also, a
defendant may be liable for promoting, distributing, or soliciting perfectly legal
materials that only he or she personally believes are lascivious. As Professor
Schauer notes, “when the non-existence of illegality is a function not of the non-
existence of an illegal product but rather the non-illegality of an existing product,
the First Amendment returns to the picture.”90 Finally, with any inchoate offense
intent.”); S. REP. NO . 108-2, at 10 n.6 (2003) (stating that the provision requires the government
to establish that the defendant acted with the specific intent to traffic in obscene material or
actual child pornography).
89
See 18 U.S.C. § 2252A(b)(1) (which expressly applies to the pandering provision) and
18 U.S.C. § 1466A(a) (criminalizing the attempt or conspiracy to produce or distribute obscene
or real child pornography).
90
Stopping Child Pornography: Protecting Our Children and the Constitution: Hearing
on S. 2520 Before the Senate Comm. On the Judiciary, 107th Cong. (2002) (testimony of
Professor Frederick Schauer). We note that this is also what differentiates the instant pandering
provision from state laws that criminalize the pandering of prostitution. While a defendant may
be convicted, for example, for soliciting sex from an undercover police officer, even though the
officer has no intention of actually consummating the deal, in a jurisdiction that has outlawed
prostitution, there is no circumstance under which sex for money may be legal. For this reason,
the Government’s “phantom” drug analogy is also unpersuasive.
40
the government must show some substantial movement toward completing the
crime, must prove, in other words, something beyond mere talk. Under the
PROTECT Act pandering provision, mere talk is all that is required for liability
and that does not square with Supreme Court First Amendment jurisprudence.
In sum, we recognize that Congress has a compelling interest in protecting
children and, to that end, may regulate in interstate commerce settings the
distribution or solicitation of the materials described in subsections (i) (obscene
child pornography) and (ii) (“real” child pornography) of the PROTECT Act
pandering provision. However, the pandering provision goes much farther than
that. The provision abridges the freedom to engage in a substantial amount of
lawful speech in relation to its legitimate sweep, and the reasons the Government
offers in support of such limitations have no justification in the Supreme Court’s
First Amendment precedents. Accordingly, we find it unconstitutionally
overbroad.
H. Williams’s Vagueness Challenge
The Government contends that, since the written plea agreement references
only Williams’s right to appeal his pandering conviction on grounds of
overbreadth, he has waived his vagueness challenge. We disagree. We recognize
that vagueness and overbreadth doctrines, although “logically related and similar,”
41
are distinct.91 However, plea bargains, as we have noted, are like contracts and
should be interpreted in accord with the parties’ intent.92 Further, a written plea
agreement should be viewed against the background of the negotiations, avoiding
interpretation that directly contradicts an oral understanding; and, because it
constitutes a waiver of substantial constitutional rights, should be read, where in
doubt, against the government.93 The record in this case clearly reflects the
parties’ intent to preserve Williams’s constitutional challenges under both
overbreadth and vagueness doctrines.94 That the written memorialization of that
agreement omitted the latter of these related grounds is insufficient to support
waiver.
Laws that are insufficiently clear are void for three reasons: (1) to avoid
punishing people for behavior that they could not have known was illegal; (2) to
avoid subjective enforcement of the laws based on arbitrary or discriminatory
91
Kolender v. Lawson, 461 U.S. 352, 358 n.8, 103 S.Ct. 1855 (1983).
92
United States v. Rubbo, 396 F.3d 1330, 1334 (11th Cir. 2005).
93
United States v. Nyhuis, 8 F.3d 731, 742 (11th Cir. 1993) (quoting United States v.
Jefferies, 908 F.2d 1520, 1523 (11th Cir. 1990).
94
Williams’s motion to dismiss was expressly raised on grounds that the pandering
provision was both overbroad and vague. The remarks of counsel during the plea colloquy
reference the parties’ agreement that Williams was preserving challenges under both doctrines
and the importance of a ruling on that motion to ensure preservation, especially as to the
vagueness claim, was discussed at some length by the parties and the court.
42
interpretations by government officers; and (3) to avoid any chilling effect on the
exercise of sensitive First Amendment freedoms.95 Thus, to pass constitutional
muster, statutes challenged as vague must give a person of ordinary intelligence a
reasonable opportunity to know what is prohibited and provide explicit standards
for those who apply it to avoid arbitrary and discriminatory enforcement.96
Vagueness concerns are more acute when a law implicates First Amendment rights
and a heightened level of clarity and precision is demanded of criminal statutes
because their consequences are more severe.97
In this case, considering a penal statute that both restricts speech and carries
harsh criminal penalties, it is not at all clear what is meant by promoting or
soliciting material “in a manner that reflects the belief, or that is intended to cause
another to believe” that touted or desired material contains illegal child
pornography. This language is 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
95
Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299 (1972).
