Oral Argument in United States v. Williams:
I attended the oral argument this morning in United States v. Williams, the case Eugene blogged about a bit involving First Amendment challenges to 18 U.S.C. 2252A(a)(3)(B), a child-porn-related statute enacted as part of the 2003 PROTECT Act.

  Overbreadth challenges to federal statutes often hinge on how the Court construes vague terms; the narrower the construction, the less of an overbreadth problem the statute raises. Given that, it wasn't surprising that much of the SG's argument time was spent on figuring out what the statute meant. Clement was willing to concede as much as needed to get the Justices to see the statute as narrow enough to uphold. By the end of his argument, there appeared to be wide support on the bench for reading the statute narrowly and then upholding it as narrowly construed.

  Counsel for Williams had a hard time. He did a bit better than I expected from his brief, but he was not successful at answering the Justices' questions. He responded to questions either with general platitudes or else he would say something noncommittal or irrelevant. Sometimes the exchanges were just odd: For example, when asked if he really thought the conduct prohibited by the statute was protected by the First Amendment, counsel responded that he wouldn't say it was protected by the First Amendment but that a 5-year mandatory minimum sentence was too severe for such conduct. (This was particularly frustrating to Justice Ginsburg, who pointed out that the First Amendment issue was the only one before them.) After a while the Justices just started offering general comments to each other about possible ways they might resolve the case. It was a long 30 minutes.

  Perhaps the most interesting substantive aspect of the argument was the extensive attention the Justices gave to liability for someone who accidentally possesses child pornography. Justices Souter and Breyer (if I recall correctly) wanted to know what happens to someone who gets a bunch of child pornography in the mail that he didn't ask for and then either tells the neighbors about it or calls the cops to report it. Breyer seemed to believe that such a person couldn't be liable because they didn't intend to receive the images; Clement noted that the person would still be in possession, subject to the affirmative defense in 18 U.S.C. 2252(c). But at least some of the Justices seemed to suggest that the affirmative defense in 2252(c) was too narrow, and that the First Amendment wouldn't allow a prosecution in a true case of accidental possession. I don't know of any circuit court precedent that suggests this, but there seemed to be some interest in the position (and if I recall correctly, Clement agreed that such a challenge might be successful on an as-applied basis).

  UPDATE: Lyle Denniston offers a very good summary of the argument here. Lyle gives considerable attention to Justice Kennedy's discussion of limiting overbreadth challenges in cases like Williams'. I would guess that Justice Kennedy is not so much interested in limiting overbreadth as he is concerned with allowing facial challenges as defenses to criminal prosecutions. Facial overbreadth challenges in civil litigation are common and uncontroversial. But a facial challenge in a criminal case may lead to an unfair result if the government chooses to prosecute a defendant under one statute instead of another and the charged statute is later struck down as facially overbroad. In that case, the defendant will be set free even though he could have been prosecuted under the other statute.

  To be clear, I don't think this is a huge problem, as the government can simply bring charges under all the applicable statutes instead of just the one with potential overbreadth. Still, it's a theoretical possibility. I wonder if Justice Kennedy is interested in a new doctrine that would require facial overbreadth challenges to be brought on the civil side, essentially requiring criminal defendants to make only as-applied First Amendment challenges. I guess we'll see when the opinions come out.
alkali (mail):
But at least some of the Justices seemed to suggest that the affirmative defense in 2252(c) was too narrow, and that the First Amendment wouldn't allow a prosecution in a true case of accidental possession.

I tend to agree that prosecution in that case might be unconstitutional, but it seems more like a due process issue than a First Amendment issue.
10.30.2007 2:41pm
The accidental possession possibilities scare me. Browsers can pre-load images from a website linked on a page you are viewing, to save time. A pornographic image can also be thumbnailed as a single pixel that's impossible to notice, but your browser will download the full-sized image and store it in cache.
10.30.2007 2:45pm

FWIW, the person still must know the image is there and under his control; if a person doesn't know it's in the cache or how to control the cache, there's no liability because there is no knowing possession.
10.30.2007 3:10pm
Mary Katherine Day-Petrano (mail):
Orin, hope you will keep us updated as this interesting case moves forward. And it would be great if you could post a link to the oral argument transcript.
10.30.2007 3:17pm

I will read the oral argument soon, but how did the Court seemed to address the "practical joker" hypothetical where someone sends a joking email that says "Child pornography inside!" but it actually does not contain such child pornography. The Court of Appeals felt like this was clearly within the statute's sweep and posed serious constitutional problems.

