Amicus Curiae Brief — United States v. Williams
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Michael Williams,
Respondent.
a
On Writs of Certiorari to the
United States Court of Appeals for the Eleventh Circuit
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BRIEF OF THE STATES OF ALABAMA, ARIZONA,
ARKANSAS, COLORADO, DELAWARE, FLORIDA,
HAWAII, ILLINOIS, INDIANA, KANSAS, MAINE,
MARYLAND, MICHIGAN, MINNESOTA,
NEBRASKA, NEW HAMPSHIRE, NEW MEXICO,
NORTH CAROLINA, NORTH DAKOTA,
OKLAHOMA, PENNSYLVANIA, SOUTH CAROLINA,
TEXAS, UTAH, VERMONT, VIRGINIA,
WASHINGTON, AND WEST VIRGINIA AS AMICI
CURIAE IN SUPPORT OF PET_TIONER
¢
Troy King James W. Davis
Attorney General Assistant Attorney General
Kevin C. Newsom
Solicitor General STATE OF ALABAMA
Counsel of Record Office of the Attorney General
11 South Union Street
Montgo~ery, Alabama 36130
June 11, 2007 (334) 242-7401
(Additional counsel for amici curiae are listed inside the front cover.)
ey ee
FILED
No. 06-694 OFFICE OF THE CLERK
In the ws
Supreme Court of the Anited States
¢
United States of America,
Petitioner,
ADDITIONAL COUNSEL
TERRY GODDARD
ATTORNEY GENERAL
STATE OF ARIZONA
1275 W. Washington St.
Phoenix, AZ 85007
DUSTIN MCDANIEL
ATTORNEY GENERAL
STATE OF ARKANSAS
323 Center Street
Little Rock, AR 72201
JOHN W. SUTHERS
ATTORNEY GENERAL
STATE OF COLORADO
1525 Sherman Street
Seventh Floor
Denver, CO 80203
JOSEPH R. BIDEN, III
ATTORNEY GENERAL
STATE OF DELAWARE
Carvel State Office Bldg.
820 N. French Street
Wilmington, DE 19801
BiLL MCCOLLUM
ATTORNEY GENERAL
STATE OF FLORIDA
The Capitol PL-01
Tallahassee, FL 32399-
1050
MARK J. BENNETT
ATTORNEY GENERAL
STATE OF HAWAII!
425 Queen Street
Honolulu, HI 96813
LisA MADIGAN
ATTORNEY GENERAL
STATE OF ILLINOIS
100 W. Randolph Street
Chicago, IL 60601
STEVE CARTER
ATTORNEY GENERAL
STATE OF INDIANA
302 W. Washington St.
IGCS — Sth Floor
Indianapolis, IN 46204
PAUL J. MORRISON
ATTORNEY GENERAL
STATE OF KANSAS
Memorial Hall, 2nd Floor
120 SW 10th Street
Topeka, KS 66612
G. STEVEN ROWE
ATTORNEY GENERAL
STATE OF MAINE
6 State House Station
Augusta, ME 04333
DOUGLAS F. GANSLER
ATTORNEY GENERAL
STATE OF MARYLAND
200 Saint Paul Place
Baltimore, MD 21201
MICHAEL A. Cox
ATTORNEY GENERAL
STATE OF MICHIGAN
P.O. Box 30212
Lansing, MI 48909
LORI SWANSON
ATTORNEY GENERAL
STATE OF MINNESOTA
102 State Capitol
75 Rev. Dr. Martin Luther
King, Jr. Blvd.
St. Paul, MN 55155-1609
JON BRUNING
ATTORNEY GENERAL
STATE OF NEBRASKA
P.O. Box 98920
Lincoln, NE 68509
KELLY A. AYOTTE
ATTORNEY GENERAL
STATE OF NEW
HAMPSHIRE
33 Capitol Street
Concord, NH 03301
GARY KING
ATTORNEY GENERAL
STATE OF NEW MEXICO
P.O. Drawer 1508
Santa Fe, NM 87504-1508
Roy COOPER
ATTORNEY GENERAL
STATE OF NORTH
CAROLINA
N.C. Dep’t of Justice
114 West Edenton Street
Raleigh, NC 27603
WAYNE STENEHJEM
ATTORNEY GENERAL
STATE OF NORTH DAKOTA
600 E. Boulevard Avenue
Bismark, ND 58505-0040
W.A. DREW EDMONDSON
ATTORNEY GENERAL
STATE OF OKLAHOMA
313 N.E. 21st Street
Oklahoma City, OK
73105-4894
/
THOMAS W. CORBETT, JR.
ATTORNEY GENERAL
COMMONWEALTH OF
PENNSYLVANIA
16th Floor, Strawberry Sq.
Harrisburg, PA 17120
HENRY D. MCMASTER
ATTORNEY GENERAL
STATE OF SOUTH
CAROLINA
P. O. Box 11549
Columbia, SC 29211
GREG ABBOTT
ATTORNEY GENERAL
STATE OF TEXAS
P.O. Box 12548
Austin, TX 78711-2548
MARK L. SHURTLEFF
ATTORNEY GENERAL
STATE OF UTAH
Utah State Capital
Complex
East Office Bldg., Ste. 320
Salt Lake City, UT 84114-
2320
WILLIAM SORRELL
ATTORNEY GENERAL
STATE OF VERMONT
109 State Street
Montpelier, VT 05609
ROBERT F. MCDONNELL
ATTORNEY GENERAL
COMMONWEALTH OF
VIRGINIA
900 East Main Street
Richmond, VA 23219
ROBERT M. MCKENNA
ATTORNEY GENERAL
STATE OF WASHINGTON
1125 Washington Street
P.O. Box 40100
Olympia, WA 98504-0100
DARRELL V. MCGRAW, JR.
