Ashcroft v. Free Speech Coalition - Oral Argument

Argument of Paul D. Clement

Chief Justice Rehnquist: Mr. Clement.

Mr. Clement: Mr. Chief Justice and may it please the court: In 1996 Congress updated the child pornography laws to keep pace with technological developments.

Congress extended the existing prohibitions on visual depictions of actual children engaged in sexually explicit conduct to cover virtually indistinguishable images in material pandered as child pornography.

These provisions are constitutional for the same basic reason that other laws prohibiting child pornography have been upheld.

They protect real children from real abuse.

They do so in two important ways.

First, by preventing the publication and production of materials that are as effective as traditional child pornography in seducing children, and second, by allowing the government to effectively prosecute cases involving traditional forms of child pornography.

First, these provisions allow the government to attack material that poses the same risk of enticing children into illicit sexual activities and to pose for child pornography as traditional child pornography.

The government has a clear and compelling interest in targeting such material; indeed, this court in Osborne against Ohio used that rationale to uphold Ohio's prohibition on the possession of child pornography.

Second and equally important, the government has a clear interest in promoting the effective prosecution of the traditional laws against traditional forms of child pornography.

The advent and increasing availability of computer technology has allowed individuals to generate computer images that are virtually indistinguishable from traditional photographs.

This allows criminal defendants to inject reasonable doubt arguments into virtually every case.

Justice Souter: Has any case, to your knowledge, been lost on that ground in which that was a substantial argument?

Mr. Clement: No case has been lost on that ground but that is largely a result of the 1996 Act, which has taken that argument away from criminal defendants.

And to give you one very specific example, the case that the Fifth Circuit heard in the Fox case, United States against Fox which is one of the cases where the lower courts upheld this law in an as applied context, the government's expert witness, Special Agent Barkhausen was forced on cross-examination to admit that she could not tell definitively whether or not the image was of a real child.

Now that concession prior to the 1996 Act would likely have been fatal to the government's prosecution.

Justice Stevens: Was that because she couldn't tell whether the real child was over 18 or under 18 or because she couldn't tell whether it was a real person?

Mr. Clement: That case was because she couldn't tell it was a real person.

Justice Stevens: Wouldn't she have the same difficulty on the distinction between an 18-year-old and a 19-year-old?

Mr. Clement: In the cases where the line that the courts are concerned with is the line between 18 and 19, there's an additional aspect of the statute that clears up many of the problems and that's the affirmative defense which allows individuals to produce and distribute materials if they make clear they involve actual individuals who are over 18.

Justice Ginsburg: But in terms of what you outlined, in terms of the two dangers, you say just the same as if it were an actual child.

Well, if it's a very young adult who looks like a child, it seems to me everything that you said about the virtual pornography would apply to a young adult who looks like a child.

Mr. Clement: That's certainly true, but I think Congress in recognizing an affirmative defense for materials that were produced using people who had reached the age of majority struck a balance and recognized that this Court has provided additional protection to pornographic depictions involving actual adults.

Justice Souter: Okay, well the question of the balance raises the question of tailoring, and what I wanted to ask you was if it's appropriate to have the affirmative defense that the children or that the people depicted were in fact over 18, why isn't it equally appropriate to have an affirmative defense to the effect that the depiction does not have anyone who is not a real child under 18.

In other words, if the government's interests are protected by the affirmative defense in the real child case, why shouldn't there be a comparable affirmative defense for the simulation.

Mr. Clement: I think there are at least two reasons for that differential treatment.

One is with respect to age that's a fact that's uniquely verifiable and in a lot of contexts we recognize that somebody's age is something that one can verify.

And in fact what we're really talking about in most of these cases where the affirmative defense for age would be implicated are films and the like where there would be witnesses who could testify that somebody was of a particular age on a particular date.

Justice Souter: But in effect you're depending on the witness to say that the actors here were in fact over 18.

Maybe they'll produce facsimiles of birth certificates or maybe they'll produce children or whatnot.