I felt like you could read the statute a bit more narrowly to say that, so long as you were sending it to a friend or someone you knew, they wouldn't really think it was child pornography. If you were in a pedophile chat room that might be another story. The collateral issue though is whether those hypos constitute "substantial protected speech" that is being proscribed. I am not a first amendment guy but it seems hard to say that it is.

Any idea on the bench's reaction?
10.30.2007 3:48pm
Ms. Day-Petrano, is usually good about posting links to argument transcripts as soon as they are available.
10.30.2007 3:52pm
PatHMV (mail) (www):
What alkali said. In the case of the recipient of the unwelcome, un-sought child pornography, I don't see where the First Amendment would step in. There's no "speech" to protect, precisely because the possession is unintentional. You can't have protected speech without some intended expression. There are due process problems, but unintentional possession of child pornography wouldn't be any different, from a First Amendment perspective, than unintentional possession of stolen goods.
10.30.2007 3:54pm
Ben P (mail):

FWIW, the person still must know the image is there and under his control; if a person doesn't know it's in the cache or how to control the cache, there's no liability because there is no knowing possession.

Let's be realistic here.

If the technological aptitude I've seen is in any way common. (For Example) The prosecution is going to present the case saying "This person had Child Pornography on your computer, how do you get child pornography on your computer if you're not looking at child pornography!?"

Unless you have a particularly technologically adept jury, that's going to make a lot of sense, and testimony from some expert about how it might happen can be dismissed as mumbo jumbo.

Sure, the defendant could win on appeal if the facts are particularly bad, but in that case the damage is already done. Being convicted of possession child pornography isn't exactly good for ones reputation.

*Something about your post filter didn't like my post.*
10.30.2007 3:59pm
Just Dropping By (mail):
But at least some of the Justices seemed to suggest that the affirmative defense in 2252(c) was too narrow, and that the First Amendment wouldn't allow a prosecution in a true case of accidental possession. I don't know of any circuit court precedent that suggests this, but there seemed to be some interest in the position

This was something the Court discussed in dicta in the Ashcroft v. Free Speech Coalition decision. IIRC, the Court noted that it was apprehensive about whether the affirmative defenses provided by the statutes were strong enough, but said that they didn't need to reach the issue because they were striking down the statutes as unconstitutional on their face. I think a substantial part of the court (and not just liberal members, since Kennedy wrote the majority decision in Ashcroft, with Thomas concurring) views the Osborne v. Ohio decision from 1990 (which permitted criminalization of mere possession of child pornography) as having gone too far and are looking for a way to pare it back. Requiring stronger affirmative defenses would let them do that without actually overruling Osborne. (It also bears mention that the changes in the Court's composition since Ashcroft should not automatically alter the outcome since the three dissenters in that case were O'Connor, Rhenquist, and Scalia.)
10.30.2007 4:11pm
Ben P,