ATTORNEY GENERAL
STATE OF WEST VIRGINIA
State Capitol, Room 26-E
Charleston, WV 25305
i
QUESTION PRESENTED
Whether 18 U.S.C. § 2252A(a)(3)(B) is overbroad and
impermissibly vague, and thus facially unconstitutional,
when the statute prescribes punishment for one who
“knowingly advertises, promotes, presents, distributes, or
solicits ... any material or purported material in a manner
that reflects the belief, or that is intended to cause another to
believe, that the material or purported material is or contains”
illegal child pornography.
ii
TABLE OF CONTENTS
Fi th, |__- nE EENe ETT i
FARES Ce Diy FRE oi a sccsccsccccsesecosescenesescsososogoosanientont iv
ECE CO Pe vicescicsciminsssecccesessenrecestnnsonnamnsnnataniiatiiat l
SUMMARY OF ARGUMENT. ..2....c:ccscsccrccsssessesessovsesscsesseses 2
PTTOIGE sisiniipstajecerintinvictaninneneiniistiaitanaiinnina 3
I. THE PROTECT ACT’S PANDERING
PROVISION IS NECESSARY TO ABOLISH
THE NETWORK FOR _ CHILD
POU sa isiceciisiscsssiieicsinssauspiciiasiaianinaiien 4
A. The Congressional Findings Amply
Demonstrate the Necessity of the Protect
Act’s Pandering Provision................sssscessessssseeseres 4
B. State Obscenity Statutes Targeting
Distribution of Child Pornography
Demonstrate the Need for the PROTECT
Act’s Pandering Provision...............::ssscsssssssseesensenees 6
I]. THE PROTECT ACT IS NOT UNCONSTITU-
TIONALLY OVERBROAD,. .....cc-ccssssorscescrseoseqeoscssoosees 10
A. The Government May Covnstitutionally
Criminalize An Offer to Transact in
ey ee crtccictnnccnrecinrtictpataiinmtiiaiiusitetin 10
1. An Offer to Transact In Real Child
Pornography Expands the Market
Regardless of What Material the Panderer
a 10
2. A Market-Deterrence Rationale Is
Sufficient To Support the PROTECT Act.......... 12
3. Solicitation Statutes Show that Congress
May Constitutionally Target the
EEE 15
B. The PROTECT Act Does Not Criminalize
BT scteisiacnbaliteeatescegnsinnintatemensnenraceseces 16
C. The PROTECT Act Does Not Ban A
Substantial Amount of Protected Speech. ................ 17
Ill. THE PROTECT ACT’S' PANDERING
PROVISION Is NOT
UNCONSTITUTIONALLY VAGUE. .............cc:cceceee0es 21
ra esitensitbasiionens 23
iv
TABLE OF AUTHORITIES
Cases
Ashcroft v. Free Speech Coalition, 535 U.S. 234
SEI vceinnicorentincnnifeasnntinialtncinpininioongnnanemenemmnintnatsnniel passim
Board of Trustees of the State University of New York
V. Fax, 492 U.S. 469 (1989) .........cccccescecsscscssessesrsessesoees 1]
Boos v. Barry, 485 U.S. 312 (1988) ..........ccecccsseseceeseessenees 22
Brandenburg v. Ohio, 395 U.S. 444 (1969) ..........c.ccc000 16, 17
Broadrick v. Oklahoma, 413 U.S. 601 (1973).............++. 17, 18
Kolender v. Lawson, 461 U.S. 352 (1983) ..........ccccseeseeeeeeees 21
Members of the City Council v. Taxpayers for
ED 17
New York v. Ferber, 458 U.S. 747 (1982)...........0000+ 4, 12,21
Osborne v. Ohio, 495 U.S. 103 (1990)..........cccceceeees 4, 12,17
Pittsburgh Press Co. v. Pittsburgh Comm'n on
Human Relations, 413 U.S. 376 (1973) .........cececeeeeeees 1]
United States v. Farner, 251 F.3d 510 (5" Cir. 2001).......... 16
United States. v. Knellinger, 471 F. Supp. 2d 640
Eee ere rene ee Te 5
United States v. Meek, 366 F.3d 705 (9" Cir. 2004)............ 15
United States v. Miller, ___ F. Supp. 2d __, 2007
WL 188277 (N.D. Ohio Jan. 22, 2007) .............c.ecsceeseeeees 5
United States v. O'Rourke, 470 F. Supp. 2d 1049
NTT incininrnastcinnitastaneneieninaneniieiecictaminntiinieipaiids 5
United States v. Rodriguez-Pacheco, 475 F.3d 434
gg | PSEA PRT EA Se ESSA: 6
Vv
United States v. Root, 296 F.3d 1222 (11" Cir. 2002),
cert. denied, Root v. U.S., 537 U.S. 1176 (2003)........... 16
United States v. Sims, 428 F.3d 945 (10™ Cir. 2005)........... 15
United States v. Steiger, __ F. Supp. 2d __, 2006
WL 3450140 (M.D.Ala. Nov. 29, 2006) ...........ccecceseeeneee 5
United States v. Williams, 444 F.3d 1286 (11" Cir.
REESE Eee ven ee aan ieee eee ce ee Te passim
United States v. X-Citement Video, Inc., 513 U.S. 64
Sa Titties teaneciphicmntepnptbingecieneinianinertinnncnibiisiatapaeibiiiites 22, 23
Virginia State Bd. Of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 425 U.S. 748 (1976)...........+++. 11
Statutes
Re se i UE eshiaeniibasnciccnh eiieiteepaceninnacninnninniateiiuinebsiivensii 15
CR eee passim
17-A Me. Rev. Stat. Ann. § 259(1-A)(A)(3) .........ccceeeeeeseees 15
eee 15
pn E 15
ee 15
Ark. Code Ann. § 5-27-603(a)(1).........cc.cccsssssseseeeesesensensenees 15
ee 15
Ga. Code. Ann. § 16-12-100.2(d)(1) ..........cccccsesseeeeeeeeeeeeeees 15
I irl emeseiemnenaneemnnemntiinaneientite 8
ae 15
ET sciniintcrnesnencecicinecenescarnmenccibenennsenmenianin 8
ic linstitnniceterienindiidiiianeemnniintenindeiiiataneiti 9
Fk en 15
vi
Mont. Code Ann. § 45-5-625 (1)(C) ........sccscsssesesseeseesrerneess 15
I rts tensesseniarioccmmiomanemenectioniasniaiits 15
a i nerriccierrinciiipninadnseciemsenieinatiiusiiitadel 15
O.C.G.A. § 16-12-100.2(O)(2)(A) .........ccssesscescereerserereerseneseees 8
Olio Rev. Code § 2907 GCN Z) q...00.ncecccosorerscrsesceorecvensserers 15
PRE, Glam, Caper © BBB+ 1 DEI... cceccccccccscvccensessseccewsvorsesseete 9
R.I. Gen. Laws § 11-9-1.3(d)(1 (iii)... eeseeeeeeeeeeeeeeseeeeees 9
eri en Sr Fh ichcctcnrictirsncnecsicensnenedennctesisiiios 15
BL. Cote Amt. © 16-1S-DEAIA)..nccccccececssesecscscvsseeesescevecsesens 15
S.D. Codified Laws § 22-24A-S(A)(2) .......cccccscesecsseneeneeeeees 15
Tenn. Code Ann. § 39-13-528 (8) ............s.ssssccseeseseseeeeeeees 15
Oe ccaiinsnintnictansccitcocncnseconninanmenstiananl 9
Fe Ee iiiaticnintistictesiieeninnentisasincemcennnistatenininisits 9
V.T.C.A. Penal Code § 33.021 (a)(1)(B) ..........:.ssccsseesereeeeees 15
a a dicetiticnictantrictnccestnnnciecqnagnenecnpensiail 15
Wyo. Stat. Ann. § 6-4-303(a)(ii)(B)............-cccseceeseeeeseereeeeeees 9
Other Authorities
Prosecutors in State Courts, 2001, p. 5 (http://www.
