OCTOBER TERM, 2007

(Slip Opinion)

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v. WILLIAMS

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 06694.

Argued October 30, 2007Decided May 19, 2008

After this Court found facially overbroad a federal statutory provision

criminalizing the possession and distribution of material pandered as
child pornography, regardless of whether it actually was that,
Ashcroft v. Free Speech Coalition, 535 U. S. 234, Congress passed the
pandering and solicitation provision at issue, 18 U. S. C.
2252A(a)(3)(B). Respondent Williams pleaded guilty to this offense
and others, but reserved the right to challenge his pandering convictions constitutionality. The District Court rejected his challenge, but
the Eleventh Circuit reversed, finding the statute both overbroad under the First Amendment and impermissibly vague under the Due
Process Clause.
Held:
1. Section 2252A(a)(3)(B) is not overbroad under the First Amendment. Pp. 618.
(a) A statute is facially invalid if it prohibits a substantial
amount of protected speech. Section 2252A(a)(3)(B) generally prohibits offers to provide and requests to obtain child pornography. It targets not the underlying material, but the collateral speech introducing such material into the child-pornography distribution network.
Its definition of material or purported material that may not be pandered or solicited precisely tracks the material held constitutionally
proscribable in New York v. Ferber, 458 U. S. 747, and Miller v. California, 413 U. S. 15: obscene material depicting (actual or virtual)
children engaged in sexually explicit conduct, and any other material
depicting actual children engaged in sexually explicit conduct. The
statutes important features include: (1) a scienter requirement; (2)
operative verbs that are reasonably read to penalize speech that accompanies or seeks to induce a child pornography transfer from one

UNITED STATES v. WILLIAMS

Syllabus
person to another; (3) a phrasein a manner that reflects the belief, ibid.that has both the subjective component that the defendant must actually have held the belief that the material or purported material was child pornography, and the objective component
that the statement or action must manifest that belief; (4) a phrase
in a manner . . . that is intended to cause another to believe, ibid
that has only the subjective element that the defendant must intend that the listener believe the material to be child pornography;
and (5) a sexually explicit conduct definition that is very similar to
that in the New York statute upheld in Ferber. Pp. 611.
(b) As thus construed, the statute does not criminalize a substantial amount of protected expressive activity. Offers to engage in illegal transactions are categorically excluded from First Amendment
protection. E.g., Pittsburgh Press Co. v. Pittsburgh Commn on Human Relations, 413 U. S. 376, 388. The Eleventh Circuit mistakenly
believed that this exclusion extended only to commercial offers to
provide or receive contraband. The exclusions rationale, however, is
based not on the less privileged status of commercial speech, but on
the principle that offers to give or receive what it is unlawful to possess have no social value and thus enjoy no First Amendment protection. The constitutional defect in Free Speech Coalitions pandering
provision was that it went beyond pandering to prohibit possessing
material that could not otherwise be proscribed. The Eleventh Circuits erroneous conclusion led it to apply strict scrutiny to
2252A(a)(3)(B), lodging three fatal objections that lack merit.
Pp. 1118.
2. Section 2252A(a)(3)(B) is not impermissibly vague under the Due
Process Clause. A conviction fails to comport with due process if the
statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement. Hill v. Colorado, 530 U. S. 703, 732. In the First
Amendment context plaintiffs may argue that a statute is overbroad
because it is unclear whether it regulates a substantial amount of
protected speech. Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U. S. 489, 494495, and nn. 6 and 7. The Eleventh Circuit mistakenly believed that in a manner that reflects the belief and in a
manner . . . that is intended to cause another to believe were vague
and standardless phrases that left the public with no objective measure of conformance. What renders a statute vague, however, is not
the possibility that it will sometimes be difficult to determine
whether the incriminating fact it establishes has been proved; but
rather the indeterminacy of what that fact is. See, e.g., Coates v.
Cincinnati, 402 U. S. 611, 614. There is no such indeterminacy here.

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Syllabus
The statutes requirements are clear questions of fact. It may be difficult in some cases to determine whether the requirements have
been met, but courts and juries every day pass upon the reasonable
import of a defendants statements and upon knowledge, belief and
intent. American Communications Assn. v. Douds, 339 U. S. 382,
411. Pp. 1821.
444 F. 3d 1286, reversed.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined.
STEVENS, J., filed a concurring opinion, in which BREYER, J., joined.
SOUTER, J., filed a dissenting opinion, in which GINSBURG, J., joined.

Cite as: 553 U. S. ____ (2008)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 06694
_________________

UNITED STATES, PETITIONER v. MICHAEL

WILLIAMS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[May 19, 2008]

JUSTICE SCALIA delivered the opinion of the Court.

Section 2252A(a)(3)(B) of Title 18, United States Code,
criminalizes, in certain specified circumstances, the pandering or solicitation of child pornography. This case
presents the question whether that statute is overbroad
under the First Amendment or impermissibly vague under
the Due Process Clause of the Fifth Amendment.
I

We have long held that obscene speechsexually explicit material that violates fundamental notions of decencyis not protected by the First Amendment. See
Roth v. United States, 354 U. S. 476, 484485 (1957). But
to protect explicit material that has social value, we have
limited the scope of the obscenity exception, and have
overturned convictions for the distribution of sexually
graphic but nonobscene material. See Miller v. California,
413 U. S. 15, 2324 (1973); see also, e.g., Jenkins v. Georgia, 418 U. S. 153, 161 (1974).
Over the last 25 years, we have confronted a related and
overlapping category of proscribable speech: child pornog-

UNITED STATES v. WILLIAMS

Opinion of the Court

raphy. See Ashcroft v. Free Speech Coalition, 535 U. S.

234 (2002); Osborne v. Ohio, 495 U. S. 103 (1990); New
York v. Ferber, 458 U. S. 747 (1982). This consists of
sexually explicit visual portrayals that feature children.
We have held that a statute which proscribes the distribution of all child pornography, even material that does not
qualify as obscenity, does not on its face violate the First
Amendment. See id., at 751753, 756764. Moreover, we
have held that the government may criminalize the possession of child pornography, even though it may not
criminalize the mere possession of obscene material involving adults. Compare Osborne, supra, at 111, with
Stanley v. Georgia, 394 U. S. 557, 568 (1969).
The broad authority to proscribe child pornography is
not, however, unlimited. Four Terms ago, we held facially
overbroad two provisions of the federal Child Pornography
Prevention Act of 1996 (CPPA). Free Speech Coalition, 535
U. S., at 258. The first of these banned the possession and
distribution of any visual depiction that is, or appears
to be, of a minor engaging in sexually explicit conduct,
even if it contained only youthful-looking adult actors or
virtual images of children generated by a computer. Id.,
at 239241 (quoting 18 U. S. C. 2256(8)(B)). This was
invalid, we explained, because the child-protection rationale for speech restriction does not apply to materials produced without children. See 535 U. S., at 249251, 254.
The second provision at issue in Free Speech Coalition
criminalized the possession and distribution of material
that had been pandered as child pornography, regardless
of whether it actually was that. See id., at 257 (citing 18
U. S. C. 2256(8)(D)). A person could thus face prosecution for possessing unobjectionable material that someone
else had pandered. 535 U. S., at 258. We held that this
prohibition, which did more than prohibit pandering,
was also facially overbroad. Ibid.
After our decision in Free Speech Coalition, Congress

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Opinion of the Court

went back to the drawing board and produced legislation

with the unlikely title of the Prosecutorial Remedies and
Other Tools to end the Exploitation of Children Today Act
of 2003, 117 Stat. 650. We shall refer to it as the Act.
Section 503 of the Act amended 18 U. S. C. 2252A to add
a new pandering and solicitation provision, relevant portions of which now read as follows:
(a) Any person who
(3) knowingly
.
.
.
.
.
(B) advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign
commerce by any means, including by computer, 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 is, or
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,
.
.
.
.
.
shall be punished as provided in subsection (b).
2252A(a)(3)(B) (2000 ed., Supp. V).
Section 2256(2)(A) defines sexually explicit conduct as
actual or simulated

(i) sexual intercourse, including genital-genital, oral-

genital, anal-genital, or oral-anal, whether between

persons of the same or opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the genitals or pubic area

UNITED STATES v. WILLIAMS

Opinion of the Court

of any person.
Violation of 2252A(a)(3)(B) incurs a minimum sentence of
5 years imprisonment and a maximum of 20 years. 18
U. S. C. 2252A(b)(1).
The Acts express findings indicate that Congress was
concerned that limiting the child-pornography prohibition
to material that could be proved to feature actual children,
as our decision in Free Speech Coalition required, would
enable many child pornographers to evade conviction. See
501(9), (10), 117 Stat. 677. The emergence of new technology and the repeated retransmission of picture files
over the Internet could make it nearly impossible to prove
that a particular image was produced using real childreneven though [t]here is no substantial evidence that
any of the child pornography images being trafficked today
were made other than by the abuse of real children,
virtual imaging being prohibitively expensive. 501(5),
(7), (8), (11), id., at 676678; see also Dept. of Justice,
Office of Community Oriented Policing Services, R.
Wortley & S. Smallbone, Child Pornography on the Internet 9 (May 2006), on line at hhtp://www.cops.
usdoj.gov/mime/open.pdf?Item=1729 (hereinafter Child
Pornography on the Internet) (as visited Jan. 7, 2008, and
available in Clerk of Courts case file).
B
The following facts appear in the opinion of the Eleventh Circuit, 444 F. 3d 1286, 1288 (2006). On April 26,
2004, respondent Michael Williams, using a sexually
explicit screen name, signed in to a public Internet chat
room. A Secret Service agent had also signed in to the
chat room under the moniker Lisa n Miami. The agent
noticed that Williams had posted a message that read:
Dad of toddler has good pics of her an [sic] me for swap
of your toddler pics, or live cam. The agent struck up a
conversation with Williams, leading to an electronic ex-