Why can't you have the same evidence to the effect that there were no real children being used in manufacturing the film?

You're depending on witnesses in each case.

Mr. Clement: Well, in most of the cases when you're talking about somebody who's going to make the claim that they actually generated the photographs themselves, there will be no witnesses.

But I think more important than the presence or absence of witnesses is--

Justice Souter: But that's a question of proof and I suppose that if the only person who steps up to the stand and says, there were no live children here, is the person who was accused of the pornography, that person may have something to worry about in not having a very convincing affirmative defense.

But that's the defendant's problem, not the government's problem.

And so I don't think that answers the question, why if the government is sufficiently protected with the affirmative defense in the one class of cases it wouldn't be in the other.

Mr. Clement: --And I do think that age rather than whether an image is computerally generated is something that is uniquely subject to verification and this Court in its Ferber decision confronted the argument that the New York statute was overbroad because it didn't limit its protections to photographs and images that were produced in the state of New York.

And the court rejected that overbreadth argument for two reasons; one, that it would be virtually impossible for anybody to prove what was the state of origin for the photo.

And I think the same analysis applies for a computer generated image.

The second reason, of course, was that even materials--

Justice Stevens: Why is it... why is it that witnesses can explain the age but cannot explain whether it was computer generated?

Mr. Clement: --Because, again, in sort of the stylized case that the person who's computer generated an image, that's not something that requires a film crew to be brought in so there aren't necessarily going to be witnesses.

In the case--

Justice Souter: But that's not the government's problem.

I mean, that may be the problem of the person who has the burden of proof to carry on the affirmative defense and if it is a problem then the government is the... in effect going to be the winning party in resolving that problem, but like Justice Stevens, I don't see what is essentially unique in the probative process to acclaim that it was a computer generation rather than a claim that the kid shown was over 18.

Mr. Clement: --Well, I'm not sure it's absolutely unique but I do think age is uniquely subject to verification.

And if I could get to the second reason that this Court pointed out in Ferber why you didn't need to have a limitation just to pictures generated in the State of New York, the Court recognized in footnote 19 that those materials, even if produced outside the State of New York, pose harms and potential risk to children inside the State of New York.

Justice O'Connor: Mr. Clement, may I ask you a question again relating to the affirmative defenses or youthful adult pornography.

There appears to be no affirmative defense for possession of something that in fact used adults, is that right?

Mr. Clement: That's right as a matter of the statute.

There's no express affirmative defense for possession.

Justice O'Connor: Well, let's relate that to something that perhaps a number of people in this courtroom have seen.

The film, Traffic, which depicts I guess someone who purports to be under 18 engaged in conduct that would fit under the definition of the statute to be banned, right.

Mr. Clement: I believe that's true.

Justice O'Connor: Did you see it?

Mr. Clement: I did see it.

[Laughter]

Justice O'Connor: Okay.

So presumably it would be covered.

Now, there is no defense to someone who rents the movie, they possess it, no affirmative defense.

Mr. Clement: There's no affirmative defense for possession but I think what the statute does is it effectively makes it so that in virtually, in the vast majority of cases where the producers and distributors of a film will be able to claim the affirmative defense, the individual possessor will be able to claim the affirmative defense because of a failure of the government's ability to prove scienter, because if you think about the affirmative defense it gives people the ability to distribute a movie if it involves actors.

But if they have the right to distribute a movie that nobody can lawfully possess, it doesn't give them much, that's not much comfort to them.

Justice Breyer: I don't understand.

I mean I buy at the video store three films, Traffic, Lolita, and Titanic.

Each film has a scene of simulated sexual behavior by 17-year-olds, all right?

I think that was the question.

The question is, why am I not guilty under your interpretation of the statute of a federal crime for possessing those three films?

Mr. Clement: There's two reasons.

One is precisely in order to deal with this anomaly that they don't want to be producing a film that nobody can lawfully possess, the affirmative defense gives an incentive to producers and distributors to make it clear in the marketing of the material that those scenes that you're talking about were scenes that were produced using adults or scenes used with body doubles, and so in that sense through the marketing of the material they can make it clear to people that it involved adults.