ojp.usdoj.gov/bjs/pub/pdf/psc0 1 .pdf)..............:ccceeceeereees 6
Prosecutors in State Courts, 2005, p. 5 (http://www.
ojp.usdoj.gov/bjs/pub/pdf/psc05.pdf)............c.ccccceceeeeeeees 6
Pub. L. No. 108-21, 117 Stat. 676 § 501(5), (11)............. 5, 14
S. Rep. No. 2, 108” Cong., 1 Sess. 12 (2003) ......e.cessecsseeenes 4
’ /
1
INTEREST OF AMICI
Child pornography was once traded by mail or by hand.
Risk of detection and the resulting public humiliation was a
built-in deterrent to a person tempted to participate in its
distribution. And perhaps more importantly, there was never
any question, and no difficulty of proving, that real flesh-
and-blood children were involved in its creation.
But times have changed. Today computers provide
pornographers and pedophiles with a cloak of anonymity.
When pormographers gained the ability to trade images
electronically and in secret, opportunities for “pandering”
skyrocketed, and so (not surprisingly) did the incidents of
trading in illegal child pornography. At the same time,
pandering became a cyberspace crime without borders rather
than a trade in physical goods at a physical location.
State and federal prosecutors struggle to keep up. The
criminals can now digitally alter images of real children by
making those images appear to be computer-generated. The
pornographers claim that the images they transmit are not
real child pornography, thus forcing prosecutors to prove
otherwise and making it increasingly difficult to close the
network for illegal child pornography. State and federal
prosecutors need robust laws that account for the
technological revolution and that will allow the government
to protect children in the digital age. The Eleventh Circuit’s
decision in this case stripped away a vital prosecutorial tool —
namely, the ability to target directly an intentional offer to
trade in illegal material, irrespective of whether the
prosecutor is able to locate the image or specifically to prove
that it has been digitally altered to disguise a real child.
The States have a strong interest here because many of
them have laws on the books — laws that protect children —
that may be endangered by the Eleventh Circuit’s decision.
Moreover, the States recognize that child pornography is a
uniquely pervasive, hidden, and borderless crime, and that
2
prosecutorial cooperation between state and federal agents is
essential. The States therefore have an interest in seeing the
United States possess the full panoply of anti-child
pornography powers, lest State prosecutors become
overwhelmed with too many criminals and too few tools to
battle a national (and international) trade.
SUMMARY OF ARGUMENT
I. This Court has recognized that the government has a
compelling interest in closing the network for illegal child
pornography, arid that is precisely what the PROTECT Act’s
pandering provision is designed to do. Current technology
allows pornographers to take images made with real flesh-
and-blood children and disguise them so that they appear to
be computer-generated. In almost every prosecution, the
criminals claim that they were trading virtual pornography
and not the real thing. This stock “virtual defense” makes the
prosecution of child pornography cases increasingly difficult
and expensive. The statute at issue here serves an important
need by directly targeting an offer to transact in unprotected
material. It is critical in the digital age that pandering
prosecutions do not remain dependent on the nature of the
material, at least where, as here, there is a provable intent to
expand the network for child pornography.
The congressional findings clearly demonstrate the link
between the PROTECT Act’s aims and the government’s
compelling interest in closing the network for child
pornography. Congress’ efforts are further supported by
several state statutes that address distribution of child
pornography in a similar manner. The Eleventh Circuit’s
analysis calls some of these statutes into question,
- demonstrating that much more is at stake here than a single
law.
Il. The PROTECT Act’s pandering provision is not
overbroad. Because there is nothing unconstitutional about
criminalizing an offer to transact in child pornography, the
3
statute is not overbroad to the extent that it focuses on the
intent of the panderer and not the actual content of the
material. In fact, the statute does not prohibit or chill any
protected speech, because it does not prohibit advocacy
speech, straight-forward offers to exchange virtual
pornography, or benign distribution of family photos. By its
terms, the statute applies only where the defendant
intentionally offers to transact in pornography made with real
children.
Ill. Nor is the statute unconstitutionally vague. The
Eleventh Circuit simply misread the statute and failed to give
the key term “knowingly” its proper meaning. Correctly
interpreted, the statute provides fair notice of what conduct is
proscribed and properly restricts prosecutors’ discretion.
ARGUMENT
The underlying facts of Williams’ lurid crime are set
forth in the Eleventh Circuit’s opinion, United States v.
Williams, 444 F.3d 1286 (11" Cir. 2006). Suffice it to say
that Williams distributed real pictures of real children
engaged in real sexually explicit conduct, and was charged
with one count of “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), a provision of
the PROTECT Act. /d. at 1289. Williams posted the illegal
child pornography after an exchange with an undercover law
enforcement officer in an internet chat room. Williams
boasted, “HERE ROOM; I CAN PUT UPLINK CUZ IM
FOR REAL ~ SHE CANT.” Jd. at 1288-89.
Williams entered into a plea agreement that reserved his
right to challenge the constitutionality of the pandering
provision. The Eleventh Circuit reversed Williams’
conviction under the pandering provision on First
Amendment grounds, holding that the provision was
unconstitutionally overbroad and vague. The Eleventh
4
Circuit was wrong on both counts. It misapplied this Court’s
overbreadth analysis, misread the statute’s express intent
requirement, and in the process called into question many
sound and important state laws.
I. THE PROTECT ACT’S PANDERING PROVISION
IS NECESSARY TO ABOLISH THE NETWORK
FOR CHILD PORNOGRAPHY.