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Opinion of the Court

change of nonpornographic pictures of children. (The

agents picture was in fact a doctored photograph of an
adult.) Soon thereafter, Williams messaged that he had
photographs of men molesting his 4-year-old daughter.
Suspicious that Lisa n Miami was a law-enforcement
agent, before proceeding further Williams demanded that
the agent produce additional pictures. When he did not,
Williams posted the following public message in the chat
room: HERE ROOM; I CAN PUT UPLINK CUZ IM FOR
REALSHE CANT. Appended to this declaration was a
hyperlink that, when clicked, led to seven pictures of
actual children, aged approximately 5 to 15, engaging in
sexually explicit conduct and displaying their genitals.
The Secret Service then obtained a search warrant for
Williamss home, where agents seized two hard drives
containing at least 22 images of real children engaged in
sexually explicit conduct, some of it sadomasochistic.
Williams was charged with one count of pandering child
pornography under 2252A(a)(3)(B) and one count of
possessing child pornography under 2252A(a)(5)(B). He
pleaded guilty to both counts but reserved the right to
challenge the constitutionality of the pandering conviction.
The District Court rejected his challenge, and sentenced
him to concurrent 60-month sentences on the two counts.
No. 0420299CRMIDDLEBROOKS (SD Fla., Aug. 20,
2004), App. B to Pet. for Cert. 46a69a. The United States
Court of Appeals for the Eleventh Circuit reversed the
pandering conviction, holding that the statute was both
overbroad and impermissibly vague. 444 F. 3d, at 1308
1309.1

1 Williams also challenged his sentence for the possession conviction

on the ground that he was entitled to resentencing in light of our
decision in United States v. Booker, 543 U. S. 220 (2005). See 444 F. 3d,
at 1307308. The Eleventh Circuit rejected this challenge and therefore affirmed his 60-month sentence despite reversing his pandering
conviction. See id., at 1309. Although Williams did not receive a

UNITED STATES v. WILLIAMS

Opinion of the Court

We granted certiorari. 549 U. S. ___ (2007).

II

According to our First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a substantial amount of protected speech. The doctrine seeks to
strike a balance between competing social costs. Virginia
v. Hicks, 539 U. S. 113, 119120 (2003). On the one hand,
the threat of enforcement of an overbroad law deters
people from engaging in constitutionally protected speech,
inhibiting the free exchange of ideas. On the other hand,
invalidating a law that in some of its applications is perfectly constitutionalparticularly a law directed at conduct so antisocial that it has been made criminalhas
obvious harmful effects. In order to maintain an appropriate balance, we have vigorously enforced the requirement that a statutes overbreadth be substantial, not only
in an absolute sense, but also relative to the statutes
plainly legitimate sweep. See Board of Trustees of State
Univ. of N. Y. v. Fox, 492 U. S. 469, 485 (1989); Broadrick
v. Oklahoma, 413 U. S. 601, 615 (1973). Invalidation for
overbreadth is strong medicine that is not to be
casually employed. Los Angeles Police Dept. v. United
Reporting Publishing Corp., 528 U. S. 32, 39 (1999) (quoting Ferber, 458 U. S., at 769).
The first step in overbreadth analysis is to construe the
challenged statute; it is impossible to determine whether a
statute reaches too far without first knowing what the
statute covers. Generally speaking, 2252A(a)(3)(B) prohibits offers to provide and requests to obtain child pornography. The statute does not require the actual exis

reduced sentence as a result of his appeal, this case is not moot. We

held in Benton v. Maryland, 395 U. S. 784 (1969), that there is no

jurisdictional bar to consideration of challenges to multiple convictions,

even though concurrent sentences were imposed. Id., at 791.

Cite as: 553 U. S. ____ (2008)

Opinion of the Court

tence of child pornography. In this respect, it differs from

the statutes in Ferber, Osborne, and Free Speech Coalition,
which prohibited the possession or distribution of child
pornography. Rather than targeting the underlying material, this statute bans the collateral speech that introduces
such material into the child-pornography distribution
network. Thus, an Internet user who solicits child pornography from an undercover agent violates the statute, even
if the officer possesses no child pornography. Likewise, a
person who advertises virtual child pornography as depicting actual children also falls within the reach of the
statute.
The statutes definition of the material or purported
material that may not be pandered or solicited precisely
tracks the material held constitutionally proscribable in
Ferber and Miller: obscene material depicting (actual or
virtual) children engaged in sexually explicit conduct, and
any other material depicting actual children engaged in
sexually explicit conduct. See Free Speech Coalition, 535
U. S., at 245246 (stating that the First Amendment does
not protect obscenity or pornography produced with actual
children); id., at 256 (holding invalid the challenged provision of the CPPA because it cover[ed] materials beyond
the categories recognized in Ferber and Miller).
A number of features of the statute are important to our
analysis:
First, the statute includes a scienter requirement. The
first word of 2252A(a)(3)knowinglyapplies to both
of the immediately following subdivisions, both the previously existing 2252A(a)(3)(A)2 and the new 2252A(a)
(3)(B) at issue here. We think that the best reading of the
term in context is that it applies to every element of the

2 Section 2252A(a)(3)(A) (2000 ed., Supp. V) reads: reproduces any

child pornography for distribution through the mails, or in interstate or
foreign commerce by any means, including by computer.

UNITED STATES v. WILLIAMS

Opinion of the Court

two provisions. This is not a case where grammar or

structure enables the challenged provision or some of its
parts to be read apart from the knowingly requirement.
Here knowingly introduces the challenged provision
itself, making clear that it applies to that provision in its
entirety; and there is no grammatical barrier to reading it
that way.
Second, the statutes string of operative verbs
advertises, promotes, presents, distributes, or solicitsis
reasonably read to have a transactional connotation. That
is to say, the statute penalizes speech that accompanies or
seeks to induce a transfer of child pornographyvia reproduction or physical deliveryfrom one person to another. For three of the verbs, this is obvious: advertising,
distributing, and soliciting are steps taken in the course of
an actual or proposed transfer of a product, typically but
not exclusively in a commercial market. When taken in
isolation, the two remaining verbspromotes and presentsare susceptible of multiple and wide-ranging
meanings. In context, however, those meanings are narrowed by the commonsense canon of noscitur a sociis
which counsels that a word is given more precise content
by the neighboring words with which it is associated. See
Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961); 2A
N. Singer & J. Singer, Sutherland Statutes and Statutory
Construction 47.16 (7th ed. 2007). Promotes, in a list
that includes solicits, distributes, and advertises, is
most sensibly read to mean the act of recommending
purported child pornography to another person for his
acquisition. See American Heritage Dictionary 1403 (4th
ed. 2000) (def. 4: To attempt to sell or popularize by advertising or publicity). Similarly, presents, in the context of the other verbs with which it is associated, means
showing or offering the child pornography to another
person with a view to his acquisition. See id., at 1388 (def.
3a: To make a gift or award of). (The envisioned acquisi-

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Opinion of the Court

tion, of course, could be an electronic one, for example

reproduction of the image on the recipients computer
screen.)
To be clear, our conclusion that all the words in this list
relate to transactions is not to say that they relate to
commercial transactions. One could certainly distribute
child pornography without expecting payment in return.
Indeed, in much Internet file sharing of child pornography
each participant makes his files available for free to other
participantsas Williams did in this case. Distribution
may involve sophisticated pedophile rings or organized
crime groups that operate for profit, but in many cases, is
carried out by individual amateurs who seek no financial
reward. Child Pornography on the Internet 9. To run
afoul of the statute, the speech need only accompany or
seek to induce the transfer of child pornography from one
person to another.
Third, the phrase in a manner that reflects the belief
includes both subjective and objective components. [A]
manner that reflects the belief is quite different from a
manner that would give one cause to believe. The first
formulation suggests that the defendant must actually
have held the subjective belief that the material or purported material was child pornography. Thus, a misdescription that leads the listener to believe the defendant is
offering child pornography, when the defendant in fact
does not believe the material is child pornography, does
not violate this prong of the statute. (It may, however,
violate the manner . . . that is intended to cause another
to believe prong if the misdescription is intentional.)
There is also an objective component to the phrase manner that reflects the belief. The statement or action must
objectively manifest a belief that the material is child
pornography; a mere belief, without an accompanying
statement or action that would lead a reasonable person
to understand that the defendant holds that belief, is

10

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Opinion of the Court

insufficient.
Fourth, the other key phrase, in a manner . . . that is
intended to cause another to believe, contains only a
subjective element: The defendant must intend that the
listener believe the material to be child pornography, and
must select a manner of advertising, promoting, presenting, distributing, or soliciting the material that he thinks
will engender that beliefwhether or not a reasonable
person would think the same. (Of course in the ordinary
case the proof of the defendants intent will be the fact
that, as an objective matter, the manner of advertising, promoting, presenting, distributing, or soliciting
plainly sought to convey that the material was child
pornography.)
Fifth, the definition of sexually explicit conduct (the
visual depiction of which, engaged in by an actual minor,
is covered by the Acts pandering and soliciting prohibition
even when it is not obscene) is very similar to the definition of sexual conduct in the New York statute we upheld against an overbreadth challenge in Ferber. That
defined sexual conduct as actual or simulated sexual
intercourse, deviate sexual intercourse, sexual bestiality,
masturbation, sado-masochistic abuse, or lewd exhibition
of the genitals. 458 U. S., at 751. Congress used essentially the same constitutionally approved definition in the
present Act. If anything, the fact that the defined term
here is sexually explicit conduct, rather than (as in Ferber) merely sexual conduct, renders the definition more
immune from facial constitutional attack. [S]imulated
sexual intercourse (a phrase found in the Ferber definition as well) is even less susceptible here of application to
the sorts of sex scenes found in R-rated movieswhich
suggest that intercourse is taking place without explicitly
depicting it, and without causing viewers to believe that
the actors are actually engaging in intercourse. Sexually
explicit conduct connotes actual depiction of the sex act

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11

Opinion of the Court

rather than merely the suggestion that it is occurring.