It seems that they have such sophisticated juries in Minnesota.
10.30.2007 4:14pm
Daniel San:
The retroactive effect of a facial overbreadth challenge is not alway so easy to avoid. The prosecution can always charge all possible theories. But once the conviction is entered, if the defendant is convicted of all counts, you have to decide how to enter judgment. At least in Illinois, the one act, one crime rule says you can't enter judgment for multiple crimes if there was a single act. (The rule is more complex than that, but the prosecution is often in a position of having to choose its preferred crime.)
10.30.2007 4:41pm
Tony Tutins (mail):
Although here the defendant offered child pornography and provided child pornography, this law would seemingly sweep into its coverage anything that purported to depict underage sex, including a hypothetical website called "," even if all the actors were 18 and 19. Recordings of legal adults portraying Catholic schoolgirls in pigtails would be illegal if the promo material stressed their youth.
10.30.2007 5:00pm
Reading the SCOTUSBlog description of oral arguments makes Prof. Lazarus' comments here this week even more important. As Denniston saw it, counsel for Diaz essentially talked the Court into affirming his client's conviction and upholding the law. Too bad, because this shouldn't be a close question in my view.
10.30.2007 5:03pm
Dave N (mail):
For Mary Katherine Day-Petrano and anyone else interested, the Supreme Court has posted the transcript here.
10.30.2007 5:11pm
Poor Mr. Diaz has been badly beaten up on this blog over the past week; I hardly hold him responsible for the fact that this case serves as a great illustration of the problems with the overbreadth/facial challenges doctrine. Few people really think the portions of the statute Williams violated are unconstitutional; why should he get a windfall if there's a problem in some other part of the statute? How is there really even an Article III case or controversy over the validity of proscribing criminal acts not even charged?
10.30.2007 8:07pm
John McCall (mail):
I read through the oral argument, and Clement seems to alternate between 1) declaring that the statute is obviously constitutional, and the Court just needs to decide what the statute actually means so that the rest of us will finally know how constitutional it is, and 2) arguing that none of these troubling hypothetical scenarios are important, because no-one would read the law that way, or because no-one would ever prosecute someone acting reasonably, or some such. Really, it all seemed very circular to me; perhaps that's the nature of these inquiries.

I agree that respondant's lawyer wasn't very impressive, either — probably less so.

As for the doctrine itself — the trouble is that it's very difficult procedurally to raise "pure" chilled-speech complaints to the SCOTUS level. Suppose the Albatross Protection Act of 2007 really does chill speech to some significant degree. Anna is a well-known activist; she'd be happy to openly contest the APA, but she'll be damned if she ever lets it "chill" her advocacy anyway. Bill puts up some sketchy fliars complaining about all the albatrosses on his lawn; he gets convicted, but it's reversed on appeal, and the government concludes he's actually just a harmless curmudgeon and declines to appeal further. Christy is convicted of firing mortars towards her local estuary, and she's got a long history of similar behavior, so really she's just a poster child for why the APA was drafted in the first place. Don just keeps his mouth shut, and so he's got no legal cause of action.
10.30.2007 9:11pm
I suspect that the overbreadth challenge is not enough here.

The fundamental question asked by Scalia "what is the social value of a lie in this context?" still stands unanswered.

The answer succinctly stated is: the law does not protect fiction, all fiction lies, yet there is social value in fiction.

My example would be a non-pornographic work of fiction with a title like "pornographic adventures of a group of children engaging in sexual acts". The title lies about the content (and so, in a way, the author of this work of fiction). But there might be socially valid (and First-Amendment-protected) reasons to call the book this way even though the title misrepresents the content. Yet this law would make distributing this book under this title a crime.
10.31.2007 12:53am
I can't imagine why a criminal defendant could
be thought to have less of a right to bring a facial challenge to a statute than a civil plaintiff. Standing cannot be questioned for the criminal defendant, and the criminal defendant has a special constitutional right to mount a defense. Governments take risks when they enact and prosecute people based on constitutionally questionable legislation. It is not the business of courts to relieve them of those risks. The state faces the risk of a defendant going free, but the defendant faces the risk of spending years in prison under a statute later found to be unconstitutional. Two centuries ago, our system of justice chose to regard the latter harm as worse than the former. We have to live with the consequences of that choice, which unquestionably has a price. I would pay it.
10.31.2007 10:17pm
David M. Nieporent (www):
but the defendant faces the risk of spending years in prison under a statute later found to be unconstitutional.
ReaderY: but the statute is only unconstitutional in some other respect, not the respect in which he violated it. (Otherwise he could just bring an as applied challenge.) Why should the fact that the statute, e.g., unconstitutionally prevents someone from innocently showing your neighbor the child pr0n you received in the mail (*) protect the defendant, who was culpably running a child pr0n business? If he's doing the latter, he should face the risk of spending years in prison.

(This is different than a vagueness challenge, where the defendant can claim that he didn't know that what he was doing was illegal.)

(*) A scenario which kept coming up in oral arguments.
11.1.2007 3:37pm