The PROTECT Act’s pandering provision is a critical
prosecutorial tool, and an analysis of its usefulness will lend
much-needed context to the overbreadth and vagueness
issues in this case. The statute is necessary because of what
the criminals can do with technology and because of the
difficulty (perhaps soon to be impossibility) of proving that
an image is, in fact, of a real child and not computer-
generated. It allows prosecutors directly to target an offer to
transact in illegal child pornography even in cases where the
material cannot be located or has been digitally altered, or
where a person is expanding the network for child
pomography with material that may not otherwise be
obscene. The congressional findings and comparable state
Statutes amply support Congress’ efforts to close the network
for child pornography through the PROTECT Act.
A. The Congressional Findings Amply Demonstrate
the Necessity of the Protect Act’s Pandering
Provision.
Congress passed § 2252A(a)(3)(B) to close the network
of illegal child pornography: “The crux of what this
provision bans is the offer to transact in this unprotected
material, coupled with proof of the offender’s specific
intent.” S. Rep. No. 2, 108” Cong., 1™ Sess. 12 (2003). As
this Court recognized in New York v. Ferber, 458 U.S. 747
(1982), and Osborne v. Ohio, 495 U.S. 103 (1990), the
government has a compelling interest in closing the child-
pornography distribution network. Ferber, 458 U.S. at 759;
Osborne, 495 U.S. at 109. The congressional findings
5
amply support the pandering provision and its vital
connection to the government’s interest.
Congress emphasized that technology currently exists —
and, indeed, is inexpensive and readily available — to take
images of real children and disguise them by making them
appear to be computer-generated. Pub. L. No. 108-21, 117
Stat. 676 § 501(5), (11). Congress also recognized that as
digital files are transferred over the internet again and again,
they degrade “so as to make it difficult for even an expert
conclusively to opine that a particular image depicts a real
child.” § 501(8).
Pornographers know that Congress’ assessment is
correct. They also know well this Court’s decision in
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002),
which holds that the government cannot criminalize the
possession or manufacturing of “virtual” child pornography.
Therefore, defendants arrested for dealing in unprotected
child pornography claim routinely that their images are fake,
thus requiring the government to prove beyond a reasonable
doubt that images are in fact of real flesh-and-blood children.
§ 501(7), (10). The proliferation of this “virtual defense” .
has made prosecution of child pornography crimes more
difficult and expensive. § 501(9), (10).? Prosecutors, for
' The amicus States disagree with this Court’s holding in Free Speech
Coalition. See infra at 13-14.
? Cases recognizing the availability of the “virtual defense” include, e.g.,
United States v. Miller, __ F.Supp.2d __, 2007 WL 188277 (N.D.
Ohio Jan. 22, 2007); United States v. O'Rourke, 470 F.Supp.2d 1049
(D.Ariz. 2007); United States v. Knellinger, 471 F.Supp.2d 640, 647 n.6
(E.D.Va. 2007); and United States v. Steiger, __ F.Supp.2d __, 2006
WL 3450140 (M.D.Ala. Nov. 29, 2006).
> At the same time that prosecutions are becoming more difficult and
expensive in light of the technology available to pornographers, the
internet (and its anonymity) makes it easier for pornographers to
distribute their wares. Because trades occur at computer terminals rather
than in large cities’ red light districts, the child pornography network is
more widespread than ever. In 2001, only 30% of state prosecutor’s
6
example, the prosecution may be required to present expert
testimony that an image depicts a real child. See e.g., United
States v. Rodriguez-Pacheco, 475 F.3d 434, 444 (1* Cir.
2007)
Recognizing that pornographers hide behind such
dangerous claims, Congress drafted the PROTECT Act’s
pandering provision to reach those situations where it is
difficult or impossible to prove that real children were
involved. Even if an image of a real child has been digitally
disguised to appear virtual, a panderer can be prosecuted
where he holds the image out to be real (and illegal) child
pornography.
It is critical that prosecutors be allowed to target offers to
trade in illegal pornography and not just the images
themselves. When pornographers trade images and hold
them out as depicting real children, they expand the network
for child pornography — whether or not the images are real
and whether or not the government can locate the images and
prove that they are real. The PROTECT Act works to
undermine the market and network for illegal child
pornography by reaching distribution of images that are
advertised as the “real thing” in an effort to develop trade
relationships.
B. State Obscenity Statutes Targeting Distribution of
Child Pornography Demonstrate the Need for the
PROTECT Act’s Pandering Provision.
As technology increasingly causes widespread problems
for prosecutors of child pornography cases, many state
offices litigated crimes related to computer transmission of child
pornography. Prosecutors in State Courts, 2001, p. 5 (http://www.ojp.
usdoj.gov/bjs/pub/pdf/psc0 | .pdf) (last visited May 24, 2007). By 2005,
just four years later, that number had risen to two-thirds of state
prosecutor’s offices which had prosecuted such crimes. Prosecutors in
State Courts, 2005, p. 5 (http://www.ojp.usdoj.gov/bjs/pub/pdf/psc05.pdf)
(last visited May 24, 2007).
7
legislatures have addressed the issue in their obscenity
statutes. They have done so in a variety of ways, often by
expanding the definition of child pornography. Several such
statutes are summarized below. The amicus States reference
these statutes to make two points: First, the very existence of
these statutes underscores the legitimacy of Congress’
concerns about the impact of technology on child
pornography prosecutions. States have the same concerns, as
shown by the fact that the issue shows up time and again in
legislation. And second, more is at stake in this case than
just the PROTECT Act. The faulty reasoning of the Eleventh
Circuit casts doubt on a number of very sensible (and
constitutional) state statutes as well.
Some of the state statutes summarized below address
distribution or advertisement of “virtual” pornography,
“morphed” images,’ and digitally altered images. The
CPPA, invalidated in Free Speech Coalition, also addressed
such material (but in a different way and for a different
purpose). Therefore, before discussing the state statutes at
issue, it is important to emphasize that this is nof a virtual
porn case and Free Speech Coalition does not require
affirmance of the Eleventh Circuit’s judgment. In Free
Speech Coalition, this Court held that the government may
not criminalize the possession or production of virtual child
pornography where real children were not involved in its
creation. 535 U.S. at 256-57. The provision of the
PROTECT Act at issue here addresses a very different issue:
the knowing distribution or promotion of images, whether or
not the images are illegal child pornography, where the
distributor intentionally passes the images off as depicting
real children (and where the distributor is_ therefore
expanding the network and market for child pornography).