And simulated sexual intercourse is not sexual intercourse that is merely suggested, but rather sexual intercourse that is explicitly portrayed, even though (through
camera tricks or otherwise) it may not actually have occurred. The portrayal must cause a reasonable viewer to
believe that the actors actually engaged in that conduct on
camera.
Critically, unlike in Free Speech Coalition,
2252A(a)(3)(B)(ii)s requirement of a visual depiction of
an actual minor makes clear that, although the sexual
intercourse may be simulated, it must involve actual
children (unless it is obscene). This change eliminates any
possibility that virtual child pornography or sex between
youthful-looking adult actors might be covered by the term
simulated sexual intercourse.
B
We now turn to whether the statute, as we have construed it, criminalizes a substantial amount of protected
expressive activity.
Offers to engage in illegal transactions are categorically
excluded from First Amendment protection. Pittsburgh
Press Co. v. Pittsburgh Commn on Human Relations, 413
U. S. 376, 388 (1973); Giboney v. Empire Storage & Ice Co.,
336 U. S. 490, 498 (1949). One would think that this
principle resolves the present case, since the statute
criminalizes only offers to provide or requests to obtain
contrabandchild obscenity and child pornography involving actual children, both of which are proscribed, see
18 U. S. C. 1466A(a), 2252A(a)(5)(B) (2000 ed., Supp. V),
and the proscription of which is constitutional, see Free
Speech Coalition, 535 U. S., at 245246, 256. The Eleventh Circuit, however, believed that the exclusion of First
Amendment protection extended only to commercial offers
to provide or receive contraband: Because [the statute] is
not limited to commercial speech but extends also to non-

12

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Opinion of the Court

commercial promotion, presentation, distribution, and

solicitation, we must subject the content-based restriction
of the PROTECT Act pandering provision to strict scrutiny
. . . . 444 F. 3d, at 1298.
This mistakes the rationale for the categorical exclusion.
It is based not on the less privileged First Amendment
status of commercial speech, see Central Hudson Gas &
Elec. Corp. v. Public Serv. Commn of N. Y., 447 U. S. 557,
562563 (1980), but on the principle that offers to give or
receive what it is unlawful to possess have no social value
and thus, like obscenity, enjoy no First Amendment protection. See Pittsburgh Press, supra, at 387389.3 Many
long established criminal proscriptionssuch as laws
against conspiracy, incitement, and solicitation
criminalize speech (commercial or not) that is intended to
induce or commence illegal activities. See, e.g., ALI,
Model Penal Code 5.02(1) (1985) (solicitation to commit a
crime); 5.03(1)(a) (conspiracy to commit a crime). Offers
to provide or requests to obtain unlawful material,
whether as part of a commercial exchange or not, are
similarly undeserving of First Amendment protection. It
would be an odd constitutional principle that permitted
the government to prohibit offers to sell illegal drugs, but
not offers to give them away for free.
To be sure, there remains an important distinction

3 In Pittsburgh Press, the newspaper argued that we should afford

that category of commercial speech which consists of help-wanted ads
the same level of First Amendment protection as noncommercial
speech, because of its important information-exchange function. We
replied: Whatever the merits of this contention may be in other contexts, it is unpersuasive in this case. Discrimination in employment is
not only commercial activity, it is illegal commercial activity . . . . We
have no doubt that a newspaper constitutionally could be forbidden to
publish a want ad proposing a sale of narcotics or soliciting prostitutes. 413 U. S., at 388. The import of this response is that noncommercial proposals to engage in illegal activity have no greater protection than commercial proposals to do so.

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13

Opinion of the Court

between a proposal to engage in illegal activity and the

abstract advocacy of illegality. See Brandenburg v. Ohio,
395 U. S. 444, 447448 (1969) (per curiam); see also
NAACP v. Claiborne Hardware Co., 458 U. S. 886, 928
929 (1982). The Act before us does not prohibit advocacy
of child pornography, but only offers to provide or requests
to obtain it. There is no doubt that this prohibition falls
well within constitutional bounds. The constitutional
defect we found in the pandering provision at issue in Free
Speech Coalition was that it went beyond pandering to
prohibit possession of material that could not otherwise be
proscribed. 535 U. S., at 258.
In sum, we hold that offers to provide or requests to
obtain child pornography are categorically excluded from
the First Amendment. Since the Eleventh Circuit erroneously concluded otherwise, it applied strict scrutiny to
2252A(a)(3)(B), lodging three fatal objections. We address these objections because they could be recast as
arguments that Congress has gone beyond the categorical
exception.
The Eleventh Circuit believed it a constitutional difficulty that no child pornography need exist to trigger the
statute. In its view, the fact that the statute could punish
a braggart, exaggerator, or outright liar rendered it
unconstitutional. 444 F. 3d, at 1298. That seems to us a
strange constitutional calculus. Although we have held
that the government can ban both fraudulent offers, see,
e.g., Illinois ex rel. Madigan v. Telemarketing Associates,
Inc., 538 U. S. 600, 611612 (2003), and offers to provide
illegal products, the Eleventh Circuit would forbid the
government from punishing fraudulent offers to provide
illegal products. We see no logic in that position; if anything, such statements are doubly excluded from the First
Amendment.
The Eleventh Circuit held that under Brandenburg, the
non-commercial, non-inciteful promotion of illegal child

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Opinion of the Court

pornography is protected, and 2252A(a)(3)(B) therefore

overreaches by criminalizing the promotion of child pornography. 444 F. 3d, at 1298. As we have discussed
earlier, however, the term promotes does not refer to
abstract advocacy, such as the statement I believe that
child pornography should be legal or even I encourage
you to obtain child pornography. It refers to the recommendation of a particular piece of purported child pornography with the intent of initiating a transfer.
The Eleventh Circuit found particularly objectionable
the fact that the reflects the belief prong of the statute
could ensnare a person who mistakenly believes that
material is child pornography. Ibid. This objection has
two conceptually distinct parts. First, the Eleventh Circuit thought that it would be unconstitutional to punish
someone for mistakenly distributing virtual child pornography as real child pornography. We disagree. Offers to
deal in illegal products or otherwise engage in illegal
activity do not acquire First Amendment protection when
the offeror is mistaken about the factual predicate of his
offer. The pandering and solicitation made unlawful by
the Act are sorts of inchoate crimesacts looking toward
the commission of another crime, the delivery of child
pornography. As with other inchoate crimesattempt
and conspiracy, for exampleimpossibility of completing
the crime because the facts were not as the defendant
believed is not a defense. All courts are in agreement
that what is usually referred to as factual impossibility is
no defense to a charge of attempt. 2 W. LaFave, Substantive Criminal Law 11.5(a)(2) (2d ed. 2003). (The author
gives as an example the intended sale of an illegal drug
[that] actually involved a different substance. Ibid.) See
also United States v. Hamrick, 43 F. 3d 877, 885 (CA4
1995) (en banc) (holding that impossibility is no defense to
attempt and citing the holdings of four other Circuits);
ALI, Model Penal Code 5.01, Comment (in attempt prose-

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15

Opinion of the Court

cutions the defendants conduct should be measured

according to the circumstances as he believes them to be,
rather than the circumstances as they may have existed in
fact).
Under this heading the Eleventh Circuit also thought
that the statute could apply to someone who subjectively
believes that an innocuous picture of a child is lascivious. (Clause (v) of the definition of sexually explicit
conduct is lascivious exhibition of the genitals or pubic
area of any person.) That is not so. The defendant must
believe that the picture contains certain material, and
that material in fact (and not merely in his estimation)
must meet the statutory definition. Where the material at
issue is a harmless picture of a child in a bathtub and the
defendant, knowing that material, erroneously believes
that it constitutes a lascivious display of the genitals, the
statute has no application.
Williams and amici raise other objections, which demonstrate nothing so forcefully as the tendency of our overbreadth doctrine to summon forth an endless stream of
fanciful hypotheticals. Williams argues, for example, that
a person who offers nonpornographic photographs of
young girls to a pedophile could be punished under the
statute if the pedophile secretly expects that the pictures
will contain child pornography. Brief for Respondent 19
20. That hypothetical does not implicate the statute,
because the offeror does not hold the belief or intend the
recipient to believe that the material is child pornography.
Amici contend that some advertisements for mainstream Hollywood movies that depict underage characters
having sex violate the statute. Brief for Free Speech
Coalition et al. as Amici Curiae 918. We think it implausible that a reputable distributor of Hollywood movies,
such as Amazon.com, believes that one of these films
contains actual children engaging in actual or simulated
sex on camera; and even more implausible that Ama-

