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Supreme Court Recognizes Solicitation / Offer to Commit Crime Exception to the First Amendment:

Today's U.S. v. Williams opinion might seem like a child pornography case; but the key (though not unexpected) holding is that there is a First Amendment exception for solicitation of crime or offer to commit a crime, see Part II-B.

This is not the same as the "incitement" exception, which bars only speech that's intended and likely to produce imminent lawless conduct. Rather, it's an exception that covers a proposal to engage in specified illegal activity, even if the activity is to happen at some unspecified time in the future, and even if the activity isn't likely to happen. "Please help me out of my marital problems, my friend, by killing my wife" wouldn't be incitement, for instance, but it would be solicitation. Likewise, "please help me out of my marital problems, my friend, by shooting my wife right now" probably wouldn't be incitement if it was highly unlikely to succeed, but it would also be solicitation or attempt (some solicitations are punishable as attempts). Solicitation to commit a crime is generally outlawed, but of course criminal laws have to pass muster under the First Amendment. Williams holds that this is indeed so.

From there, the result is pretty straightforward. The statute at issue in Williams bars

knowingly advertis[ing], promot[ing], present[ing], distribut[ing], or solicit[ing] ... 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 ... 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 ....
Material that's actually covered by subsections (i) and (ii) is constitutionally unprotected, whether under the "obscenity" exception or the "child pornography" exception. The Court read "advertis[ing], promot[ing], present[ing], distribut[ing], or solicit[ing]" as essentially involving solicitation or offer of a specific transaction in a particular item. That the item might not actually be obscenity or child pornography doesn't matter because the general criminal law is that an attempt to commit a crime is punishable even if the attempt is factually impossible. Trying to buy illegal drugs, for instance, by soliciting someone to sell them to you is generally a criminal attempt even if the solicited seller was only going to deliver fake drugs rather than real ones. So the bottom line is that the prohibited conduct constitutes criminally punishable solicitation, offer, or attempt to get or give constitutionally unprotected material.

So this will make clear that solicitation, offer, and attempt to commit a wide range of crimes -- including the distribution or receipt of child pornography -- is indeed criminally punishable. And, contrary to Justice Souter's dissent (joined by Justice Ginsburg), I don't see how this will materially change the protection offered to distribution of nonobscene pictures that don't actually depict real children, but instead show computer- or hand-drawn children, or adults that look like children: A distributor or recipient may avoid liability under the statute by simply offering or asking for "pictures of adults who look underage" or "computer-generated pictures that look like children."

Such offers or solicitations won't "reflect[] the belief, or [be] intended to cause another to believe" that the material is a visual depiction of an actual child engaging in sex. (Of course, if the material does prove to be actual child porn involving actual children, and the recipient knows or learns that the material so qualifies, he might be liable for possession of actual child porn, but that would be true regardless of the solicitation/offer ban.) And to the extent that such offers or solicitations may be said to reflect a belief or are intended to cause a belief that the material is obscene -- a complicated matter given the vagueness of the term "obscene" -- the problems that the law poses are not materially different from the problems posed by obscenity law in the first place.

So the opinion strikes me as generally quite sound, not much of a change in child pornography law, and an important but fully expected recognition of the solicitation/offer exception. The recognition of this exception requires the Court to define and police the "important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality," the latter of which is protected under Brandenburg v. Ohio and many other cases; but the Court's recognition of this distinction, which I just quoted, and the necessity for such a distinction, leads me not to worry too much about the future on this score. So on balance it's not surprising to me that the result was a lopsided 7-2.

Related Posts (on one page):

  1. Supreme Court Recognizes Solicitation / Offer to Commit Crime Exception to the First Amendment:
  2. Brief Guide to the First Amendment and Sexually Themed Speech:
  3. BREAKING -- Court Upholds Child Porn Law 7-2:
cathyf:
So, is Henny Youngman's classic "Take my wife...Please!" considered solicitation of kidnapping?
5.19.2008 3:31pm
tarheel:
Prof. Volokh:

