United States v. Williams

PETITIONER: United States
RESPONDENT: Michael Williams
LOCATION: Marion County Superior Court: Criminal Division

DOCKET NO.: 06-694
DECIDED BY: Roberts Court (2006-2009)
LOWER COURT: United States Court of Appeals for the Eleventh Circuit

CITATION: 553 US 285 (2008)
GRANTED: Mar 26, 2007
ARGUED: Oct 30, 2007
DECIDED: May 19, 2008

Paul D. Clement - on behalf of the Petitioner
Richard J. Diaz - on behalf of Respondent

Facts of the case

Michael Williams was convicted in federal district court of "pandering" (promoting) child pornography. The PROTECT Act proscribes the pandering of "any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe" that the material is illegal child pornography. The Act represents Congress's attempt to outlaw sexually explicit images of children - including both images of real children and computer-generated images of realistic virtual children. The Supreme Court struck down Congress's previous effort as overbroad in Ashcroft v. Free Speech Council, because the law as written could have outlawed artwork that was neither obscene nor child pornography. Williams argued that the PROTECT Act was similarly overbroad, but the district court held that the government can legitimately outlaw the pandering of material as child pornography, even if the material is not in fact child pornography.

The U.S. Court of Appeals for the Eleventh Circuit reversed the lower court and struck down the PROTECT Act as unconstitutionally overbroad. The Eleventh Circuit was unmoved by the government's argument that prosecuting the promotion of virtual child pornography as real is necessary to combat the child porn market. The Circuit Court held that the Act's prohibition was broad enough to include any "braggart, exaggerator, or outright liar" who claims in a non-commercial context to have child pornography but actually does not. Thus, the Act's pandering provision prohibited protected speech as well as actual child pornography.


Does the PROTECT Act abridge First Amendment freedom of speech by outlawing the pandering of material that is believed to be, or claimed to be, illegal child pornography?

Media for United States v. Williams

Audio Transcription for Oral Argument - October 30, 2007 in United States v. Williams

Audio Transcription for Opinion Announcement - May 19, 2008 in United States v. Williams

Antonin Scalia:

This case is here on writ of certiorari to United States Court of Appeals for the Eleventh Circuit.

Congress has sought in recent years to legislate against the increasing flow of child pornography, that is pornography using child subjects, although obscenity has no First Amendment protection, pornography does, the difference between the two, you know it when you see it.

The task of -- of controlling child pornography -- child pornography can be constitutionally proscribed, that is the use of children for production of pornographic material, but the task of -- of preventing it is difficult because modern imaging techniques make it almost impossible to prove that what appears on the screen is an actual child rather than a technological creation.

Four terms ago, in Ashcroft versus Free Speech Coalition, we held that the First Amendment was violated by a provision of the Child Pornography Protection Act of 1996 which criminalized the possession of material that had been pandered as child pornography, even if the material was not actually child pornography, we said that was unconstitutional.

In response, Congress enacted in 2003, a new statute that punishes, not the possession of child pornography, but the pandering or solicitation of material as child pornography, even if the material is not child pornography and indeed, even if no material exists at all.

In April 2004, respondent, Michael Williams, was arrested after he posted a link in an Internet chat room to pornographic images of young children.

He pleaded guilty to a violation of the new statute, but reserved the right to challenge its constitutionality.

The Eleventh Circuit reversed his conviction, finding that the statute was overbroad and impermissibly vague.

In an opinion filed with the clerk today, we reverse the judgment of the Eleventh Circuit.

We hold that the statute is neither overbroad nor permissibly -- impermissibly vague.

A statute is unconstitutionally, overbroad if it criminalizes a substantial amount of constitutionally protected activity.

The first step in overbreathe analysis is obviously to determine what it is that the statute proscribes, we can't determine whether it reaches a substantial amount of protected activity without first knowing what it covers.

The statute in this case punishes "any person who knowingly advertises, promotes, presents, distributes or solicits 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 child pornography."

Child pornography under the statute includes both illegally obscene images, obscenity can be proscribed even if it doesn’t involve children, whether real or virtual of children engaged in specified sexual conduct and it includes pornographic images of real children engaged in such conduct.

These categories precisely track the types of sexually explicit images that we have held are constitutionally proscribable.

Five additional features of the statute bear mention. First, the placement of the word "knowingly indicates the statute” and includes a scienter requirement for every element.

Second, the statute’s key verbs “advertises, promotes, presents, distributes or solicits” are reasonably read to have transactional connotations.

That is to say, the statute penalizes speech that accompanies or seeks to induce a transfer of child pornography from one person to another.

The transactions need not be commercial however and the transfer can be for free.

Third, the phrase "in a manner that reflects the belief" reflect -- requires both that a defendant have a subjective belief that the material is child pornography and that his statements or actions objectively convey that belief to the listener.

Fourth, the phrase "in a manner that is intended to cause another to believe" requires that a defendant subjectively intend to make the listener believe that the material is child pornography and – and last, the sexual conduct alleged to be depicted in the material must reach a high level of explicitness.

We conclude that the statute is not overbroad.

It criminalizes -- only offers to provide or requests to obtain child pornography.

That is to say, it punishes speech seeking to conclude illegal transactions.

Such speech -- such speech is categorically excluded from First Amendment protection.

The Eleventh Circuit believed that only commercial offers to engage in -- in illegal transactions are categorically excluded, but that is wrong.

Free distribution of contraband has no more social value than market exchanges of contraband.

The Eleventh Circuit further believed that the fact that no child pornography need exist to trigger the statute, rendered it unconstitutional.

But the fact that a defendant is mistaken about the contraband nature -- nature of what he seeks to distribute or what he seeks to acquire, does not immunize him from criminal punishment.

Factual impossibility is not a defense to inchoate crimes.