16

UNITED STATES v. WILLIAMS

Opinion of the Court

zon.com would intend to make its customers believe such a

thing. The average person understands that sex scenes in
mainstream movies use nonchild actors, depict sexual
activity in a way that would not rise to the explicit level
necessary under the statute, or, in most cases, both.
There was raised at oral argument the question whether
turning child pornography over to the police might not
count as present[ing] the material. See Tr. of Oral Arg.
911. An interpretation of presents that would include
turning material over to the authorities would of course be
self-defeating in a statute that looks to the prosecution of
people who deal in child pornography. And it would effectively nullify 2252A(d), which provides an affirmative
defense to the possession ban if a defendant promptly
delivers child pornography to a law-enforcement agency.
(The possession offense would simply be replaced by a
pandering offense for delivering the material to lawenforcement officers.) In any event, the verb present
along with distribute and advertise, as well as give,
lend, deliver, and transferwas used in the definition of promote in Ferber. See 458 U. S., at 751 (quoting
N. Y. Penal Law Ann. 263.15 (McKinney 1980)). Despite
that inclusion, we had no difficulty concluding that the
New York statute survived facial challenge. And in the
period since Ferber, despite similar statutory definitions in
other state statutes, see, e.g., Alaska Stat. 11.61.125(d)
(2006), Del. Code Ann., Title 11, 1109(5) (2007), we are
aware of no prosecution for giving child pornography to
the police. We can hardly say, therefore, that there is a
realistic danger that 2252A(a)(3)(B) will deter such
activity. New York State Club Assn., Inc. v. City of New
York, 487 U. S. 1, 11 (1988) (citing Thornhill v. Alabama,
310 U. S. 88, 9798 (1940)).
It was also suggested at oral argument that the statute
might cover documentary footage of atrocities being committed in foreign countries, such as soldiers raping young

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17

Opinion of the Court

children. See Tr. of Oral Arg. 5-7. Perhaps so, if the

material rises to the high level of explicitness that we
have held is required. That sort of documentary footage
could of course be the subject of an as-applied challenge.
The courts presumably would weigh the educational interest in the dissemination of information about the atrocities
against the governments interest in preventing the distribution of materials that constitute a permanent record of
the childrens degradation whose dissemination increases
the harm to the child. Ferber, 458 U. S., at 759. Assuming that the constitutional balance would have to be struck
in favor of the documentary, the existence of that exception would not establish that the statute is substantially
overbroad. The mere fact that one can conceive of some
impermissible applications of a statute is not sufficient to
render it susceptible to an overbreadth challenge. Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 800 (1984). In the vast majority of its
applications, this statute raises no constitutional problems
whatever.
Finally, the dissent accuses us of silently overruling our
prior decisions in Ferber and Free Speech Coalition. See
post, at 12. According to the dissent, Congress has made
an end-run around the First Amendments protection of
virtual child pornography by prohibiting proposals to
transact in such images rather than prohibiting the images themselves. But an offer to provide or request to
receive virtual child pornography is not prohibited by the
statute. A crime is committed only when the speaker
believes or intends the listener to believe that the subject
of the proposed transaction depicts real children. It is
simply not true that this means a protected category of
expression [will] inevitably be suppressed, post, at 13.
Simulated child pornography will be as available as ever,
so long as it is offered and sought as such, and not as real
child pornography. The dissent would require an excep-

18

UNITED STATES v. WILLIAMS

Opinion of the Court

tion from the statutes prohibition when, unbeknownst to

one or both of the parties to the proposal, the completed
transaction would not have been unlawful because it is
(we have said) protected by the First Amendment. We fail
to see what First Amendment interest would be served by
drawing a distinction between two defendants who attempt to acquire contraband, one of whom happens to be
mistaken about the contraband nature of what he would
acquire. Is Congress forbidden from punishing those who
attempt to acquire what they believe to be nationalsecurity documents, but which are actually fakes? To ask
is to answer. There is no First Amendment exception from
the general principle of criminal law that a person attempting to commit a crime need not be exonerated because he has a mistaken view of the facts.
III
As an alternative ground for facial invalidation, the
Eleventh Circuit held that 2252A(a)(3)(B) is void for
vagueness. Vagueness doctrine is an outgrowth not of the
First Amendment, but of the Due Process Clause of the
Fifth Amendment. A conviction fails to comport with due
process if the statute under which it is obtained fails to
provide a person of ordinary intelligence fair notice of
what is prohibited, or is so standardless that it authorizes
or encourages seriously discriminatory enforcement. Hill
v. Colorado, 530 U. S. 703, 732 (2000); see also Grayned v.
City of Rockford, 408 U. S. 104, 108109 (1972). Although
ordinarily [a] plaintiff who engages in some conduct that
is clearly proscribed cannot complain of the vagueness of
the law as applied to the conduct of others, we have relaxed that requirement in the First Amendment context,
permitting plaintiffs to argue that a statute is overbroad
because it is unclear whether it regulates a substantial
amount of protected speech. Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U. S. 489, 494495, and nn. 6

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19

Opinion of the Court

and 7 (1982); see also Reno v. American Civil Liberties

Union, 521 U. S. 844, 870874 (1997). But perfect clarity
and precise guidance have never been required even of
regulations that restrict expressive activity. Ward v.
Rock Against Racism, 491 U. S. 781, 794 (1989).
The Eleventh Circuit believed that the phrases in a
manner that reflects the belief and in a manner . . .
that is intended to cause another to believe are so vague
and standardless as to what may not be said that the
public is left with no objective measure to which behavior
can be conformed. 444 F. 3d, at 1306. The court gave two
examples. First, an email claiming to contain photograph
attachments and including a message that says little
Janie in the bathhubba, hubba! Ibid. According to the
Eleventh Circuit, given that the statute does not require
the actual existence of illegal material, the Government
would have virtually unbounded discretion to deem such
a statement in violation of the reflects the belief prong.
Ibid. The courts second example was an e-mail entitled
Good pics of kids in bed with a photograph attachment
of toddlers in pajamas asleep in their beds. Ibid. The
court described three hypothetical senders: a proud
grandparent, a chronic forwarder of cute photos with racy
tongue-in-cheek subject lines, and a child molester who
seeks to trade the photographs for more graphic material.
Id., at 13061307. According to the Eleventh Circuit,
because the manner in which the photographs are sent is
the same in each case, and because the identity of the
sender and the content of the photographs are irrelevant
under the statute, all three senders could arguably be
prosecuted for pandering. Id., at 1307.
We think that neither of these hypotheticals, without
further facts, would enable a reasonable juror to find,
beyond a reasonable doubt, that the speaker believed and
spoke in a manner that reflected the belief, or spoke in a
manner intended to cause another to believe, that the

20

UNITED STATES v. WILLIAMS

Opinion of the Court

pictures displayed actual children engaged in sexually

explicit conduct as defined in the Act. The prosecutions
would be thrown out at the threshold.
But the Eleventh Circuits error is more fundamental
than merely its selection of unproblematic hypotheticals.
Its basic mistake lies in the belief that the mere fact that
close cases can be envisioned renders a statute vague.
That is not so. Close cases can be imagined under virtually any statute. The problem that poses is addressed, not
by the doctrine of vagueness, but by the requirement of
proof beyond a reasonable doubt. See In re Winship, 397
U. S. 358, 363 (1970).
What renders a statute vague is not the possibility that
it will sometimes be difficult to determine whether the
incriminating fact it establishes has been proved; but
rather the indeterminacy of precisely what that fact is.
Thus, we have struck down statutes that tied criminal
culpability to whether the defendants conduct was annoying or indecentwholly subjective judgments without statutory definitions, narrowing context, or settled
legal meanings. See Coates v. Cincinnati, 402 U. S. 611,
614 (1971); Reno, supra, at 870871, and n. 35.
There is no such indeterminacy here. The statute requires that the defendant hold, and make a statement
that reflects, the belief that the material is child pornography; or that he communicate in a manner intended to
cause another so to believe. Those are clear questions of
fact. Whether someone held a belief or had an intent is a
true-or-false determination, not a subjective judgment
such as whether conduct is annoying or indecent.
Similarly true or false is the determination whether a
particular formulation reflects a belief that material or
purported material is child pornography. To be sure, it
may be difficult in some cases to determine whether these
clear requirements have been met. But courts and juries
every day pass upon knowledge, belief and intentthe

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21

Opinion of the Court

state of mens mindshaving before them no more than

evidence of their words and conduct, from which, in ordinary human experience, mental condition may be inferred. American Communications Assn. v. Douds, 339
U. S. 382, 411 (1950) (citing 2 J. Wigmore, Evidence 244,
256 et seq. (3d ed. 1940)). And they similarly pass every
day upon the reasonable import of a defendants statementswhether, for example, they fairly convey a false
representation, see, e.g., 18 U. S. C. 1621 (criminalizing
perjury), or a threat of physical injury, see, e.g., 115(a)(1)
(criminalizing threats to assault federal officials). Thus,
the Eleventh Circuits contention that 2252A(a)(3)(B)
gives law enforcement officials virtually unfettered discretion has no merit. No more here than in the case of
laws against fraud, conspiracy, or solicitation.
*
*
*
Child pornography harms and debases the most defenseless of our citizens. Both the State and Federal
Governments have sought to suppress it for many years,
only to find it proliferating through the new medium of the
Internet. This Court held unconstitutional Congresss
previous attempt to meet this new threat, and Congress
responded with a carefully crafted attempt to eliminate
the First Amendment problems we identified. As far as
the provision at issue in this case is concerned, that effort
was successful.
The judgment of the Eleventh Circuit is reversed.
It is so ordered.

