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The Supreme Court's Recent Child Pornography Decision, and the Problem with Narrowly Construing Statutes with First Amendment Implications: Part One in a Two-Part Series


Monday, Jun. 9, 2008

Last month, in United States v. Williams, the Supreme Court decided, 7-2, to uphold a federal statute criminalizing the offering or seeking (or, in the statute’s language, the “pandering” or “solicitation”) of child pornography.

In this column, Part One in a two-part series on the Williams decision, I will take issue with the majority’s and concurrence’s approach here: resolving the constitutional problems with the statute by simply interpreting the statute as if it did not raise them.

I’ll explain the generally valid reasoning behind the Court’s use of this interpretive approach, yet also contend that it is an approach that should rarely, if ever, be used in First Amendment and criminal cases like this one.

Why Construing a Statute Narrowly to Avoid Constitutional Issues Often May Make Sense

To begin, it is well-established that the Supreme Court may – and indeed, according to Court precedent, should whenever possible -- construe a federal statute narrowly, in order to avoid constitutional issues. The theory behind this precept is that, for separation-of-powers reasons, the Court should not reach out to strike down a statute that Congress has passed and the President has signed, unless doing so is absolutely necessary.

Thus, if there are two plausible interpretations of a statute – one constitutional, the other not – the Court may choose the constitutional one. It may do so in order to avoid an unnecessary clash with Congress and the President, and, relatedly, in order to honor the assumption that Congresspersons and the President intend to honor, not betray, the oath they take to uphold the Constitution.

Choosing what it believed to be the constitutional interpretation of a statute is precisely what the Court majority did in Williams. Having already struck down a prior, related law in Ashcroft v. Free Speech Coalition, the Court now decided to narrowly interpret the current law, rather than striking this one down, too – perhaps feeling that it was time for its back-and-forth with Congress on the child pornography issue to come to an end.

Such a decision has the advantage of showing that the Court is trying to work with a coordinate branch of government, rather than clash with it. But it also has the disadvantage, in First Amendment cases like this one, of allowing Congress to be sloppy where free speech is concerned, and leave the Court to clean up the mess it has made.

In this Case, the Court Essentially Drafted the Statute’s State-of-Mind Requirement -- a Job Congress Should Have Done

In this case, the sloppiness had to do with the statute’s state-of-mind requirement. The statute stated that a perpetrator had to act “knowingly,” but was unclear as to exactly what the person offering or seeking the images at issue had to know, in order for his or her conduct to be criminal. Indeed, the statute was so unclear that both the majority and the concurrence felt the need to offer substantial clarification regarding the statute’s state-of-mind requirement.

First, writing for the majority, Justice Scalia construed the statute to mean that “[a] crime is committed only when the speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children.” (Emphasis added).

Justice Scalia’s interpretation, by looking to beliefs and not reality, renders it beside the point whether real children really are depicted in the images at issue – or whether the images are computer-generated (making the pornography “virtual”).

Moreover, Justice Scalia’s interpretation – by using the word “or” -- ensures that the statute sweeps in even those who knowingly purvey virtual child pornography as real -- just as, ironically, law enforcement personnel might do to capture child-pornography seekers.

Thus, while this interpretation clarified the statute by making its prohibition more specific, it hardly narrowed it or placed it upon more solid constitutional ground. No wonder, then, that Justice Scalia’s aggressive interpretation of the statute triggered a dissent from Justices Souter and Ginsburg (which I will discuss in detail in Part Two of this series of columns).

In particular, the dissent took strong issue with the possibility that – under Justice Scalia’s interpretation of the statute -- a person can be prosecuted even if he is, in fact, offering material that is virtual, not real, child pornography.

Second, in concurrence, Justices John Paul Stevens and Stephen Breyer made clear that they would narrow Congress’s statute even further – though not on the virtual child pornography point. Concerns had been raised that, for instance, hapless grandparents offering baby photos because they were cute, but using unfortunate language such as “hubba hubba” to describe the photos, would be caught in the statute’s snare. In response, Stevens wrote that “[i]t is abundantly clear from the provision's legislative history that Congress' aim was to target materials advertised, promoted, presented, distributed, or solicited with a lascivious purpose--that is, with the intention of inciting sexual arousal.”

