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.