Cite as: 553 U. S. ____ (2008)

STEVENS, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 06694
_________________

UNITED STATES, PETITIONER v. MICHAEL

WILLIAMS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[May 19, 2008]

JUSTICE STEVENS, with whom JUSTICE BREYER joins,

concurring.
My conclusion that this statutory provision is not facially unconstitutional is buttressed by two interrelated
considerations on which JUSTICE SCALIA finds it unnecessary to rely. First, I believe the result to be compelled by
the principle that every reasonable construction must be
resorted to, in order to save a statute from unconstitutionality, Hooper v. California, 155 U. S. 648, 657 (1895); see
also Edward J. DeBartolo Corp. v. Florida Gulf Coast
Building & Constr. Trades Council, 485 U. S. 568, 575
(1988) (collecting cases).
Second, to the extent the statutory text alone is unclear,
our duty to avoid constitutional objections makes it especially appropriate to look beyond the text in order to ascertain the intent of its drafters. It is abundantly clear from
the provisions legislative history that Congress aim was
to target materials advertised, promoted, presented, distributed, or solicited with a lascivious purposethat is,
with the intention of inciting sexual arousal. The provision was described throughout the deliberations in both
Houses of Congress as the pandering, or pandering and
solicitation provision, despite the fact that the term pandering appears nowhere in the statute. See, e.g., 149
Cong. Rec. 4227 (2003) ([T]he bill criminalizes the pan-

UNITED STATES v. WILLIAMS

STEVENS, J., concurring

dering of child pornography, creating a new crime to respond to the Supreme Courts recent ruling [in Ashcroft v.
Free Speech Coalition, 535 U. S. 234 (2002)] (statement of
Sen. Leahy, bills cosponsor)); H. R. Conf. Rep. No. 10866,
p. 61 (2003) ([The bill] includes a new pandering provision . . . that prohibits advertising, promoting, presenting,
distributing, or soliciting . . . child pornography (internal
quotation marks omitted)); S. Rep. No. 1082, p. 10 (2003)
(S. 151 creates three new offenses . . . . One prohibits
the pandering or solicitation of child pornography); id.,
at 16 ([T]he bill criminalizes the pandering of child
pornography).
The Oxford English Dictionary defines the verb pander, as to minister to the gratification of (anothers lust),
11 Oxford English Dictionary 129 (2d ed. 1989). And
Blacks Law Dictionary provides, as relevant, this definition of pandering: The act or offense of selling or distributing textual or visual material (such as magazines or
videotapes) openly advertised to appeal to the recipients
sexual interest. Blacks Law Dictionary 1142 (8th ed.
2004) (hereinafter Blacks).1 Consistent with these dictionary definitions, our cases have explained that pandering is the business of purveying textual or graphic
matter openly advertised to appeal to the erotic interest,
Ginzburg v. United States, 383 U. S. 463, 467, and n. 7
(1966) (quoting Roth v. United States, 354 U. S. 476, 495
496 (1957)).2

1 The first definition offered is The act or offense of recruiting a prostitute, finding a place of business for a prostitute, or soliciting customers for a prostitute. Blacks 1142.
2 As I have explained elsewhere, Ginzburg has long since lost its force
as law, see, e.g., FW/PBS, Inc. v. Dallas, 493 U. S. 215, 249 (1990)
(opinion concurring in part and dissenting in part) (Ginzburg was
decided before the Court extended First Amendment protection to
commercial speech and cannot withstand our decision in Virginia Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748
(1976)). Still, the cases explication of the meaning of pandering is

Cite as: 553 U. S. ____ (2008)

STEVENS, J., concurring

It was against this backdrop that Congress crafted the

provision we uphold today. Both this context and the
statements surrounding the provisions enactment convince me that in addition to the other limitations the
Court properly concludes constrain the reach of the statute, the heightened scienter requirements described ante,
at 910, contain an element of lasciviousness.
The dissent argues that the statute impermissibly undermines our First Amendment precedents insofar as it
covers proposals to transact in constitutionally protected
material. It is true that proof that a pornographic but not
obscene representation did not depict real children would
place that representation on the protected side of the line.
But any constitutional concerns that might arise on that
score are surely answered by the construction the Court
gives the statutes operative provisions; that is, proposing
a transaction in such material would not give rise to
criminal liability under the statute unless the defendant
actually believed, or intended to induce another to believe,
that the material in question depicted real children.
Accordingly, when material which is protected
particularly if it possesses serious literary, artistic, political, or scientific valueis advertised, promoted, presented, distributed, or solicited for some lawful and
nonlascivious purpose, such conduct is not captured by the
statutory prohibition. Cf. Miller v. California, 413 U. S.
15, 2425 (1973).

instructive.

Cite as: 553 U. S. ____ (2008)

SOUTER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 06694
_________________

UNITED STATES, PETITIONER v. MICHAEL

WILLIAMS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[May 19, 2008]

JUSTICE SOUTER, with whom JUSTICE GINSBURG joins,

dissenting.
Dealing in obscenity is penalized without violating the
First Amendment, but as a general matter pornography
lacks the harm to justify prohibiting it. If, however, a
photograph (to take the kind of image in this case) shows
an actual minor child as a pornographic subject, its transfer and even its possession may be made criminal. New
York v. Ferber, 458 U. S. 747, 765766 (1982); Osborne v.
Ohio, 495 U. S. 103, 110111 (1990). The exception to the
general rule rests not on the content of the picture but on
the need to foil the exploitation of child subjects, Ferber,
458 U. S., at 759760, and the justification limits the
exception: only pornographic photographs of actual children may be prohibited, see id., at 763, 764; Ashcroft v.
Free Speech Coalition, 535 U. S. 234, 249251 (2002).
Thus, just six years ago the Court struck down a statute
outlawing particular material merely represented to be
child pornography, but not necessarily depicting actual
children. Id., at 257258.
The Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today Act of 2003 (Act), 117 Stat.
650, was enacted in the wake of Free Speech Coalition.
The Act responds by avoiding any direct prohibition of

UNITED STATES v. WILLIAMS

SOUTER, J., dissenting

transactions in child pornography1 when no actual minors

may be pictured; instead, it prohibits proposals for transactions in pornography when a defendant manifestly
believes or would induce belief in a prospective party that
the subject of an exchange or exhibition is or will be an
actual child, not an impersonated, simulated or virtual
one, or the subject of a composite created from lawful
photos spliced together. The Act specifically prohibits
three types of those proposals. It outlaws solicitation of
child pornography, as well as two distinct kinds of offers:
those advertis[ing] or promot[ing] prosecutable child
pornography, which recommend the material with the
implication that the speaker can make it available, and
those present[ing] or distribut[ing] such child pornography, which make the material available to anyone who
chooses to take it. 18 U. S. C. 2252A(a)(3)(B) (2000 ed.,
Supp. V).
The Court holds it is constitutional to prohibit these
proposals, and up to a point I do not disagree. In particular, I accept the Courts explanation that Congress may
criminalize proposals unrelated to any extant image. I
part ways from the Court, however, on the regulation of
proposals made with regard to specific, existing representations. Under the new law, the elements of the pandering offense are the same, whether or not the images are of
real children. As to those that do not show real children,
of course, a transaction in the material could not be prosecuted consistently with the First Amendment, and I believe that maintaining the First Amendment protection of

1 I use child pornography to mean any pornographic representation

(such as a photograph, as in this case) that includes what appears to be
a child subject. True or real child pornography refers to images
made directly in pornographic settings with models who are minors;
fake refers to simulations, components of lawful photos spliced
together, or those made with adults looking young enough to be mistaken for minors.