With respect to chilling effects, the problems of vagueness and overbreadth are, plainly, closely
intertwined since those persons covered by the statutes are bound to limit their behavior to that
which is unquestionably safe.
96
Kolender, 461 U.S. at 357, 103 S. Ct. at 1858 (1983); Bama Tomato Co. v. U.S. Dept.
of Agriculture, 112 F.3d 1542 (11th Cir. 1997).
97
Village of Hoffman Estates, Inc. v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498,
499, 102 S. Ct. 1186 (1982).
43
conformed. Moreover, the proscription requires a wholly subjective determination
by law enforcement personnel of what promotional or solicitous speech “reflects
the belief” or is “intended to cause another to believe” that material is illegally
pornographic. Individual officers are thus endowed with incredibly broad
discretion to define whether a given utterance or writing contravenes the law’s
mandates.98
Suppose, for example, the government intercepts an email claiming that the
attached photographs depict “little Janie in the bath — hubba, hubba!” Does this
“reflect a belief” on the sender’s part that the photos are lascivious? As discussed
above, the law does not require the pandered material to contain any particular
content nor, in fact, that any “purported” material need actually exist. Since the
“reflects the belief” portion of the statute has no intent requirement, the
government establishes a violation with proof of a communication that it deems,
with virtually unbounded discretion, to be reflective of perverse thought.
98
See City of Chicago v. Morales, 527 U.S. 41, 119 S. Ct. 1849 (1999) (holding
unconstitutionally vague an anti-loitering ordinance, which defined loitering as remaining in
place with “no apparent purpose,” finding that standard “inherently subjective because its
application depends on whether some purpose is ‘apparent’ to the officer on the scene.”); City of
Houston, Tex. v. Hill, 482 US 451, 107 S. Ct. 2502 (1987) (finding unconstitutionally vague a
city ordinance prohibiting speech that “in any manner” interrupts a police officer in the
performance of his duties, without limitation to fighting words or to obscene or opprobrious
language).
44
Regardless of what is actually depicted in the photos in our example — whether
they are innocent baby-in-the-bubbles snapshots or candid stills of the family
Rottweiler in a No. 10 washtub — regardless, in fact, of whether any photos are
attached, this communication could be interpreted as criminal behavior. And
because the PROTECT Act’s affirmative defense does not apply to the pandering
provision, it is no defense to show that the underlying materials are not, in fact,
illegal child pornography.
Even more complex is the determination of what constitutes presentation in
a “manner that is intended to cause another to believe” that material contains
illegal child pornography. Let us consider, for example, an email entitled simply
“Good pics of kids in bed.” Let us also imagine that the “pics” are actually of
toddlers in footie pajamas, sound asleep. Sender One is a proud and computer-
savvy grandparent. Sender Two is a chronic forwarder of cute photos with racy
tongue-in-cheek subject lines. Sender Three is a convicted child molester who
hopes to trade for more graphic photos with like-minded recipients. If what the
statute required was a specific intent to traffic in illegal child pornography, the
identity of the sender and the actual content of the photos would be probative.
Senders One and Two would be off the hook while Sender Three may warrant
further investigation.
45
But again, the pandering provision requires no inquiry into the actual nature
or even existence of the images and provides no affirmative defense that the
underlying materials are not, in fact, illegal child pornography. The offense is
complete upon communication “in a manner that,” in the discretionary view of law
enforcement, “is intended to cause another to believe” that materials are illegal
child pornography. Here, the “manner” of presentation, as well as the plainly legal
underlying material, are identical in all three instances. And Sender Two clearly
intended that his recipients believe, however briefly, that the attached photos were
sexually explicit depictions of minors.
While posting in a known child pornography chat room would clearly
spotlight the true child abuser, in open cyberspace, which of these communicators
is a criminal?99 The pandering provision is devoid of any contextual parameters
for the restriction on conduct that might illuminate its meaning and rescue it from
vagueness.100 Absent such a contextual backdrop, the language of this law is too
99
See Reno v. ACLU, 521 U.S. 844, 876, 117 S. Ct. 2329 (1997) (recognizing that overly
vague restrictions may curtail a significant amount of protected speech in the relatively
borderless architecture of the Internet).