The statutes have a very different focus, even though both the
* “Morphing” is the alteration of “innocent pictures of real children so
that the children appear to be engaged in sexual activity.” Free Speech
Coalition, 535 U.S. at 242. The anti-morphing provisions in the CPPA
were neither challenged nor addressed in Free Speech Coalition. Id.
CPPA and the PROTECT Act attempt to deal with the
8
prosecutorial difficulties presented by technology.
State legislatures around the country are likewise
attempting to deal with the same difficulties, further
demonstrating that virtual porn, morphing, and digitally
disguising real pornography are very real (and related)
problems and that the PROTECT Act’s pandering provision
is a necessary prosecutorial tool. These statutes target the
network for child pornography in a fashion similar to
Congress’ approach in the PROTECT Act:
Georgia’s child pornography statute defines
“identifiable child” as any person under 16 “[w]ho
was a child at the time the visual depiction was
created, adapted, or modified or whose image as a
child was used in creating, adapting, or modifying the
visual depiction.” O.C.G.A. § 16-12-100.2(b)(2)(A)
(emphasis added).
Hawaii’s statute defines “child pornography” to
include pictures or computer-generated images
“created, adapted, or modified to appear that an
identifiable minor is engaging in sexual conduct.”
H.R.S. § 707-751(2).
In Kentucky, “[a] person is guilty of promoting [the]
sale of obscenity when he knowingly, as a condition
to a sale... of any . . . publication or other
merchandise, requires that the purchaser or consignee
receive any matter reasonably believed by the
purchaser or consignee to be obscene... . .” KRRS §
531.060(1) (emphasis added).
Minnesota’s statute defines “pornographic work” to
include a picture or computer-generated image that
“(ii) has been created, adapted, or modified to appear
that an identifiable minor is engaging in sexual
conduct; or (iii) is advertised, promoted, presented,
described, or distributed in such a manner that
9
conveys the impression that the material is or
contains a visual depiction of a minor engaging in
sexual conduct.” M.S.A. § 617.246(f) (emphasis
added).
¢ Missouri’s statute criminalizes the promotion and
advertisement of “child pornography,” defined to
include pictures and computer-generated images of
sexually explicit conduct where “such visual
depiction is a digital image, computer image, or
computer-generated image that is, or is
indistinguishable from, that of a minor engaging in
sexually explicit conduct.” V.A.M.S. 573.010(2)(b)b.
e Rhode Island’s statute criminalizes the distribution of
“child pornography,” defined to include visual
depictions “created, adapted, or modified to display
an identifiable minor engaging in sexually explicit
conduct,” R.J. Gen. Laws § 11-9-1.3(c)(iii), but
makes it, an affirmative defense that “[t]he defendant
did not advertise, promote, present or distribute the
material in such a manner as to convey the
impression that it is or contains a visual depiction of
a minor engaging in sexually explicit conduct, § 11-9-
1.3(d)(1)(iii) (emphasis added).
e Texas’ statute criminalizes the promotion of obscene
material, including promotion of “an image that to a
reasonable _—s person would be virtually
indistinguishable from the image of a child younger
than 18 years of age.” V.T.C.A. § 43.23(h)(2)
e Wyoming’s statute defines “c.ild pornography” to
include a visual depiction “of explicit sexual conduct
involving a child or an_ individual virtually
indistinguishable from a child.” Wyo. Stat. Ann. § 6-
4-303(a)(ii)(B) (emphasis added).
These statutes show that the practical difficulties that led
to passage of the PROTECT Act are felt, in a big way, on the
10
state level. The PROTECT Act and comparable state statutes
simply must be flexible enough to reach pandering in cases
where material is distributed in an intentional effort to
expand the network for child pornography. If the judgment
of the Eleventh Circuit stands, many sound and important
state statutes may face the same fate as the PROTECT Act.
Il. THE PROTECT ACT IS NOT UNCONSTITU-
TIONALLY OVERBROAD.
A. The Government May Constitutionally
Criminalize An Offer to Transact in Unprotected
Material.
1. An Offer to Transact In Real Child
Pornography Expands the Market Regardless
of What Material the Panderer in Fact
Possesses.
The Eleventh Circuit held that the PROTECT Act’s
pandering provision is overbroad because it criminalizes the
pandering of material that may not be real child pornography:
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.” 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.
Williams, 444 F.3d at 1298. That is, a defendant who uplinks
images with a tagline that says, “This is real child
pornography - have more to trade,” violates the pandering
provision even if the images are not real child pornography.
That does not, however, make the statute “overbroad.” A
Statute is overbroad only to the extent that it criminalizes
1]
protected speech. Here, the statute applies only when the
panderer is intentionally offering to transact in unprotected
materials. The First Amendment does not protect such
conduct.
As an initial matter, the Eleventh Circuit was incorrect to
label this speech as “non-commercial.” As the facts of this
case demonstrate, child pornographers are not in the business
(typically, anyway) of distributing pornography for free.
Exchanges may not always be made for a payment of money
per se, but images are routinely swapped for other images or
to build a relationship that will lead to future exchange.
Bartering is the original commercial activity, and, even
today, bartering is as much commercial activity as a sale for
cash.
Moreover, the “innocent” braggarts, exaggerators, and
liars for whom the Eleventh Circuit’s decision showed such
concern are not really innocent at all. Whether they have a
real ‘seage to distribute or not, only persons who intend to
fostey expand the network of child pornography fall
within we statute. Whether the distributor has pornography
made with real children or “an empty pocket,” Williams, 444
* “Commercial speech” is “speech that proposes a commercial
transaction.” Board of Trustees of the State University of New York v.
Fox, 492 U.S. 469, 482 (1989). Williams, like other panderers, proposed
a commercial transaction, a trade or barter of illegal images. The
transaction does not lose its commercial character simply because one
image is traded for another instead of for cash. As commercial speech
(to the extent the conduct at issue should be classified as “speech”), an
offer to transact in child pornography can be regulated whether or not real
children are depicted in the advertised image. If the image is in fact made
with real material, it is illegal contraband, and advertisement for illegal
items may be prohibited. Eg. Pittsburgh Press Co. v. Pittsburgh
Comm'n on Human Relations, 413 U.S. 376, 388 (1973). If it is not real
child pornography but is advertised as such, the advertisement may be
barred as false or fraudulent speech. E.g. Virginia State Bd. Of
Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748,
772 0.24 (1976).
12
F.3d at 1298, he either (i) believes that he is distributing
illegal child pornography or (ii) is attempting to convince the
recipient that a specific image is illegal child pornography.