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SOUTER, J., dissenting

expression we have previously held to cover fake child

pornography requires a limit to the laws criminalization
of pandering proposals. In failing to confront the tension
between ostensibly protecting the material pandered while
approving prosecution of the pandering of that same material, and in allowing the new pandering prohibition to
suppress otherwise protected speech, the Court undermines Ferber and Free Speech Coalition in both reasoning
and result. This is the significant element of todays
holding, and I respectfully dissent from it.
I
The easy case for applying the Act would be a proposal
to obtain or supply child pornography supposedly showing
a real child, when the solicitation or offer is unrelated to
any image (that is, when the existence of pornographic
material was merely purported). See ante, at 6 (The
statute does not require the actual existence of child pornography). A proposal speaking of a pornographic photograph of a child is (absent any disclaimer or qualification)
understood to mean a photo of an actual child; the reasonable assumption is that people desiring child pornography
are not looking for fake child pornography, so that those
who speak about it mean the real thing. Hence, someone
who seeks to obtain child pornography (having no specific
artifact in mind) solicits an unlawful transfer of contraband. 18 U. S. C. 2252A(3)(B). On the other side of that
sort of proposed transaction, someone with nothing to
supply or having only non-expressive matter who purports
to present, distribute, advertise, or promote child pornography also proposes an illegal transaction. In both cases,
the activity would amount to an offer to traffic in child
pornography that may be suppressed, and the First
Amendment does not categorically protect offers to engage
in illegal transactions. To the extent the speaker intended
to mislead others, a conviction would also square with the

UNITED STATES v. WILLIAMS

SOUTER, J., dissenting

unprotected status of fraud, see ante, at 13; and even a

non-fraudulent speaker who mistakenly believed he could
obtain the forbidden contraband to transfer to anyone who
accepted an offer could be validly convicted consistent with
the general rule of criminal law, that attempting to commit a crime is punishable even though the completed
crime might (or would) turn out to be impossible in fact,
see ante, at 1415.
The easy cases for constitutional application of the Act
are over, however, when one gets to proposals for transactions related to extant pornographic objects, like photos in
a dealers inventory, for example. These will in fact be the
common cases, as the legislative findings attest. See
501(1)(15), 117 Stat. 676678. Congress did not pass
the Act to catch unsuccessful solicitors or fraudulent
offerors with no photos to sell; rather, it feared that [t]he
mere prospect that the technology exists to create composite or computer-generated depictions that are indistinguishable from depictions of real children will allow defendants who possess images of real children to escape
prosecution . . . . This threatens to render child pornography laws that protect real children unenforceable. Id.,
501(13).
A person who knowingly proposes a transaction in an
extant image incorporates into the proposal an understanding that the subject of the proposal is or includes
that image. Cf. ante, at 14 ([Promotes] refers to the
recommendation of a particular piece of purported child
pornography . . .). Congress understood that underlying
most proposals there will be an image that shows a child,
and the proposal referring to an actual childs picture will
thus amount to a proposal to commit an independent
crime such as a transfer of child pornography, see 18
U. S. C. 2252A(a)(1), (2). But even when actual pictures
thus occasion proposals, the Act requires no finding that
an actual child be shown in the pornographic setting in

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SOUTER, J., dissenting

order to prove a violation. And the fair assumption (apparently made by Congress) is that in some instances, the
child pornography in question will be fake, with the picture showing only a simulation of a child, for example, or a
very young-looking adult convincingly passed off as a
child; in those cases the proposal is for a transaction that
could not itself be made criminal, because the absence of a
child model means that the image is constitutionally
protected. See Free Speech Coalition, 535 U. S., at 246.
But under the Act, that is irrelevant. What matters is not
the inclusion of an actual child in the image, or the validity of forbidding the transaction proposed; what counts is
simply the manifest belief or intent to cause a belief that a
true minor is shown in the pornographic depiction referred
to.
The tension with existing constitutional law is obvious.
Free Speech Coalition reaffirmed that non-obscene virtual
pornographic images are protected, because they fail to
trigger the concern for child safety that disentitles child
pornography to First Amendment protection. See id., at
249251. The case thus held that pictures without real
minors (but only simulations, or young-looking adults)
may not be the subject of a non-obscenity pornography
crime, id., at 246, 251, and it has reasonably been taken to
mean that transactions in pornographic pictures featuring
children may not be punished without proof of real children, see, e.g., United States v. Salcido, 506 F. 3d 729, 733
(CA9 2007) (per curiam) (In [Free Speech Coalition], the
Supreme Court held that possession of virtual child
pornography cannot constitute a criminal offense. . . . As a
result, the government has the burden of proving beyond a
reasonable doubt that the images were of actual children,
not computer-generated images); cf. Free Speech Coalition, supra, at 255 (The Government raises serious constitutional difficulties by seeking to impose on the defendant the burden of proving his speech is not unlawful).

UNITED STATES v. WILLIAMS

SOUTER, J., dissenting

The Act, however, punishes proposals regarding images

when the inclusion of actual children is not established by
the prosecution, as well as images that show no real children at all; and this, despite the fact that, under Free
Speech Coalition, the first proposed transfer could not be
punished without the very proof the Act is meant to dispense with, and the second could not be made criminal at
all.
II
What justification can there be for making independent
crimes of proposals to engage in transactions that may
include protected materials? The Court gives three answers, none of which comes to grips with the difficulty
raised by the question. The first, ante, at 1718, says it is
simply wrong to say that the Act makes it criminal to
propose a lawful transaction, since an element of the
forbidden proposal must express a belief or inducement to
believe that the subject of the proposed transaction shows
actual children. But this does not go to the point. The
objection is not that the Act criminalizes a proposal for a
transaction described as being in virtual (that is, protected) child pornography. The point is that some proposals made criminal, because they express a belief that they
refer to real child pornography, will relate to extant material that does not, or cannot be, demonstrated to show real
children and so may not be prohibited. When a proposal
covers existing photographs, the Act does not require that
the requisite belief (manifested or encouraged) in the
reality of the subjects be a correct belief. Prohibited proposals may relate to transactions in lawful, as well as
unlawful, pornography.
Much the same may be said about the Courts second
answer, that a proposal to commit a crime enjoys no
speech protection. Ante, at 11. For the reason just given,
that answer does not face up to the source of the difficulty:

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SOUTER, J., dissenting

the action actually contemplated in the proposal, the

transfer of the particular image, is not criminal if it turns
out that an actual child is not shown in the photograph. If
Ferber and Free Speech Coalition are good law, the facts
sufficient for conviction under the Act do not suffice to
show that the image (perhaps merely simulated), and thus
a transfer of that image, are outside the bounds of constitutional protection. For this reason, it is not enough just
to say that the First Amendment does not protect proposals to commit crimes. For that rule rests on the assumption that the proposal is actually to commit a crime, not to
do an act that may turn out to be no crime at all. Why
should the general rule of unprotected criminal proposals
cover a case like the proposal to transfer what may turn
out to be fake child pornography?
The Courts third answer analogizes the proposal to an
attempt to commit a crime, and relies on the rule of criminal law that an attempt is criminal even when some impediment makes it impossible to complete the criminal act
(the possible impediment here being the advanced age,
say, or simulated character of the child-figure). See ante,
at 1415. Although the actual transfer the speaker has in
mind may not turn out to be criminal, the argument goes,
the transfer intended by the speaker is criminal, because
the speaker believes2 that the contemplated transfer will

2 I leave largely aside the case of fraudulent proposals passing off

virtual pornography as the real thing. The fact that fraud is a separate
category of speech which independently lacks First Amendment protection changes the analysis with regard to such proposals, although it
does not necessarily dictate the conclusion. The Court has placed limits
on the policing of fraud when it cuts too far into other protected speech.
See, e.g., Riley v. National Federation of Blind of N. C., Inc., 487 U. S.
781, 787795 (1988) (invalidating professional fundraiser regulation
under strict scrutiny). Also relevant to the analysis would be that the
Act is hardly a consumer-protection statute; Congress seems to have
cared little for the interests of would-be child-pornography purchasers,
and the penalties for violating the Act are quite onerous compared with

UNITED STATES v. WILLIAMS

SOUTER, J., dissenting

be of real child pornography, and transfer of real child

pornography is criminal. The fact that the circumstances
are not as he believes them to be, because the material
does not depict actual minors, is no defense to his attempt
to engage in an unlawful transaction.
But invoking attempt doctrine to dispense with Free
Speech Coalitions real-child requirement in the circumstances of this case is incoherent with the Act, and it fails
to fit the paradigm of factual impossibility or qualify for
an extended version of that rule. The incoherence of the
Courts answer with the scheme of the Act appears from
2252A(b)(1) (2000 ed., Supp. V), which criminalizes attempting or conspiring to violate the Acts substantive
prohibitions, including the pandering provision of
2252A(a)(3)(B). Treating pandering itself as a species of
attempt would thus mean that there is a statutory, inchoate offense of attempting to attempt to commit a substantive child pornography crime. A metaphysician could
imagine a system like this, but the universe of inchoate
crimes is not expandable indefinitely under the actual
principles of criminal law, let alone when First Amendment protection is threatened. See 2 W. LaFave, Substantive Criminal Law 11.2(a), p. 208 (2d ed. 2003) ([W]here
a certain crime is actually defined in terms of either
doing or attempting a certain crime, then the argument
that there is no crime of attempting this attempt is
persuasive).
The more serious failure of the attempt analogy, however, is its unjustifiable extension of the classic factual

other consumer-protection laws. See Brief for American Booksellers

Foundation for Free Expression et al. as Amici Curiae 17, and n. 8
(identifying laws punishing fraud as a misdemeanor or with civil
penalties). A court could legitimately question whether the unprotected
status of fraud enables the Government to punish the transfer of
otherwise protected speech with penalties so apparently disproportionate to the harm that fraud is understood to cause.