Justice O'Connor: There is the defense for the producer, but there isn't for the person who rents the film.

It's just I--

Mr. Clement: Exactly.

Justice O'Connor: --I'm struck by what we're supposed to do with a statute like this.

Mr. Clement: There is a requirement, though, that the government prove scienter with respect to age in any prosecution for possession and I don't see how the government could prove scienter as to age in the case of these films where they're marketed in a way where it's clear that they involve adult actors.

There's a second aspect in which this Court could find the affirmative defense to cover individuals and that... individual possessors, and that is the statute does give an affirmative defense for receipt and as the government argued in its briefs that naturally would cover possession incident to receipt.

What it doesn't cover, though, and why I think Congress didn't have a blanket affirmative defense for possession is it doesn't apply to somebody who receives some material that's marketed in a way or has a disclaimer that makes it clear that it involves adult actors, but then the individual somehow modifies it, strips out the disclaimer.

In that case, the possession is covered by the statute and I think rightly so.

Justice Stevens: Does it trouble you at all that the statute would prohibit a motion picture company from employing an 18-year-old actress to play the three roles that Justice Breyer identified?

Mr. Clement: Well, it would trouble me if the statute had that effect but it doesn't have that effect.

The affirmative defense makes it crystal clear.

Justice Stevens: Even though the actress is under the statutory age, 18?

Mr. Clement: Oh, I'm sorry, I thought you said 18.

Justice Stevens: Would it trouble you that the statute would prohibit an 18-year-old who is a child under the statute from performing those three roles?

Mr. Clement: Well, I think it's 17, but in any event it doesn't trouble me if it's a 17-year-old is prohibited because they wouldn't be prohibited from playing those roles if... the studio would have two options.

They could either not include the sexually explicit conduct which is all that's covered by the statute, and I think it would be possible to have made the film Traffic without involving simulated sexual activity.

But putting that to the side, the other option is to use a body double and make it clear in the marketing of the film that that's precisely what you've done.

Justice Breyer: I take it your answer to the question if this afternoon I go out, go to the video store, buy the three films and bring them home is, yes, I am guilty of a federal crime.

Mr. Clement: Not at all.

You could not be guilty because the government could not prove scienter and because you would have lawful--

Justice Breyer: What do you mean you can't prove scienter?

It says that it is a crime to buy, to possess a film that has simulated sexual activity by persons who appear to be under the age of 18.

Well, I would tell you right now, I think that film did contain simulated sexual activity by persons who appeared to be under the age of 18.

Mr. Clement: --And again--

Justice Breyer: I don't think it was real activity, I think it was simulated, and I think they did appear to me to be under the age of 18.

So am I guilty or not?

Mr. Clement: --You are not guilty for the two reasons that I've said and let me just say that you would have the same problem with respect to the statute at issue in Ferber.

Justice Scalia: Mr. Clement, I'm not sure what simulated sexual activity consists of.

I didn't see any of these movies.

[Laughter]

Justice Breyer: They were pretty good actually.

[Laughter]

Justice Scalia: One described in the briefs supposedly was the shot of a juvenile, whether played by a juvenile or not, from the waist up supposedly engaged in sexual activity.

Would you consider that to be covered by the statute as sexually explicit conduct?

I mean what if it was just the hand?

Mr. Clement: Well, certainly if it was just the hand and certainly... I think there would be certainly a number of ways--

Justice Scalia: Don't you think, I mean the definition of sexually explicit conduct is and what the statute prohibits is this conduct by minors under 17 or younger, sexual intercourse, engaging in sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse or lascivious exhibition of the genitals or pubic area.

Now, the government has not made the argument that at least as applied to juveniles this is unprotected speech anyway and consists of obscenity which a state or federal government is free, if it wishes, to prohibit?

Mr. Clement: --To the contrary, the government has argued throughout this case that it's all unprotected speech because it's child pornography.