I don't disagree with much of what you wrote, but I do think the phrase "in a manner that reflects the belief" is problematic. The way I read the statute, if I solicit material that I know is not child porn, but do so "in a manner that reflects the belief" that it is, then I am liable. The Court says the defendant must actually believe it, but that is not what the statute says.
5.19.2008 3:41pm
OrinKerr:
I had the same reaction, Eugene: the opinion struck me as sound and also as important (enough that I may assign parts of it in my 1L crim law class next fall).
5.19.2008 3:45pm
Katl L (mail):
At many dotcom stroes you can buy anine.Many mof them have explicit sex images.Under japanese law ph is forbidden, too avoid punishment they use image of child looking women in movies and anime.Sometimes the character is supposed to be 18 yo but looks like 8 years old and talk like 8yo.eg Saikano.Usually they look and are supposed to be 15 yo more ore less and are engaged in sex , and not only in was is call hentai.Does dot com sellers and they have to take out of their pages and cartoon network from its programming Dragon Ball , a kid aimed series with nudity and sex?
5.19.2008 4:20pm
Anon Y. Mous:
Won't this same reasoning apply to any solicitation of any activity that can be construed as criminal? Let's say I decide to call a protest of the arbitrary policies of The Volokh Conspiracy that prohibit me from having front page posting access. So, I call for a demonstration in the halls of UCLA outside of EV's office. No doubt, my righteous supporters and I will be arrested for trespass, but couldn't I also be charged with solicitation of criminal activity under this legal theory?
5.19.2008 4:44pm
BGates:
While I don't mean to question their patriotism, does this mean anti-war demonstrators with "support the troops - frag an officer" posters are committing a crime?
5.19.2008 5:10pm
whit:
anon, this is HARDLY a novel theory.

iow, nothing (in general) has changed.

solicitation to "demonstrate" isn't a crime because there is no such crime of demonstrating.

and demonstrating (in the example you gave as a i understand it) would only ALSO be trespassing once you were told to leave by person who had lawful authority to tell you that (like property owner or his agent).

otoh, the famous line from repo man "let's get sushi and not pay" ...
5.19.2008 5:12pm
whit:
"While I don't mean to question their patriotism, does this mean anti-war demonstrators with "support the troops - frag an officer" posters are committing a crime?"

no more so than a person wearing a "kill the rich" t-shirt is.

there is room for hyperbole.
5.19.2008 5:14pm
KJJ:
Suppose I email my friend the following message "lets steal the space shuttle tonight and fly to the moon". Under Williams wouldn't I be criminally liable even though my proposal is impossible.
5.19.2008 5:17pm
darelf:
KJJ:
Is the answer, "Only if you knew it was impossible" ?
5.19.2008 5:33pm
KJJ:
Is the answer, "Only if you knew it was impossible" ?



I don't think so. In Williams the defendant offered nude photos of his daughter however he didn't possess these photos. Certainly he didn't believe it was possible to distribute something he didn't have.
5.19.2008 5:39pm
TGGP (mail) (www):
Reminds me of Kinsella's Causality and Aggression.
5.19.2008 6:42pm
David Schwartz (mail):
KJJ: Williams is nothing like "let's steal the space shuttle and fly to the moon". In Williams, the offer was plausible and fraudulent. Laws against offering to sell suger by claiming it's cocaine don't seem to be controversial.
5.19.2008 6:45pm
Scrivener:
I am uncomfortable with the blanket statement that "offers to give ... what it is unlawful to possess have no social value [even when the offer is only a convincingly sounding lie] and thus ... enjoy no First Amendment protection" (page 12).

Note that during the oral argument, the counsel for the defendant was asked this question, and could not come up with any arguments as far as I could see.

Fiction (by definition being a pile of lies) certainly has some social value even when it pretends to be the truth, sometimes convincingly, see e.g. Robinson Crusoe.

And a chilling effect of this statement on, for example, authoring a book entitled "Steal this Book" (which also has some social value) must also be considered.
5.19.2008 6:54pm
Fub:
whit wrote at 5.19.2008 4:12pm:
otoh, the famous line from repo man "let's get sushi and not pay" ...
Much easier to just think of a plate o' shrimp.
5.19.2008 7:41pm
htom (mail):
The first thing that comes to mind is the prosecutor's offer of a lower charge in exchange for a guilty plea to that charge. Is it soliciting perjury?
5.19.2008 8:33pm
whit:
it's all part of the "lattice of coincidence" fub. i suggest you read dianetics. it explains it all
5.19.2008 10:44pm
ratel (mail):
I have not yet read the decision, but if the court really has created a solicitation exception doesn't that essentially overrule Brandenburg. If I recall the facts of Brandenburg the speaker was calling on a gathering of armed clansmen to take "revengence" on blacks. Would this not qualify as solicitation under the new standard.
5.20.2008 1:02am
George Weiss (mail) (www):
I agree with the decision..but i don't understand the reasoning at all.