In either case, the panderer is intentionally offering to
transact in unprotected material, and the government may
constitutionally ban that conduct in furtherance of the
government’s acknowledged and compelling interest in
closing the network for child pornography. See Ferber, 458
U.S. at 759; Osborne, 495 U.S. at 109.
In this case, Williams posted illegal child pornography in
a public chat room to show that he was “for real” — that he
had real images to exchange. He was demonstrating his
product and was expanding and promoting the network of
child pornography on both the supply and demand sides of
the equation. Had Williams posted images that were not real
pornography, but that were presented in such a manner,
Williams still would have promoted and expanded the
network for illegal child pornography because others in the
chat room still would have identified Williams as a person
who desired to trade in pornography made with real abused
children. Williams’ conduct thus expanded the market
regardless of the nature of the image that he posted.°
2. A Market-Deterrence Rationale Is Sufficient
To Support the PROTECT Act.
It is true that in Free Speech Coalition, this Court held
that a market-deterrence theory alone could not support a ban
on the production or possession of virtual pornography:
* Even if Williams had posted a video of “Our Gang,” Williams, 444 F 3d
at 1298, or if the other participants in the chat room had concluded that
Williams was mistaken or fraudulent about the nature of the images he
had, Williams would have nonetheless identified himself as a user who
desired to trade in illegal pornography. And had Williams been merely
deluded about the nature of the image he posted, he would not have been
prosecuted for his mistaken beliefs, but instead for his conduct of offering
to transact in illegal child pornography.
13
If virtual images were identical to illegal child
pornography, the illegal images would be driven from
the market by the indistinguishable substitutes. Few
pornographers would risk prosecution by abusing real
children if fictional, computerized images would
suffice ....
Even if the Government’s market deterrence theory
were persuasive in some contexts, it would not justify
this statute.
Free Speech Coalition, 535 U.S. at 254. For two reasons,
however, that does not mean that a market-deterrence theory
is insufficient in this case.
First, even if market-deterrence was insufficient to
support the CPPA, it is a better fit with the PROTECT Act.
The pandering provision works to close a loophole created by
technology (and, in candor, by Free Speech Coalition). It
criminalizes conduct that directly and immediately expands
the market for illegal child pornography even in cases where
the distributor is mistaken, fraudulent, or unable to determine
whether a real child was used in creation of the image. Here
Congress did not address the viewing or creation of virtual
porn, as it did in the CPPA Instead, Congress prohibited
intentional conduct — pandering — that directly and
immediately expands the market for pornography made with
real abused children.
Second, and with respect, this Court erred by concluding
that the government’s market-deterrence rationale was
insufficient to support the CPPA. There is no support for this
Court’s assumption in Free Speech Coalition that “[i]f virtual
images were identical to illegal child pornography,”
pornographers would stop photographing real children. /d. at
254. This Court assumed that if pornographers could create
on their computers child pornography that is identical to the
real thing, they would not create real child pornography
because it presents the risk of prosecution. But that argument
14
presumes the rationality of pedophiles who are, by definition,
irrational. In addition, even if child abusers stopped
photographing children, that would not stop the sexual abuse
of children that occurs separate from the production of child
pornography. As Congress found with respect to the
PROTECT Act,
[a] child pornography results from the abuse of real
children by sex offenders; the production of child
pornography is a byproduct of, and not the primary
reason for, the sexual abuse of children. There is no
evidence that the future development of easy and
inexpensive means of computer generating realistic
images of children would stop or even reduce the
sexual abuse of real children or the practice of
visually recording that abuse.
§ 501(12).’
A market in virtual pornography, therefore, is not in any
way, shape, form, or fashion good for children. It makes
prosecution of real child pornography cases more difficult,
increases the market for real child pornography, whets the
appetite of sexual abusers, and may be used to lure children
into abusive situations. While this Court can reverse the
” Similarly, this Court was wrong in Free Speech Coalition when it
rejected the government's argument that virtual pornography may be used
to seduce children:
There are many things innocent in themselves, however, such as
cartoons, video games, and candy, that might be used for
immoral purposes, yet we would not expect those to be
prohibited because they can be misused.
535 U.S. at 251-52. A computer-generated image of children being
sexually abused simply cannot be equated to a lollipop. Cartoons, video
games, and candy are innocent things that can be perverted by evil
people. Virtual images of children having sex, used to Jure children into
abusive situations and to convince them that sexual abuse is “normal,” are
evil per se. Images of children having sex, whether real or virtual, are not
innocent in their creation and have no legitimate purpose.
15
Eleventh Circuit without abandoning its holding in Free
Speech Coalition, the amicus States ask the Court to take this
opportunity to (at the very least) clarify that virtual child
pornography does not lead to less child abuse. Even if the
law cannot ban all virtual pornography, it can ban the
pandering of such material (as in the PROTECT Act), and
the law certainly should not encourage the creation of virtual
pornography.
3. Solicitation Statutes Show that Congress May
Constitutionally Target the Panderer’s Intent.
There simply is no constitutional difficulty in the fact that
a person may be prosecuted for offering to transact in illegal
child pornography even when the material he offers to share
is not, in fact, unprotected material. There is a comparable
offense in many solicitation statutes, such as Illinois’, which
define “solicitation” to include solicitation of one whom the
defendant “reasonably believes” to be a minor. See, e.g., 720
ILCS 5/11-6(a) (“A person . . . commits the offense of
indecent solicitation of a child if the person . . . knowingly
solicits a child or one whom he or she believes to be a child
to perform an act of sexual penetration or sexual conduct...
.”) (emphasis added).* That is, a person may be prosecuted
* States with similar solicitation statutes include Alaska (AS §
11.41.452(a)(2)); Arkansas (A.C.A.. § 5-27-603(a)(1)); Florida (F.S.A. §
847.0135(3)); Georgia (Ga. Code. Ann. § 16-12-100.2(d)(1)); Idaho (1.C.
§ 18-1509A(1)); Maine (17-A M.RS.A. § 259(I-A)(A)(3)); Minnesota
(M.S.A. § 609.352(2)); Montana (Mont. Code Ann. § 45-5-625 (1)(c));
Nebraska (Neb.Rev.St. § 28-320.02(1)); New Hampshire (N.H. Rev. Stat.
§ 649-B:4); Ohio (R.C. § 2907.07(C)(2)); Oklahoma (21 Okl. St. Ann. §
1040.13a(B)); Rhode Island (R.1. Gen. Laws, § 11-37-8.8(a)); South
Carolina (Code 1976 § 16-15-342(A)); South Dakota (SDCL § 22-24A-
5(A)(2)); Tennessee (T.C.A. § 39-13-528 (a)); Texas (V.T.C.A. Penal
Code § 33.021(a(1)(B)); and West Virginia (W. Va. Code § 61-3C-14b).