And I think--

Justice Ginsburg: Not because it's obscenity, you're creating, you would have us create yet another category of prohibitive, something that falls totally outside the first amendment.

Have you claimed, as Justice Scalia suggested you might have, that at least some of this material is obscene and therefore covered without regard to any new, any child pornography catalog... category.

Mr. Clement: --Well, I want to be clear, I think government would take the position that virtually all the material covered by this statute is independently obscene, but that's not how the government chose to regulate it.

Justice Stevens: If the scene of a head of a person who the other information in the movie makes it appear they're engaged in sexual intercourse and all that is seen is the head of a male and a female kissing one another, that would come covered by the statute.

Mr. Clement: No, I don't think that would be covered by the statute.

Justice Stevens: Why not?

It's simulated sexual intercourse.

Mr. Clement: I think you have to read the term simulated sexual intercourse in conjunction with the other terms in the statute.

Justice Stevens: It expressly says there's no patently offensive requirement.

Mr. Clement: That's certainly true but I think if you read the statute in context, I think there's some requirement that the sexual intercourse that would be depicted would require some display of nudity in the process.

Certainly... well, it doesn't... it may not say that and the statute itself may not address that case.

And I would suggest that the proper way to resolve that case is in an as applied challenge.

Wait for the government to bring that prosecution.

In fact, I think the government won't bring that prosecution.

I mean, it's interesting to talk about the film version of Lolita and the like but that involves just a tiny fraction of materials covered by this statute, and if you want to bet--

Chief Justice Rehnquist: Ferber pretty much said that child pornography is of almost no value, did it not?

Mr. Clement: --Absolutely, and that's why this material that we're talking about is all probably virtually, the government could capture it as obscenity but of course if it tried to do that it couldn't ban the possession, and child pornography was treated as a different case in Ferber.

Chief Justice Rehnquist: Child pornography is a different case but very much like obscenity.

Mr. Clement: Absolutely, like obscenity, what this Court said in Ferber is the reason the statute was permissible is because it defined a category of conduct that could be proscribed and was outside the protection of the First Amendment.

Justice Ginsburg: There's a vast difference between an actual child who was violated and a picture, a simulation in Ferber that you have relied on so heavily, what do you make of a sentence that is not in the footnote, it is the text, that simulation outside the prohibition and the prohibition was using an actual child, simulation outside the prohibition could provide an alternative?

Mr. Clement: Well, let me just clarify one thing because the statute in Ferber itself also covered simulated sexual activity so all these line drawing problems about what, you know, at what point does the scene in Traffic come under the coverage of the statute also applied in Ferber because it also captured simulated acts involving adults.

So the only difference between the coverage of this statute and Ferber is that this statute does attempt to prohibit materials that do not involve actual individuals but are virtually indistinguishable from--

Justice Ginsburg: Yes, but even that sentence in Ferber said we're not touching in this case, here we have an actual child simulation outside that prohibition could provide an alternative.

Mr. Clement: --With respect, I don't think that's what Ferber meant to say.

I mean, Ferber, after all, was decided in 1982.

Justice Ginsburg: It used those words.

It used those words.

Mr. Clement: It did, but it was decided in 1982 before this technology even existed.

And interestingly, if you look at footnote 20 in the Ferber opinion the Court went out of its way to invoke the general doctrine that you don't apply cases before they arise and you don't adopt a rationale any broader than necessary to decide the case before it.

And it just seems to me--

Justice Ginsburg: What if we read that sentence as though it were not there?

Mr. Clement: --No I think you read it in the context--

Justice Ginsburg: Not in the opinion.

Mr. Clement: --with respect, I think you treat it in the context of what was prohibited by the New York statute and the technology that was available at the time.

And I think what's important here is any avenues for speech that were left open in Ferber are left open by the statute in conjunction with the affirmative defense.

The only materials that are covered by the statute and not covered by Ferber are materials that didn't exist at the time of Ferber and it seems to me that Congress is entitled to update the tech... the pornography and obscenity laws to deal with technological developments.

The first federal obscenity statute in 1842 didn't cover photographs because the technology wasn't in widespread use at the time.