100
See, e.g., Boos v. Barry, 485 U.S. 312, 332, 108 S. Ct. 1157, 1169-70 (1988); (noting
that the court’s interpretation of the challenged statute as protecting the “peace” was sufficiently
precise because of the particular context of the peace of an embassy); Grayned, 408 U.S. at 112,
92 S. Ct. at 2304 (finding that an anti-noise ordinance was not vague where it was written
specifically to forbid disturbance of schools because “prohibited disturbances are easily measured
by their impact on normal activities of the school”).
46
imprecise a standard to provide sufficient guard against arbitrary deprivation of a
significant liberty interest.
We again recognize that Congress may regulate the distribution or
solicitation of the illegal materials described in subsections (i) (obscene child
pornography) and (ii) (“real” child pornography) of the pandering provision. If
that were all the provision did, we would find no constitutional infirmity on
vagueness grounds. However, the statute is unnecessarily muddled by the
nebulous “purported material” and “reflects the belief, or is intended to cause
another to believe” language. Because of this language, the pandering provision
fails to convey the contours of its restriction with sufficient clarity to permit law-
abiding persons to conform to its requirements. Because of this language, the
provision is insusceptible of uniform interpretation and application by those
charged with the responsibility of enforcing it. Accordingly, we find it
impermissibly vague.
III. Williams’s Booker Challenge
A. Standard of Review
Where, as here, there is a timely objection, we review a defendant's Booker
claim in order to determine whether the error was harmless.101 There are two
101
United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005).
47
harmless error standards, one of which applies to Booker constitutional errors, the
other to Booker statutory errors.102 Statutory errors are subject to the less
demanding test that is applicable to non-constitutional errors.103 A non-
constitutional Booker error is harmless if, viewing the proceedings in their
entirety, a court determines that the error did not affect the sentence, or had but
very slight effect.104 If one can say with fair assurance that the sentence was not
substantially swayed by the error, the sentence is due to be affirmed even though
there was error.105 Because this is a Booker statutory error case we will apply that
standard.
B. No Reversible Booker Error
Williams was assessed (1) a two-level sentence enhancement for use of a
computer for transmission, receipt or distribution of child pornography (2) a two-
level sentence enhancement for possession of child pornography because the
pornographic material at issue involved minors under age twelve, and (2) a four-
level sentence enhancement because the material involved portrayed sadistic or
102
Id.
103
Id.
104
Id. (citation and internal quotation marks omitted).
105
Id.
48
masochistic conduct or other depictions of violence. Because these enhancements
were applied under a mandatory guidelines scheme, error occurred.106 However,
because Williams admitted to the factual basis for his sentence, which included the
facts underlying these enhancements, there was no Sixth Amendment Booker
error.107
We conclude that, viewing the proceedings in their entirety, the sentence
was not substantially swayed by the statutory error. Williams was sentenced
above the bottom of the 57 to 71 month guideline range for the possession count,
and the district court, exercising its discretion, expressly declined his request for a
lower sentence within that range. The court also stated that, even if not bound by
the guidelines, it had doubts that the sentence would be any lower, and it may have
been higher. While the judge declined to issue an alternative sentence in
anticipation of Blakely’s application to the guidelines given the then-settled state
of that issue in this circuit, he explained his decision thoroughly enough that we
are confident that he would not lower the sentence in this case on remand.
IV. Conclusion
106
See United States v. Shelton, 400 F.3d 1325, 1331 (11th Cir. 2005).
107
Id. at 1329-30.
49
In the wake of Free Speech Coalition, sexually explicit speech regarding
children that is neither obscene nor the product of sexual abuse of a real minor
retains protection of the First Amendment. We believe the Court’s decision in
Free Speech Coalition leaves Congress ample authority to enact legislation that
allows the Government to accomplish its legitimate goal of curbing child abuse
without placing an unacceptably heavy burden on protected speech. Certainly
Congress took many cues from the Court in drafting the legislation at issue in this
case.
Given the unique patterns of deviance inherent in those who sexually covet
children and the rapidly advancing technology behind which they hide, we are not
unmindful of the difficulties of striking a balance between Congress’s interest in
protecting children from harm with constitutional guarantees. However, the
infirmities of the PROTECT Act pandering provision reflect a persistent disregard
of time-honored and constitutionally-mandated principles relating to the
Government’s regulation of free speech and its obligation to provide criminal
defendants due process. Because we find the PROTECT Act pandering provision,
18 U.S.C. § 2252A(a)(3)(B), both substantially overbroad and vague, and
therefore facially unconstitutional, we reverse Williams’s conviction under that
section. However, because we find no reversible Booker error in his sentencing
50
for possession of illegal child pornography, we affirm his sentence of 60-months
imprisonment.
CONVICTION REVERSED AND SENTENCE ON COUNT ONE VACATED;
SENTENCE ON COUNT TWO AFFIRMED.
51