See also, United States v. Sims, 428 F.3d 945, 960 (10 Cir. 2005)
(holding that “it is not a defense to an offense involving enticement and
exploitation of minors[, in violation of 18 U.S.C. § 2242,] that the
defendant falsely believed a minor to be involved”) (citing United States
v. Meek, 366 F.3d 705, 717 (9" Cir. 2004); United States v. Root, 296
16
for soliciting an actual minor or for soliciting an adult
undercover police officer.
Normally, of course, it is not illegal to ask an adult for
sex. But under these statutes it is illegal to do so if the
defendant believes he is approaching a child (that is, if he
offers to have sex with a child). In precisely the same
manner, it normally is not illegal to distribute a picture that is
not child pornography. However, under the PROTECT Act,
it is illegal to do so if the defendant thereby offers to transact
in illegal child pornography. In prosecutions under the
solicitation statutes, the defendant is not prosecuted for his
mistaken belief that his target is an actual minor. Instead, he
is prosecuted for his offer to engage in illegal conduct, i.e.,
sexual relations with a minor. Likewise, in prosecutions
under the PROTECT Act’s pandering provision, the
defendant is not prosecuted for what he believes about any
pictures, but rather for his intentional offer to transact in
illegal child pornography. Like the solicitation statutes, the
pandering provision is constitutional.
B. The PROTECT Act Does Not Criminalize
Advocacy Speech.
The Eleventh Circuit also held that the PROTECT Act is
unconstitutionally overbroad because “[t}he 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.” Williams,
444 © Sd at 1298, citing Brandenburg v. Ohio, 395 U.S. 444,
447 (1969). However, the PROTECT Act does not in any
way criminalize advocacy speech, and the Eleventh Circuit
misunderstands the statute to the extent it found otherwise.
In Brandenburg, this Court held that advocacy of racial
violence, although repugnant, is protected by the First
F.3d 1222, 1227 (11® Cir. 2002), cert. denied, Root v. U.S., 537 US.
1176 (2003); and United States v. Farner, 251 F.3d 510, 512-13 (5® Cir.
2001)).
17
Amendment so long as it does not immediately incite
violence or other criminal activity. Jd The conduct
proscribed by the PROTECT Act is a far cry from the
advocacy speech at issue in Brandenburg.
Williams could have entered a public chat room and
proclaimed, “I like child pornography,” or “Legalize child
pornography!” Had he done so, he would have had nothing
to fear from the PROTECT Act. As the definite article “the”
in the statute makes clear, the pandering provision applies
only to those who intentionally advertise, promote, present,
distribute, or solicit particular material or purported material.
See 18 U.S.C. § 2252A(a)(3)(b) (“in a manner that reflects
the belief . . . that the material or purported material is or
contains” illegal child pornography). It does not touch one
who encourages, promotes, or advocates the idea of child
pornography or the general subject matter.
The Eleventh Circuit simply misread the statute. The
statute does not proscribe advocacy speech, and therefore
cannot be overbroad on that ground.
C. The PROTECT Act Does Not Ban A Substantial
Amount of Protected Speech.
A statute is not overbroad merely because a court can
imagine a scenario under which a statute bars protected
speech. E.g., Members of the City Council v. Taxpayers for
Vincent, 466 U.S. 789, 800-801 (1984). Instead, “the
overbreadth of a statute must not only be real, but substantial
as well, jucged in relation to the statute’s plainly legitimate
sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).
See also Free Speech Coalition, 535 U.S. at 255 (“The
overbreadth doctrine prohibits the Government from banning
unprotected speech if a substantial amount of protected
speech is prohibited or chilled in the process.”) (emphasis
added); Osborne, 495 U.S. at 112 (accord). we
Had the Eleventh Circuit engaged in a proper overbreadth
analysis, it would have considered the scope of unprotected
18
speech banned by the PROTECT Act and compared it to the
scope of protected speech arguably banned (and would have
then determined that the statute is nof overbroad). The
Eleventh Circuit did not undertake these steps at all, but
instead pointed to a few unrealistic examples of protected
speech that, in fact, the statute clearly does not prohibit.
The pandering provision does not in any way dictate what
a person may “see or read or speak or hear.” Free Speech
Coalition, 535 U.S. at 245. It does not, in and of itself,
prohibit a person from producing or possessing real or
computer-generated child pornography (or, for that matter,
any other material). Instead, it prohibits only conduct -
specifically, offers to distribute or trade in illegal child
pornography or material that purports to be illegal child
pornography. 18 U.S.C. § 2252A(a)(3)(B).’ That conduct,
as stated above, expands the network for child pornography.
Nor does the statute preclude an offer to transact in
virtual pornography where the panderer is clear that the
offered material is not real. Had Williams advertised, “The
attached item is virtual pornography — looks like the real
thing,” he could not be prosecuted under the PROTECT Act,
because no reasonable person would conclude that Williams
was offering to exchange real child pornography, that he
believed the material was made with flesh-and-blood
children, or that he intended anyone else to believe so. No
reasonable person would conclude that Williams was
offering to transact in anything other than virtual items,
which, however harmful they may be, are, under this Court’s
® Because the statute does not preclude “pure speech,” the overbreadth
doctrine has less application here. The doctrine’s “function, a limited one
at the outset, attenuates as the otherwise unprotected behavior that it
forbids the State to sanction moves from ‘pure speech’ toward conduct
and that conduct — even if expressive — falls within the scope of otherwise
valid criminal Jaws that reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally unprotected
conduct.” Broadrick, 413 U.S. at 615.
19
decision in Free Speech Coalition, protected by the First
Amendment.
In the same manner, the PROTECT Act’s pandering
provision has no bearing on works of art, such as the movies
Traffic or American Beauty discussed in Free Speech
Coalition. A theater or video rental establishment that
promotes the movies as the works of art that they are has
nothing to fear. Granted, a person who promotes images
from these movies as purported child pornography, and
thereby expands the network for unprotected speech, may be
prosecuted under the PROTECT Act. The distributor would
not be prosecuted for his belief or the nature of the materials,
however, but rather for his conduct — his intentional offer to
transact in illegal child pornography or purported illegal child
pornography.