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SOUTER, J., dissenting

frustration rule, under which the action specifically intended would be a criminal act if completed. The intending killer who mistakenly grabs the pistol loaded with
blanks would have committed homicide if bullets had been
in the gun; it was only the impossibility of completing the
very intended act of shooting bullets that prevented the
completion of the crime. This is not so, however, in the
proposed transaction in an identified pornographic image
without the showing of a real child; no matter what the
parties believe, and no matter how exactly a defendants
actions conform to his intended course of conduct in completing the transaction he has in mind, if there turns out
to be reasonable doubt that a real child was used to make
the photos, or none was, there could be, respectively, no
conviction and no crime. Thus, in the classic impossibility
example, there is attempt liability when the course of
conduct intended cannot be completed owing to some fact
which the defendant was mistaken about, and which
precludes completing the intended physical acts. But on
the Courts reasoning there would be attempt liability
even when the contemplated acts had been completed
exactly as intended, but no crime had been committed.
Why should attempt liability be recognized here (thus
making way for proposal liability, under the Courts
analogy)?
The Courts first response is to demur, with its example
of the drug dealer who sells something else. Ante, at 14.
(A package of baking powder, not powder cocaine, would
be an example.) No one doubts the dealer may validly be
convicted of an attempted drug sale even if he didnt know
it was baking powder he was selling. Yet selling baking
powder is no more criminal than selling virtual child
pornography.
This response does not suffice, however, because it
overlooks a difference between the lawfulness of selling
baking powder and the lawful character of virtual child

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SOUTER, J., dissenting

pornography. Powder sales are lawful but not constitutionally privileged. Any justification within the bounds of
rationality would suffice for limiting baking powder transactions, just as it would for regulating the discharge of
blanks from a pistol. Virtual pornography, however, has
been held to fall within the First Amendment speech
privilege, and thus is affirmatively protected, not merely
allowed as a matter of course. The question stands: why
should a proposal that may turn out to cover privileged
expression be subject to standard attempt liability?
The Courts next response deals with the privileged
character of the underlying material. It gives another
example of attempt that presumably could be made criminal, in the case of the mistaken spy, who passes national
security documents thinking they are classified and secret,
when in fact they have been declassified and made subject
to public inspection. Ante, at 18. Publishing unclassified
documents is subject to the First Amendment privilege
and can claim a value that fake child pornography cannot.
The Court assumes that the document publication may be
punished as an attempt to violate state-secret restrictions
(and I assume so too); then why not attempt-proposals
based on a mistaken belief that the underlying material is
real child pornography? As the Court looks at it, the
deterrent value that justifies prosecuting the mistaken spy
(like the mistaken drug dealer and the intending killer)
would presumably validate prosecuting those who make
proposals about fake child pornography. But it would not,
for there are significant differences between the cases
of security documents and pornography without real
children.
Where Government documents, blank cartridges, and
baking powder are involved, deterrence can be promoted
without compromising any other important policy, which
is not true of criminalizing mistaken child pornography
proposals. There are three dispositive differences. As for

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SOUTER, J., dissenting

the first, if the law can criminalize proposals for transactions in fake as well as true child pornography as if they
were like attempts to sell cocaine that turned out to be
baking powder, constitutional law will lose something
sufficiently important to have made it into multiple holdings of this Court, and that is the line between child pornography that may be suppressed and fake child pornography that falls within First Amendment protection. No
one can seriously assume that after todays decision the
Government will go on prosecuting defendants for selling
child pornography (requiring a showing that a real child is
pictured, under Free Speech Coalition, 535 U. S., at 249
251); it will prosecute for merely proposing a pornography
transaction manifesting or inducing the belief that a photo
is real child pornography, free of any need to demonstrate
that any extant underlying photo does show a real child.
If the Act can be enforced, it will function just as it was
meant to do, by merging the whole subject of child pornography into the offense of proposing a transaction, dispensing with the real-child element in the underlying subject.
And eliminating the need to prove a real child will be a
loss of some consequence. This is so not because there will
possibly be less pornography available owing to the
greater ease of prosecuting, but simply because there must
be a line between what the Government may suppress and
what it may not, and a segment of that line will be gone.
This Court went to great pains to draw it in Ferber and
Free Speech Coalition; it was worth drawing and it is
worth respecting now in facing the attempt to end-run
that line through the provisions of the Act.
The second reason for treating child pornography differently follows from the first. If the deluded drug dealer is
held liable for an attempt crime there is no risk of eliminating baking powder from trade in lawful commodities.
Likewise, if the mistaken spy is convicted of attempting to
disclose classified national security documents there will

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SOUTER, J., dissenting

be no worry that lawful speech will be suppressed as a

consequence; any unclassified documents in question can
be quoted in the newspaper, other unclassified documents
will circulate, and analysts of politics and foreign policy
will be able to rely on them. But if the Act can effectively
eliminate the real-child requirement when a proposal
relates to extant material, a class of protected speech will
disappear. True, what will be lost is short on merit, but
intrinsic value is not the reason for protecting unpopular
expression.
Finally, if the Act stands when applied to identifiable,
extant pornographic photographs, then in practical terms
Ferber and Free Speech Coalition fall. They are left as
empty as if the Court overruled them formally, and when
a case as well considered and as recently decided as Free
Speech Coalition is put aside (after a mere six years) there
ought to be a very good reason. Another pair of First
Amendment cases come to mind, compare Minersville
School Dist. v. Gobitis, 310 U. S. 586 (1940), with West
Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943). In
Barnette, the Court set out the reason for its abrupt turn
in overruling Gobitis after three years, 319 U. S., at 635
642, but here nothing is explained. Attempts with baking
powder and unclassified documents can be punished without damage to confidence in precedent; suppressing protected pornography cannot be.
These differences should be dispositive. Eliminating the
line between protected and unprotected speech, guaranteeing the suppression of a category of expression previously protected, and reducing recent and carefully considered First Amendment precedents to empty shells are
heavy prices, not to be paid without a substantial offset,
which is missing from this case. Hence, my answer that
there is no justification for saving the Acts attempt to get
around our holdings. We should hold that a transaction in
what turns out to be fake pornography is better under-

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13

SOUTER, J., dissenting

stood, not as an incomplete attempt to commit a crime, but

as a completed series of intended acts that simply do not
add up to a crime, owing to the privileged character of the
material the parties were in fact about to deal in.
The upshot is that there ought to be no absolute rule on
the relationship between attempt liability and a frustrating mistake. Not all attempts frustrated by mistake
should be punishable, and not all mistaken assumptions
that expressive material is unprotected should bar liability for attempts to commit a crime. The legitimacy of
attempt liability should turn on its consequences for protected expression and the law that protects it. When, as
here, a protected category of expression would inevitably
be suppressed and its First Amendment safeguard left
pointless, the Government has the burden to justify this
damage to free speech.
III
Untethering the power to suppress proposals about
extant pornography from any assessment of the likely
effects the proposals might have has an unsettling significance well beyond the subject of child pornography. For
the Court is going against the grain of pervasive First
Amendment doctrine that tolerates speech restriction not
on mere general tendencies of expression, or the private
understandings of speakers or listeners, but only after a
critical assessment of practical consequences. Thus, one of
the milestones of American political liberty is Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam), which is
seen as the culmination of a half centurys development
that began with Justice Holmess dissent in Abrams v.
United States, 250 U. S. 616 (1919). In place of the rule
that dominated the First World War sedition and espionage cases, allowing suppression of speech for its tendency
and the intent behind it, see Schenck v. United States, 249
U. S. 47, 52 (1919), Brandenburg insisted that

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SOUTER, J., dissenting

the constitutional guarantees of free speech and free

press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except
where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or
produce such action. 395 U. S., at 447.
See also G. Stone, Perilous Times: Free Speech in Wartime
522 (2004) ([E]xactly fifty years after Schenck, the Supreme Court finally and unambiguously embraced the
Holmes-Brandeis version of clear and present danger).
Brandenburg unmistakably insists that any limit on
speech be grounded in a realistic, factual assessment of
harm. This is a far cry from the Act before us now, which
rests criminal prosecution for proposing transactions in
expressive material on nothing more than a speakers
statement about the material itself, a statement that may
disclose no more than his own belief about the subjects
represented or his desire to foster belief in another. This
should weigh heavily in the overbreadth balance, because
First Amendment freedoms are most in danger when the
government seeks to control thought or to justify its laws
for that impermissible end. The right to think is the
beginning of freedom, and speech must be protected from
the government because speech is the beginning of
thought. Free Speech Coalition, 535 U. S., at 253. See
also Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, Inc., 515 U. S. 557, 579 (1995) (The very
idea that a noncommercial speech restriction be used to
produce thoughts and statements acceptable to some
groups or, indeed, all people, grates on the First Amendment, for it amounts to nothing less than a proposal to
limit speech in the service of orthodox expression. The
Speech Clause has no more certain antithesis).
IV
I said that I would not pay the price enacted by the Act

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15

SOUTER, J., dissenting

without a substantial justification, which I am at a loss to

find here. I have to assume that the Court sees some
grounding for the Act that I do not, however, and I suppose the holding can only be explained as an uncritical
acceptance of a claim made both to Congress and to this
Court. In each forum the Government argued that a jurys
appreciation of the mere possibility of simulated or virtual
child pornography will prevent convictions for the real
thing, by inevitably raising reasonable doubt about
whether actual children are shown. The Government
voices the fear that skeptical jurors will place traffic in
child pornography beyond effective prosecution unless it
can find some way to avoid the Ferber limitation, skirt
Free Speech Coalition, and allow prosecution whether
pornography shows actual children or not.
The claim needs to be taken with a grain of salt. There
has never been a time when some such concern could not
be raised. Long before the Act was passed, for example,
pornographic photos could be taken of models one day into
adulthood, and yet there is no indication that prosecution
has ever been crippled by the need to prove young-looking
models were underage.
Still, if I were convinced there was a real reason for the
Governments fear stemming from computer simulation, I
would be willing to reexamine Ferber. Conditions can
change, and if todays technology left no other effective
way to stop professional and amateur pornographers from
exploiting children there would be a fair claim that some
degree of expressive protection had to yield to protect the
children.
But the Government does not get a free pass whenever
it claims a worthy objective for curtailing speech, and I
have further doubts about the need claimed here. Although Congress found that child pornography defendants
almost universally rais[e] the defense that the alleged
child pornography could be simulated or virtual, 501(10),