In other words, Stevens and Breyer effectively read into the statute a “lascivious purpose” requirement that was previously absent. Unlike Scalia’s choice of “or” rather than “and,” this was a reasonable, narrower, and clearly correct interpretation of the statute – one that was grounded in legislative history, and one with which the dissenters did not quarrel. Still, the number of glosses the Court had to make here raises the question of whether Congress should have done some of this drafting work itself, before the statute became law.

Why the Court’s Narrowly Construing the Statute at Issue Here Is Troubling

By punting on the state-of-mind requirement with respect to the important “and”/”or” question, and punting on the question whether the pornography as issue needed to involve actual children, Congress was able to pass a vague statute and allow the Court to fill in the blanks necessary to make that statute constitutional. But the conservative Roberts Court also did more: It ensured that – courtesy of Justice Scalia – the statute would be construed to be as prosecutorially-aggressive and anti-free-speech as possible, without crossing what the Court’s conservative majority saw as being the constitutional lines.

Suddenly, then, it seems that a doctrine requiring the Court to defer to Congress whenever it can, is being used to allow Congress to defer to the Court whenever it is convenient. Moreover, a doctrine that was meant to allow the Court to shrink statutes to fit them within constitutional bounds, is now being used to bloat the statutes until they reach constitutionally-suspect applications.

What might Congress have done had the Court not provided such copious drafting assistance here, but rather truly construed the statute narrowly – by using the “and” and not the “or”, and by eliminating the statute’s application to fraudsters who try to pawn off virtual child pornography as real?

Granted, Congress might well still have tried to reach the pandering and solicitation of virtual child pornography. However, by doing so overtly, in so many words, it might have raised a plainer and clearer First Amendment question – one the Court could not marginalize or evade. The conflict with the Court’s earlier ruling that virtual child pornography is First Amendment-protected speech would also have been crystal-clear on the face of the statute.

And granted, Congress might still have gone after those who pass off virtual child pornography as real. However, it might (and, in my view, it should) also have done so with milder penalties than those reserved for persons who knowingly pass along genuine child pornography, and on a different and clarified theory.

After all, knowingly passing off virtual child pornography as real is a very strange crime. It is fraud, but the victim of the fraud, who is seeking real child pornography, is completely unsympathetic and, indeed, far worse than the fraudster. Moreover, the fraudster is arguably supplanting a transaction that really would have involved images of actual children, and diminishing the market for the completely reprehensible and profoundly harmful creation of actual child pornography.

Special Considerations Here Make the Court’s Interpretation Especially Problematic

Granted, the legislating-from-the-bench point could be made with respect to any narrowing construction of any statute, but I believe it is especially trenchant here – for several reasons.

First, this is a criminal case, where prior notice of what a statute means is especially important -- as the Constitution reflects when it forbids crimes to be created retrospectively.

Second, this is a free speech case where, again, notice is key – as Supreme Court cases reflect when they take into account that laws can chill speech in the interim before their constitutionality is clarified. When a law affects speech and reads like the dog’s dinner, there’s an argument for the Court’s punishing Congress by invalidating the law, not helping it cook a more palatable dish.

Third, whereas narrowing constructions tend to diminish a statute’s scope in order to make it solidly constitutional, this interpretation of the state instead was the most aggressive the Court could have chosen.

Fourth, and finally, monkeying with state-of-mind requirements as the Court did -- so that as many states of mind as possible qualify for punishment -- comes perilously close to crafting the kind of “thought crimes” the First Amendment abhors, as increasingly less blameworthy states of mind (such as that of the fraudster, as compared to the true child porn purveyor) are seen as meriting the same harsh penalty.

In Part Two of this series, I will discuss the key question that divided the majority and the dissent in this case: Given that the Court has already held that virtual child pornography – that is, pornography containing computer-generated images, and not images of real children – is protected by the First Amendment, can it constitutionally be a crime to offer child pornography that is touted as real, but is actually virtual (including when the seller knows the truth)?

Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes free MP3 and text downloads of the novel's first chapter.

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