United States v. X-Citement Video, Inc.

PETITIONER:United States
RESPONDENT:X-Citement Video, Inc.
LOCATION:Georgia General Assembly

DOCKET NO.: 93-723
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 513 US 64 (1994)
ARGUED: Oct 05, 1994
DECIDED: Nov 29, 1994

Drew S. Days, III – Argued the cause for the United States
Stanley Fleishman – Argued the cause for the respondents

Facts of the case

The Protection of Children Against Sexual Exploitation Act of 1977 prohibited the interstate transportation, shipping, receipt, distribution, or reproduction of visual materials containing children engaged in sexually explicit acts. Richard Gottesman, owner and manager of X-Citement Video, sold forty-nine tapes to undercover officers. Gottesman shipped the videos, containing pornographic acts by industry legend Traci Lords before she turned eighteen, to Hawaii. Although he claimed he did not know the tapes contained underage pornographic acts, Gottesman was arrested for violating the sexual exploitation act.


Did the Act’s use of the term “knowingly” violate the First Amendment’s Free Speech clause by not mandating a showing that the alleged offender knew which materials contained under-age performances?

Media for United States v. X-Citement Video, Inc.

Audio Transcription for Oral Argument – October 05, 1994 in United States v. X-Citement Video, Inc.

Audio Transcription for Opinion Announcement – November 29, 1994 in United States v. X-Citement Video, Inc.

William H. Rehnquist:

I have the opinion of the Court to announce in United States versus X-Citement Video.

In this case the respondent X-Citement Video shipped videotapes depicting an underage pornography star to an undercover police officer.

They were convicted for violations of the Children Against Sexual Exploitation Act of 1977 which prohibits persons from knowingly transporting, shipping, receiving, distributing or reproducing any visual depiction.

If that visual depiction involves the use of a minor engaging in sexually explicit conduct.

The Court of Appeals for the Ninth Circuit reversed their convictions reasoning that the statute was facially unconstitutional because it did not require the defendant to know that the performer was a minor.

In an opinion filed with the clerk today we reverse the ruling of the Ninth circuit and hold that the term “knowingly” in the statute applies to the minority status of the performers.

The statute as constitute by the Court of Appeals allows prosecution of persons who handle a visual depiction.

Although they maybe completely unaware that the contents depict any short of pornography at all, we are certain that Congress do not intense such absurd results.

In reading the statute to avoid these results we recognize that our past decision had usually found a scienter requirements, scienter meaning “knowingly requirements” for all statutory elements that criminalize otherwise innocent conduct.

Even though, no such requirement appears on the face of the statute and the minority status of the performers in this statute is such an element.

Finally, we note that the statutes are to be read when fairly possible to avoid substantial constitutional doubts.

In the light of all these principles of fair reading of the text and history of the statute dictate that the statute requires knowledge of the performer’s minority status and therefore is not facially unconstitutional.

Justice Stevens has filed a concurring opinion.

Justice Scalia has filed a dissenting opinion in which he is joined by Justice Thomas.