Subsequently Congress added photographs to the cover to the obscenity statutes because technology developed and new problems arose.

Justice O'Connor: The Court relied very heavily on the notion that if you use actual children they are harmed, they are actually harmed, so what is the primary reliance that you make for applying the same prohibition to these video images?

Mr. Clement: Well I think there's... I would make two responses.

First, I think this Court has never strictly limited itself to the protection of the child depicted in the image and it recognizes that legislatures in Congress have an interest in protecting all children but secondly--

Justice O'Connor: It did seem to me that the Court, and I was here, played heavy reliance on harm to children.

Mr. Clement: --Absolutely.

Justice O'Connor: Actual children.

So I'm asking you what is your primary reliance when you don't have that?

Mr. Clement: Well, I don't know that we have to answer that question in this case because we do have that, because this statute enables the government to continue to prosecute effectively cases involving traditional forms of child pornography, because the advent--

Justice Kennedy: But that's not an answer to Justice O'Connor's question.

Basically we're talking here about overbreadth and the government's argument seems to be that since there is a class of materials that we can proscribe, the fact that it's overly broad is the respondent's problem.

But the law works the other way around, you have to show that this statute is precise as to its coverage and that it covers no more and let's just for argument's sake, although I don't think that's the law, concede not substantially more than what can be prohibited.

And Justice O'Connor's question was directed to this latter problem and it seems to me you're not answering the question.

Mr. Clement: --Well, I'm trying to and I think that, I mean, first of all, even in an overbreadth challenge the burden does lie on the party challenging the statute and they have to show things from actual fact in order to challenge the statute and I don't think they've carried that burden.

Second, this statute is responsive to the problem of protecting both the children depicted in the image and all children who can be seduced or enticed into this kind of activity can be depicted themselves.

Justice Kennedy: But the gravamen of her question, Justice O'Connor can explain her own question, but as I understood it, is that there's a substantial area here where adults who are play acting roles of children are covered, and the question is what is the government's interest in that?

Mr. Clement: There isn't an interest in those play acting cases and that's why the affirmative defense allows those to take place.

But again, the question is as you indicated substantial overbreadth and these questions we're talking about, about Traffic and the film version of Lolita really are a tiny fraction of the cases covered by the statute.

Justice Breyer: Why is it that the question I really would like you to get to if you can is one that's really bothering me very much is the question that Justice Scalia asked and the thing in this area I do not understand, in the entire area is why doesn't Miller work?

There is obviously a set of materials which Justice Stewart used to refer to as I know it when I see it and that material does not have at its object communication.

It has at its object a certain activity which is not communication.

Now that's all over our society, and why, given this Court's decision in Miller, is that so?

And if I knew the answer to that question I would be better able to deal with this kind of case.

Mr. Clement: Well, let me first try to say two reasons why I don't think Miller is directly relevant and if those aren't responsive to your questions, maybe--

Justice Breyer: I'd rather not hear why it's directly... not directly relevant because my question, which is my own problem, not your problem, is I'm trying to understand the area.

There are several cases in this area coming up, this is not the only one, and I want to know from the government why it is, you've read in this area, maybe you just should direct me to an article.

The problem I personally am having as a judge is I think what Justice Scalia was driving at, maybe, that's his question, is why doesn't Miller work.

Now maybe you'll tell me that it does, but that's contrary to my experience because it seems to me I see much material that would have flunked Justice Stewart's test all over the place.

And it seems to me that that's the material that parents are worried about their children getting a hold of.

Now, if I knew why Miller was insufficient to deal with that problem I would know better how to deal with this kind of a case.

Mr. Clement: --Well, one reason that Miller is a difficult case and doesn't... isn't terribly satisfying is it requires a case by case adjudication of that three-prong test which I would say with deference is not self-defining.

And what Congress decided to do in this context is follow the lead of Ferber where it said that Miller wasn't the test of child pornography and defined a much clearer class of material that whether or not it applies in Miller, whether or not the work as a whole is implicated, this is a definable class of material that is outside the protection of the First Amendment.

