Skip to main content
Find a Lawyer

The Supreme Court's Recent Child Pornography Decision: Why Justices Souter and Ginsburg Dissented: Part Two in a Two-Part Series of Columns


Monday, Jun. 23, 2008

Recently, in United States v. Williams, the Supreme Court upheld a federal statute prohibiting the offering or seeking of child pornography. There is no question that Congress can make such behavior illegal, and punish it harshly. However, the statute in question was constitutionally problematic in several ways. The Court nonetheless upheld it, 7-2, rather than invalidating it and forcing Congress to draft and pass a more clearly constitutional version of the law. Yet that is something Congress surely could have done: What legislator wants to be on the record as voting against an anti-child-pornography law?

One problem with the statute was that its state-of-mind requirement was ill-defined – as I discussed in Part One of this series of columns. Another problem – the one I will focus upon here – is that the statute was interpreted by the Court to sweep in the act of knowingly or unknowingly passing off virtual child pornography (which involves no real children) as real. In other words, according to the Court, the fact that the pornography at issue contained no images of real children is no defense.

In this column, I’ll argue that the root of the problem here is Congress’ attempting to address two very different problems with the same statute and potential penalties. I’ll also explain why this ruling triggered a dissent by Justices David Souter and Ruth Bader Ginsburg.

A Crime with Elusive Harm – Or At Least Harm that Is Different From the Harm of the Crime at the Heart of the Statute

In my view, Congress erred by addressing two distinct problems in the same statute: the offering of real child pornography, and the passing off of virtual child pornography (knowingly or not) as real.

The harm of offering real child pornography is devastating. It presupposes and is parasitical upon the crime of sexually abusing a child. Moreover, its dissemination re-victimizes the children involved – who could consent to neither the acts, nor the creation of images of them, nor the dissemination of the images. The penalties, therefore, are rightly severe, for they can take all these harms into account.

In contrast, the harm of knowingly passing off virtual child pornography as real is elusive, and possibly nonexistent. Ironically, this act may actually have a positive effect: Infusing virtual child pornography into the market may mean that real child pornography is crowded out. After all, the making of virtual child pornography is constitutionally-protected, according to the Supreme Court, and the making of real child pornography is a very serious crime. Only the sickest seller would thus opt to distribute real child pornography.

Moreover, the person who knowingly defrauds another into accepting virtual child pornography may have prevented him from buying the real thing from someone else. In that sense, this may be an oddly beneficial kind of fraud – very different from, say, defrauding someone into accepting a used car as new.

So, why would Congress criminalize this kind of knowing fraud? The reason may be sheer distaste for the content of the material. But Congress cannot base its regulation upon distaste when the material is, as here, protected by the First Amendment. Moreover, if our system is to be fair, blind distaste that should not substitute for a reasoned examination of the effects of the fraud.

Another reason may be a theory of criminal propensity– the idea that next time, the fraudster may offer real wares, and that users of child pornography who believe it is real (even if it is not) are still more likely to abuse children. But we generally do not base our system on propensity – especially the latter kind of propensity, where speech is assumed to lead to action. Thus it is worth looking more closely, and empirically, at whether these theories -- that fraudsters will become pornographers or porn-sellers, and that virtual pornography feeds child abuse, rather than substituting for it – are true.

All these points indicate, I believe, that Congress would have been better served not to lump together pornography-hawkers and knowing fraudsters in the same statute. But what about unknowing fraudsters – those who pass off virtual child pornography as real? That is, what about situations where both seller and customer believe the pornography at issue is real, but in fact, it is not? This factual scenario is what led to Justices Souter and Ginsburg’s dissent.

Justice Scalia’s Argument versus Justice Souter’s Argument

Justice Scalia’s argument, in writing for the majority, went as follows:

To begin, it’s clear the government can constitutionally criminalize unknowingly selling baker powder as cocaine, even though baking powder is innocuous, because the seller was attempting to illegally sell cocaine. So, unknowing frauds can plainly be criminalized.

Now, unlike baking powder, virtual child pornography is First-Amendment-protected. But the government can also criminalize passing First-Amendment-protected national security documents to the press with the wrongful belief that they are classified, when in fact they have been declassified and are fully accessible to the public. This is true because the person passing the documents to the press attempted to illegally pass classified documents. So, unknowing frauds involving First-Amendment-protected materials can also plainly be criminalized.

Souter’s response, in essence, is this: Applying the attempt doctrine to national security documents will not tend to wipe out a First-Amendment-protected type of material, but applying the attempt doctrine to virtual child pornography will do just that. The Court’s opinion makes clear that for offering or seeking child pornography to be a crime, no money need change hands, and few will create what cannot be exchanged without risking criminal penalties. (Granted, offering virtual child pornography with an extremely clear description that that is exactly what it is, remains legal – but if an email or chat room comment is unclear, the way is opened for prosecution.)

Souter notes that virtual child pornography is very unpopular, but notes, too, that the Court’s and the First Amendment’s function has always been to protect unpopular speech as long as it falls within the First Amendment’s protections. The Court had held virtual child pornography to be First-Amendment-protected in its prior case holding virtual child pornography to be protected; now, Congress was creating an end-run around the Court’s holding, and worse, the Court was acquiescing.

Ultimately, Souter was troubled by this dynamic, as was Justice Ginsburg, who joined his dissent – and rightly so. The next free speech decision by the Court that Congress undermines may well involve political speech that is just as unpopular, but just as constitutionally-protected as (indeed, even more so than) the materials at issue here.

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.

Was this helpful?

Copied to clipboard