Likewise, a proud parent can confidently send baby
pictures to friends and relatives without any concern for the
PROTECT Act’s reach, no matter how unintentionally
ambiguous the description of the pictures. The Eleventh
Circuit posed a hypothetical (as part of its vagueness
analysis) that it obviously considered problematic. When
dissected and applied to the statute as properly read, the
hypothetical poses no First Amendment difficulty.
The hypothetical was this: “Suppose, for example, the
government intercepts an email claiming that the attached
photographs depict ‘little Janie in the bath — hubba, hubba!”
Williams, 444 F.3d at 1306. The Eleventh Circuit further
posited that the attached pictures were not illegal child
pornography, but instead were “innocent baby-in-the-bubbles
snapshots or candid stills of the family Rottweiler in a No. 10
washtub....” Jd. The sender of this email has not violated
any reasonable construction of the statute. The Eleventh
Circuit’s hypothetical is, with respect, rather silly because it
never gets past the first element of the crime: “knowingly.”
Only a person who intends to offer to transact in illegal
materi | violates the statute. No reasonable person could
20
conclude that the sender in the hypothetical has offered to
transact in child pornography.
The Eleventh Circuit suggested another hypothetical. No
need to worry there, either:
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.
Williams, 444 F.3d at 1306-07.
As in all of life, context matters. When a reasonable
person considers the nature of the attachment, the
relationship of the sender to the subject of the photograph,
and the obvious intent of the sender, it is clear in the first two
cases that the distribution is wholly innocent and ‘that the
sender is not at all offering to transact in unprotected
material. It is equally clear that the sender in the third case
has violated the PROTECT Act. The law is quite
accustomed to considering the nuances of a situation in this
manner. If all one knows is that one person shot and killed
another man, the situation is ambiguous, but that does not
mean that a murder/manslaughter statute is overbroad (or
vague). When the layers of fact are peeled back, they may
show that the shooter was a would-be thief, lying in wait for
a helpless victim. Alternatively, the facts may show that the
shooter was a police officer who pulled the trigger in self
defense. One case is murder, one is not, even though facts
overlap. Where intent is an element of a crime, as it is here,
the statute may constitutionally apply to one sender with
intent to transact in illegal child pornography, even though it
21
has no application to a distributor of the same photograph
who clearly has no such intent.
In fact, the provision of the PROTECT Act at issue here
does not prohibit or chill protected speech at all. Even if
there might be isolated situations where protected speech is
arguably proscribed, the statute is not unconstitutionally
overbroad because the amount of protected speech that is
covered is not “substantial” in relation to the statute’s
permissible scope. Any supposed overbreadth can and
should be handled on a case-by-case basis. See Ferber, 458
U.S. at 773-774 (where “impermissible applications” of the
Statute are but “a tiny fraction of the materials within the
statute’s reach . .. whatever overbreadth may exist should be
cured through case-by-case analysis of the fact situations to
which its sanctions, assertedly, may not be applied”). There
is therefore no call to apply the “strong medicine” of the
overbreadth doctrine to this case. See id. at 769.
Ill. THE PROTECT ACT’S PANDERING PROVISION
IS NOT UNCONSTITUTIONALLY VAGUE.
The Eleventh Circuit also held that the PROTECT Act’s
pandering provision is unconstitutionally vague. The court
believed the statute to be “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,” and that the
statute “requires a wholly subjective determination by law
enforcement personnel” of what conduct is prohibited.
Williams, 444 F.3d at 1306. The Eleventh Circuit is wrong
on both counts.
“(T]he void-for-vagueness doctrine requires that a penal
statute define the criminal offense with sufficient definiteness
that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary
and discriminatory enforcement.” Kolender v. Lawson, 461
U.S. 352, 357 (1983). When a statute is vague, federal courts
“have the power to adopt narrowing constructions of federal
22
legislation. Indeed, the federal courts have the duty to avoid
constitutional difficulties by doing so if such a construction is
fairly possible.” Boos v. Barry, 485 U.S. 312, 330-331
(1988) (citations omitted). See also, United States v. X-
Citement Video, Inc., 513 U.S. 64, 78 (1994) (construing the
Protection of Children Against Sexual Exploitation Act to
contain a scienter requirement).
In finding the statute vague, the Eleventh Circuit misread
the statute by ignoring the effect of the word “knowingly.”
The court believed that “the ‘reflects the belief? portion of the
statute has no intent requirement,” and that the statute does
not require “specific intent to traffic in illegal child
pornography.” Williams, 444 F.3d at 1306-07. That simply
is not true.
The pandering provision provides as follows:
(a) Any person who -
(3) 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
(ii) a visual depiction of an actual minor
engaging in sexually explicit conduct;
shall be punished as provided in subsection (b).
18 U.S.C. § 2252A(a)(3)(B) (emphasis added).
23
The term “knowingly” is set apart from the other sections
of the statute so that it applies to each element of the crime.
There is no reasonable construction of the statute under
which “knowingly” would apply to some terms and not
others. Therefore, if a person does not specifically intend to
offer to transact in unprotected child pornography, he does
not violate the statute. Instead of applying the X-Citement
Video rule and construing the statute to require scienter in
order to avoid a constitutional difficulty, the Eleventh Circuit
did the opposite, engaging in interpretive gymnastics to read
the scienter requirement out of the statute and to create
constitutional difficulty.
The statute gives fair notice of what it prohibits: An
intentional distribution or promotion of material in such a
manner that a reasonable person would conclude either (i)
that the sender considers it to be illegal child pornography, or
(ii) that the sender intends for others to so believe. The
sender is offering to traffic in unprotected goods and is
expanding the network for child pornography. A person who
is surprised that such conduct is illegal is not due any
sympathy.
There is no indication that prosecutors are abusing their
discretion in choosing their targets under the PROTECT Act
or comparable state statutes. The amicus States are not
aware of a single person who has been prosecuted for sharing
pictures of his kids with friends and family. Of course they
haven’t, because both prosecutors and defendants know what
the statute does and does not proscribe. It is no more vague
than it is overbroad, and the Eleventh Circuit’s decision to
the contrary should be reversed.
CONCLUSION
For the foregoing reasons, this Court should reverse the
court of appeals’ judgment.
June 11, 2007
24
Respectfully submitted,
Troy King
Attorney General
Kevin C. Newsom
Solicitor General
Counsel of Record
James W. Davis
Assistant Attorney General
STATE OF ALABAMA
Office of the Attorney General
1] South Union Street
Montgomery, AL 36130-0152
(334) 242-7401
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.