United States v. Williams
128 S. Ct. 1830 (2008)
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Rule of Law:
Offers to provide or requests to obtain child pornography are categorically excluded from First Amendment protection. A statute criminalizing such offers is not unconstitutionally overbroad or vague, even if the material offered does not actually exist or the offeror is mistaken about the material's illegal nature.
Facts:
- Michael Williams, using a sexually explicit screen name, entered a public Internet chat room.
- In the chat room, Williams posted a message offering to swap 'good' pictures of his toddler daughter and himself for pictures of another user's toddler.
- The other user was an undercover Secret Service agent.
- Williams later messaged the agent that he possessed photographs of men molesting his 4-year-old daughter.
- After becoming suspicious of the agent, Williams posted a public message in the chat room with a hyperlink.
- The hyperlink led to seven pictures of actual children, aged approximately 5 to 15, engaging in sexually explicit conduct.
- A subsequent search of Williams's home uncovered two hard drives containing at least 22 images of real children engaged in sexually explicit conduct.
Procedural Posture:
- Michael Williams was charged in the U.S. District Court for the Southern District of Florida with pandering and possessing child pornography.
- Williams pleaded guilty to both counts but reserved the right to appeal the constitutionality of the pandering statute.
- The District Court rejected his constitutional challenge and imposed a 60-month prison sentence.
- Williams (as appellant) appealed the pandering conviction to the U.S. Court of Appeals for the Eleventh Circuit.
- The Eleventh Circuit (with the United States as appellee) reversed Williams's pandering conviction, finding the statute unconstitutionally overbroad and vague.
- The United States (as petitioner) successfully petitioned the U.S. Supreme Court for a writ of certiorari.
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Issue:
Does 18 U.S.C. § 2252A(a)(3)(B), which criminalizes advertising, promoting, or soliciting any material in a manner that reflects the belief, or is intended to cause another to believe, that the material is child pornography, violate the First Amendment's free speech guarantee or the Fifth Amendment's Due Process Clause?
Opinions:
Majority - Justice Scalia
No. The statute does not violate the First Amendment or the Fifth Amendment. Offers to engage in illegal transactions, including offers to provide or requests to obtain child pornography, are categorically excluded from First Amendment protection. This principle applies whether the transaction is commercial or non-commercial, and it is not limited to offers involving currently existing contraband. The statute validly criminalizes the inchoate crimes of pandering and solicitation, and the general criminal law principle that factual impossibility is not a defense applies; therefore, it is irrelevant whether the material is actually child pornography, as long as the defendant believed or intended the recipient to believe it was. Furthermore, the statute is not void for vagueness because the required mental states of 'belief' and 'intent' are clear questions of fact that juries routinely determine, providing fair notice of the proscribed conduct and preventing arbitrary enforcement.
Dissenting - Justice Souter
Yes. The statute violates the First Amendment. By criminalizing proposals to transact in material merely believed to be child pornography, the statute effectively nullifies the protections for virtual or 'fake' child pornography established in Ashcroft v. Free Speech Coalition. The law allows the government to prosecute an individual without proving the underlying material is illegal, thereby criminalizing proposals to engage in what may be a constitutionally protected transaction. This approach suppresses a category of protected expression and erodes the critical distinction between illegal child pornography involving real children and protected virtual pornography. The majority’s analogy to criminal attempt is flawed because, unlike classic attempt cases, completing the intended transaction here (transferring fake pornography) might not constitute a crime at all.
Concurring - Justice Stevens
No. The statute is not facially unconstitutional. This conclusion is supported by the duty to construe statutes to avoid unconstitutionality and by the statute's legislative history. Congress repeatedly referred to the law as a 'pandering' provision, which implies an intent to target material offered with a lascivious purpose—that is, to appeal to erotic interests. This understanding, combined with the statute's scienter requirements, ensures that the law does not apply to the distribution of protected material for a lawful, nonlascivious purpose, such as for its serious literary, artistic, political, or scientific value. This narrows the statute's scope and saves it from constitutional infirmity.
Analysis:
This decision significantly strengthens the government's power to combat child pornography by allowing prosecution to focus on the preliminary stages of solicitation and pandering, rather than requiring proof of the nature of the final product. It establishes that the act of offering illegal material is unprotected speech, regardless of factual mistakes or whether the underlying material is actually illegal. The ruling effectively creates a legal buffer around the core crime of possessing or distributing child pornography, potentially chilling the creation and distribution of virtual or simulated pornography that was protected by Ashcroft v. Free Speech Coalition due to the increased risk of prosecution based on how the material is marketed or described.
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