If you have concerns about the Miller test then you really should seize upon this statute and Ferber and the analysis in Osborne as one way to deal with that problem because here's a test that doesn't rely on community standards or other difficult considerations to apply in practice.

It has a test that says when we're talking about visual depictions only, we're not talking about novels here, and we're talking about material that depicts children engaged in sexually explicit conduct then we don't have to look to the value of the work as a whole.

You can put all the Shakespeare around these visual depictions you'd like and they're still visual depictions of children engaged in sexually explicit conduct.

Justice Ginsburg: Mr. Clement, before you finish there's something of great concern to me too because it seems that this is a big step away from actual child, injury to an actual child to the effect on the viewer and the same thing could be said for women with respect to pornography, portraying women in a degrading way.

The same thing could be said for hate speech.

So this, where there is no actual child victim, where it's a picture and you're talking about the effect of that on the viewer, why isn't it the same for all these other things that can have a very bad effect on the viewer?

Mr. Clement: Well, I think there are two principal reasons why you shouldn't be worried about that particular slippery slope.

One is this Court already put one foot down that slope in Osborne when it relied on the seduction rationale in conjunction with the concern for the children who were depicted.

And in the same way this statute responds both to harm, potential harm, to other children in the seduction rationale and to children actually depicted because as a matter of practical reality it's become very difficult for the government to prosecute cases involving actual, traditional child pornography.

Justice Ginsburg: If you have this out you can use simulated children, that will protect the actual children from being exploited.

Why can't you say one as much as the other?

Mr. Clement: Because I think, as I indicated before, there are real verifiability problems that don't arise in the context of age that do arise in computer.

The second reason, though, I think that you have to be less worried about the slippery slope in this context is the government has consistently gone to the courts and told them to interpret appears to be to cover images that are virtually indistinguishable from traditional child pornography.

It doesn't seem to put this Court on a slippery slope to say that material that is virtually indistinguishable from material that's already been held to be outside the protection of the First Amendment also will be outside the protection of the First Amendment.

Justice Stevens: Are you asking us to read that phrase into the statute, the virtually indistinguishable phrase?

Mr. Clement: Well, the virtually indistinguishable phrase already appears in the text of the statute, it just doesn't appear in the operative provision.

So what we're asking you to do is to read that term, appears to be, in light of the legislative finding, where it's not just the legislative finding where it's virtually indistinguishable.

Justice Stevens: You're asking us to construe the statute narrowly to apply only to things that are virtually indistinguishable from actual behavior, it would eliminate cartoons and that sort of stuff?

Mr. Clement: That's absolutely right and that's the position we've taken in all the lower courts.

Justice O'Connor: Even the language that says conveys the impression, you want us to give the same meaning to that?

Mr. Clement: Well, I actually think that the conveys the impression language could be given that meaning but I think the conveys the impression language is much less problematic from a constitutional standpoint if you understand subsection D of the statute to be addressed to pandering and in that context the concerns about vagueness are much reduced because you're not going to be focused on just the image, you're going to be focused on the way it's marketed, and I think in that context it won't be difficult to see whether or not it conveys the image.

I'd like to reserve the remainder of my time for rebuttal.

Argument of H. Louis Sirkin

Chief Justice Rehnquist: Very well, Mr. Clement.

Mr. Sirkin, we'll hear from you.

Mr. Sirkin: Mr. Chief Justice and may it please the Court: The petitioner's argument if adopted would have three radical tragic consequences for First Amendment jurisprudence.

First in the name of protecting children all visual messages of adolescent sexuality will be forever barred regardless of their scientific, artistic or educational value.

Second, countless visual depictions--

Justice Scalia: Excuse me, such as what?

Such as what?

You know, I try to think what great works of art would be taken away from us if we were unable to show minors copulating or any of the other acts set forth in the definition here.

Can you give me a couple of examples?

Mr. Sirkin: --Certainly, in the film area.

Justice Scalia: Lolita?

