Brief Guide to the First Amendment and Sexually Themed Speech:

I'm writing a post about this morning's U.S. v. Williams decision, and I realized it would be good to lay out this brief guide — it might be helpful for future controversies, too.

I. Obscenity: The Supreme Court has held that the First Amendment does not protect the distribution of "obscenity," a narrow category that basically covers hard-core pornography. To be obscenity, a work must satisfy all three of the following elements, largely drawn from Miller v. California (1973):

1. "the [a] average person, [b] applying contemporary community standards, would find that the work, [c] taken as a whole, [d] appeals to the prurient interest,"

2. "the work depicts or describes, [a] in a patently offensive way [under [b] contemporary community standards, Smith v. U.S. (1977)], [c] sexual conduct specifically defined by the applicable state law," and

3. "the work, [a] taken as a whole, [b] lacks serious [c] literary, artistic, political, or scientific value[, [d] applying national standards and not just community standards."

Note also that, (4) mere private possession of obscenity can't be constitutionally outlawed, though distribution and even transportation for one's own private use may be. See Stanley v. Georgia (1969); U.S. v. Orito (1973).

II. Child Pornography: The Supreme Court has also held that the First Amendment does not protect the distribution or possession of "child pornography," which basically covers

1. "visual[] depict[ions]" of

2. actual children below the age of majority (and not just fictional pictures or pictures of adults who look like children)

3. "performing sexual acts or lewdly exhibiting their genitals."

See New York v. Ferber (1982); Ashcroft v. Free Speech Coalition (2002) a category that basically covers depictions of actual children in sexual contexts.

III. Distribution of Sexually Themed Material to Minors: The Court has held that the law may bar distribution to specific minors of sexually themed material, even if the material doesn't fall within the above exceptions. The test for such unprotected material is basically the Miller test (see item I above), with "of minors" or "for minors" added to each prong (e.g., "the work taken as a whole, lacks serious literary, artistic, political, or scientific value for minors"). Ginsberg v. New York (1968), a pre-Miller case, upheld a law that implemented the then-current obscenity test with "to minors" added at the end of each prong; most lower courts and commentators have assumed that Ginsberg plus Miller justify laws that implement the Miller-based test given above.

IV. Public Display of Sexually Themed Material, Where Minors and Offended Viewers Might See It Alongside Willing Viewers? It's not clear to what extent the government may bar this, at least assuming the material fits within the obscene-as-to-minors framework described in item III — the Court has struck down limits on Internet distribution of such material, but lower courts had upheld limits on non-Internet distribution and display, for instance through coin-operated newsracks. The Supreme Court has also strongly suggested that the display of such material -- including mere nudity and not just obscene-as-to-minors material -- on broadcast television is constitutionally unprotected.

V. Pornography More Generally: Sexually themed material that fits in none of the above categories is constitutionally protected, though the "erogenous zoning" cases allow greater regulations of — though generally not total bans on — bricks-and-mortar businesses, such as theaters and bookstores, that distribute pornographic material to walk-in customers.

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.