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SOUTER, J., dissenting

117 Stat. 677, neither Congress nor this Court has been
given the citation to a single case in which a defendants
acquittal is reasonably attributable to that defense.3 See

3 During hearings prior to passage of the Act, the Department of Justice presented Congress with three examples of prosecutions purportedly frustrated by a virtual-child defense. See Hearing on H. R. 1104
and H. R. 1161 before the Subcommittee on Crime, Terrorism, and
Homeland Security of the House Committee on the Judiciary, 108th
Cong., 1st Sess., 9 (2003) (statement of Daniel P. Collins, Associate
Deputy Attorney General). In United States v. Bunnell, No. CRIM.02
13B5S, 2002 WL 927765 (D. Me., May 1, 2002), the court allowed
the defendant to withdraw his guilty plea after the Ashcroft v. Free
Speech Coalition, 535 U. S. 234 (2002), decision. The defendant did not,
however, present a virtual-child defense to a jury, nor was he acquitted;
indeed the court rejected his motion to dismiss, see Criminal Docket for
Case No. 1:02CR00013 (D. Me.). (The docket report also indicates that
the defendants trial was then continued during his prosecution in state
court, with the Government moving to dismiss upon receipt of a judgment and commitment from the state court. See ibid.)
In United States v. Reilly, No. 01 CR. 1114(RPP), 2002 WL 31307170
(SDNY, Oct. 15, 2002), the court also allowed a defendant to withdraw
a guilty plea after the issuance of Free Speech Coalition, because his
plea was founded on a belief that the Government need not prove the
involvement of actual children in the material at issue. (After the time
of the congressional hearings, the court dismissed the child pornography charges upon the Governments motion, and the defendant was
convicted on multiple counts of transportation of obscene material
under 18 U. S. C. 1462.
See Criminal Docket for Case No.
1:01CR01114 (SDNY).)
In United States v. Sims, 220 F. Supp. 2d 1222 (NM 2002), the defendant was convicted after a jury trial at which the Government contended, and the court agreed, that it did not bear the burden of proving
that the images at issue depicted actual minors. The Free Speech
Coalition decision came down soon afterward, and the defendant filed a
post-trial motion for acquittal. The trial court held that the Government did bear the burden of proof and had met it with regard to one
count but not with regard to another, upon which it had presented no
evidence of the use of actual children. The trial court acquitted the
defendant on the latter count, observing that [t]he government could
have taken a more cautionary approach and presented evidence to
prove the use of actual children, but it made the strategic decision not
to do so. 220 F. Supp. 2d, at 1227. The Government did not seek

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SOUTER, J., dissenting

Brief for Free Speech Coalition et al. as Amici Curiae 21

23; Brief for National Law Center for Children and Families et al. as Amici Curiae 1013. The Government thus
seems to be selling itself short; it appears to be highly
successful in convicting child pornographers, the overwhelming majority of whom plead guilty rather than try
their luck before a jury with a virtual-child defense.4 And

review of this ruling on appeal.

In short, all of the cases presented to Congress involved the shortterm transition on the burden-of-proof issue occasioned by the Free
Speech Coalition decision; none of them involved a jury or judges
acquittal of a defendant on the basis of a virtual-child defense.
Nor do the Governments amici identify other successful employments of a virtual-child defense. One amicus says that Free Speech
Coalition spawned serious prosecutorial problems, but the only example it gives of an acquittal is a defendants partial acquittal in an Ohio
bench trial under an Ohio statute, where the judge convicted the
defendant of counts involving images for which the prosecution presented expert testimony of the minors identity and acquitted him of
counts for which it did not. See Brief for National Law Center for
Children and Families et al. as Amici Curiae 11 (citing State v. Tooley,
No. 2004P0064, 2005Ohio6709, 2005 WL 3476649 (App., Dec. 16,
2005)). The State apparently did not cross-appeal the acquittals, but in
considering defendants appeal of his convictions, the Supreme Court of
Ohio held that his hearsay objection to the Governments expert was
irrelevant, because [Free Speech Coalition] did not impose a heightened evidentiary burden on the state to specifically identify the child or
to use expert testimony to prove that the image contains a real child.
114 Ohio St. 3d 366, 381, 2007Ohio3698, 872 N. E. 2d 894, 908
(2007). Rather, [t]he fact-finder in this case, the trial judge, was
capable of reviewing the evidence to determine whether the state met
its burden of showing that the images depicted real children. Id., at
382, 872 N. E. 2d, at 909. The case hardly bespeaks a prosecutorial
crisis.
4 According to the U. S. Department of Justice Bureau of Justice Statistics, in the 1,209 federal child pornography cases concluded in 2006,
95.1% of defendants were convicted. Bureau of Justice Statistics
Bulletin, Federal Prosecution of Child Sex Exploitation Offenders,
2006, p. 6 (Dec. 2007), online at http://www.ojp.usdoj.gov/bjs/pub/pdf/
fpcseo06.pdf (as visited May 8, 2008, and available in Clerk of Courts
case file). By comparison, of the 161 child pornography cases concluded

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SOUTER, J., dissenting

little seems to have changed since the time of Free Speech

Coalition, when the Court rejected an assertion of the
same interest. See 535 U. S., at 254255 ([T]he Government says that the possibility of producing images by
using computer imaging makes it very difficult for it to
prosecute those who produce pornography by using real
children. . . . The necessary solution, the argument runs, is
to prohibit both kinds of images. The argument, in essence, is that protected speech may be banned as a means
to ban unprotected speech. This analysis turns the First
Amendment upside down); id., at 259 (THOMAS, J., concurring in judgment) (At this time . . . the Government
asserts only that defendants raise such defenses, not that
they have done so successfully. In fact, the Government
points to no case in which a defendant has been acquitted
based on a computer-generated images defense).

in 1996, 96.9% of defendants were convicted. Ibid. Of the 2006 cases,

92.2% ended with a plea. Ibid. The 4.9% of defendants not convicted in
2006 was made up of 4.5% whose charges were dismissed, and only
0.4% who were not convicted at trial. Ibid.
Nor do the statistics suggest a crisis in the ability to prosecute. In
2,376 child pornography matters concluded by U. S. Attorneys in 2006,
58.5% of them were prosecuted, while 37.8% were declined for prosecution, and 3.7% were disposed by a U. S. magistrate. Id., at 2. By
comparison, the prosecution rate for all matters concluded by U. S.
Attorneys in 2006 was 59%. Ibid. Nor did weak evidence make up a
disproportionate part of declined prosecutions. Of the child pornography cases declined for prosecution, 24.3% presented problems of weak
or inadmissible evidence; 22.7% were declined for lack of evidence of
criminal intent; and in 18.7% the suspects were prosecuted on other
charges. Id., at 3. In comparison, weak or inadmissible evidence
accounted for 53% of declined prosecutions for sex abuse and 20.4% for
sex transportation, both sexual exploitation crimes which do not easily
admit of a virtual-child defense. Ibid.
None of these data, to be sure, isolates the experience between Free
Speech Coalition and the current Act, or breaks down the post-Act
numbers by reference to prosecution under the Act. If the generality of
the statistics is a problem, however, it is for the Government, which
makes the necessity claim.

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SOUTER, J., dissenting

Without some convincing evidence to the contrary,

experience tells us to have faith in the capacity of the jury
system, which I would have expected to operate in much
the following way, if the Act were not on the books. If the
Government sought to prosecute proposals about extant
images as attempts, it would seek to carry its burden of
showing that real children were depicted in the image
subject to the proposal simply by introducing the image
into evidence; if the figures in the picture looked like real
children, the Government would have made its prima facie
demonstration on that element.5 The defense might well
offer expert testimony to the effect that technology can
produce convincing simulations, but if this was the extent
of the testimony that came in, the cross-examination
would ask whether the witness could say that this particular, seemingly authentic representation was merely simulated. If the witness could say that (or said so on direct),
and survived further questioning about the basis for the
opinion and its truth, acquittal would have been proper;
the defendant would have raised reasonable doubt about
whether a child had been victimized (the same standard
that would govern if the defendant were on trial for abusing a child personally). But if the defense had no specific
evidence that the particular image failed to show actual
children, I am skeptical that a jury would have been likely
to entertain reasonable doubt that the image showed a
real child.
Perhaps I am wrong, but without some demonstration
that juries have been rendering exploitation of children
unpunishable, there is no excuse for cutting back on the
First Amendment and no alternative to finding over
5 The Courts of Appeals to consider the issue have declined to require
expert evidence to prove the authenticity of images, generally finding
the images themselves sufficient to prove the depiction of actual minors. See, e.g., United States v. Salcido, 506 F. 3d 729, 733734 (CA9
2007) (per curiam) (collecting cases).

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SOUTER, J., dissenting

breadth in this Act. I would hold it unconstitutional on

the authority of Ferber and Free Speech Coalition.