it seems to me that, under the facts of this case, the solicitation to commit the crime would ALSO have been an incitement to produce imminent lawless conduct. All that needed to be done was click on a link-that sounds pretty imminent.

so why is there a need to categorically extend the 1st amend. exception to all solicitations? would this exception apply to non imminent solicitations? completely fatificil solicitations

sure, the defense brings up the possibility of being prosecuted under solicitation when you are a braggart or liar and don't really have the goods. But in this case-the guy DID have the goods. As i understand it, in fact, the agent could have just clicked on the link-and then there would have been a distribution charge having nothing to do with solicitation.

in order to make his case,
Scalia argues that upheld speech crimes like conspiracy (even where the conspiracy is outrageous) shows that speech promoting a crime need not be imminent to fall within the exception. But conspiracy is not a pure speech crime-it requires an overt act.

so now, without any facts to use as a reference, we are thrust into an arena where solicitation can be criminalized (possibly whether or not it is realistic)-and must now try to draw a new distinction between abstract and specific solicitation.

further, in drawing this distinction in the future, we seem barred from using an "imminence" test as a guide for whether the solicitation is abstract or not-since this decision clearly seems to suggest that speech can be solicitation whether or not it is imminent, since it creates a brand new categorically excluded exception for solicitation, while acknowledging the previews exception for incitement.
5.20.2008 2:13am
George Weiss (mail) (www):
oh wait is see now. its a facial challenge and the SCOTUS allows a defendant, under a statue which, even if applied to him is constitutional, would be unconstitutional if applied to others and as such is overbraod.

ok.

but gee thats pretty weird-i can see facial challenges-but when they are brought by criminal defendants who would otherwise lack standing becuase as applied the statue is clearly constitutional-seems pretty weird.

its one thing to give watchdog organizations the ability to attack statues when they are passed if they are outrageous, rather that waiting for enforcement.

its quite another to allow criminal defendants whose activity is not constitutionally protected to get off becuase the statue could be, as some future date, applied unconstitutionally.

if the statute is over broad, sure challenge it facially-but is the time to challenge it when a criminal defendant, whose actions are admittedly not protected, is caught doing something under that act?
5.20.2008 2:54am
RainerK:
As a non-lawyer and mere citizen living under the law, allow me to point out that I think this decision is going to lead here:
Shifting the definition of a criminal act from actually doing it, that is taking concrete physical action to treating speaking about it the same as taking action to commit. Slippery slope for sure. That the case involves cp, is typical. A sign of the times we're in: Want to push something through, invoke children and link it to sex. Done.
Too bad this thread is dying and I hope you will revisit it from a different angle than strictly legal reasoning.
I find your summary dismissal of any concerns troubling indeed.
5.20.2008 10:30am
JWR (mail):
Rather, it's an exception that covers a proposal to engage in specified illegal activity, even if the activity is to happen at some unspecified time in the future, and even if the activity isn't likely to happen.

Prof. Volokh, do you think there might be some limitation here, for example relating to conditional future events. Consider if a group of Iranians in the United States agreed, together, to train in the arts of self-defense (and maybe even bomb-making), so that IF the United States ever invaded Iran in the manner it invaded Iraq, the group could then travel to Iran to defend their country and fight against the occupation.

Are these men guilty of conspiracy to kill American nationals overseas? Or is there some limitation based on remoteness, the conditional nature of the agreement, etc?
5.20.2008 11:26am
Fub:
whit wrote at 5.19.2008 9:44pm:
it's all part of the "lattice of coincidence" fub. i suggest you read dianetics. it explains it all
I can't hear you. I'm using a scrambler. But if I have time between reading all these cases and getting a hundred chest x-rays a year, I'll try it.

I tend to agree with you and Prof. Volokh. There's not much new law in this case. Its main feature is that it details the distinction between protected advocacy and unprotected solicitation.

I also think George Weiss' critique at 5.20.2008 1:13am is important:
so now, without any facts to use as a reference, we are thrust into an arena where solicitation can be criminalized (possibly whether or not it is realistic)-and must now try to draw a new distinction between abstract and specific solicitation.
So, I'll be careful to always tell friends to pay their sushi bills. Except when they're in Russia. They don't pay bills in Russia, it's all free.
5.20.2008 1:20pm