Mr. Sirkin: Lolita, Traffic.

Justice Scalia: That would be a great... leaving the book, the movie Lolita, the book is perfectly okay, right?

This only applies to the movie?

Mr. Sirkin: That's correct.

Justice Scalia: The great work of western art.

Mr. Sirkin: It's gotten critical acclaim.

The movie Traffic, I think, won an Academy Award.

There's the movie Tin Drum.

Justice Scalia: What else besides the movie Lolita would we be deprived of in order to prevent little children from being exploited?

Mr. Sirkin: There's the movie Traffic, there's the movie Tin Drum, there's a whole bunch of, you know, there's the Brooke Shields movies that maybe some people don't enjoy, but again it's there, the Blue Lagoon and the series of movies such as that.

Justice Scalia: In respect, this is not, you know, the Mona Lisa or Venus de Milo or anything that has lasted more than 30 years.

Mr. Sirkin: It could very well affect, I think, painters because the statute... excuse me.

Justice Stevens: How about Romeo and Juliet?

It interprets one scene there that way.

Mr. Sirkin: It could, if the movie... a movie of Romeo and Juliet were made.

Justice Scalia: Gee, you've seen a different version of that play than I have.

[Laughter]

Mr. Sirkin: Well, it depends on how they wanted to portray it.

I think they would have to be prevented from showing or simulated sexual activity because if they are in fact, you know, to be considered to be underage.

And secondly, countless visual depictions of adult sexuality will be prohibited where the adults depicted appear to some unknown censor to be younger than 18.

And third, it would open the door to banning other forms of expression simply because the expression could be misused and/or abused by a small segment of society.

Justice Breyer: Very well, how should it be read?

How would you write the statute so that it did take Justice Stewart's material that flunks.

Mr. Sirkin: One is, I think, enforcement of the obscenity laws would be one way.

Justice Breyer: Apparently that doesn't work and that's why I'm puzzled.

And where children, where you're depicting children engaged in this activity, let's say that flunks the Algerian seaman test or whatever it was he used to have.

Mr. Sirkin: Your honor, there's--

Justice Breyer: How is Congress to write a statute in the area of children that gets at that problem, which is a problem?

Mr. Sirkin: --I believe that Title 18, section 2251 covers that problem.

In the past there have been numerous prosecutions, I think, prior to the passages of this Act.

In 1995 a member of the Department of Justice testified before the Senate committee that heard evidence about this statute and indicated that there had been a conviction rate of over 97 percent in cases that had been brought against people for the possession or dissemination of material containing a depiction of a minor.

So that in fact has not been a problem in the past and apparently in this all in umbrella statute where they used any visual depiction, which in fact if you use the terminology any visual depiction it's not just limited to virtually indistinguishable--

Chief Justice Rehnquist: You have no problem then with the statute before it was amended.

Mr. Sirkin: --I have no problem, this is a new statute, 2251 and 2252 did exist.

Chief Justice Rehnquist: What did it do?

How did it change the law?

Mr. Sirkin: It used the terminology, it created a category of computer images that would be nonreal or other pictures or images that are nonreal and that are fictional characters into the act and it would be prohibited if disseminated or possessed.

Chief Justice Rehnquist: So, well, whatever was going to be threatened in the way of free expression and so forth under the new act was simply computer images of things that were already prohibited if done by real people?

Mr. Sirkin: No it did not, it included, it said any visual depiction, that would include that could be considered cartoons, illustrations, drawings, paintings.

Chief Justice Rehnquist: If the statute is construed to be, say, virtually indistinguishable then I think cartoons would not be covered.

Mr. Sirkin: But the problem is it would still suffer from the vagueness because what would happen is that in fact I had a computer image of a fictional character I'd never have a defense because I could not come forward and prove that that fictional character was over 18.

So if someone believed--

Chief Justice Rehnquist: That seems way out at the fringes somewhat.

Mr. Sirkin: --Well but that leaves it to the discretion.

It may be that the current administration may not enforce this language but down the road nobody knows what will happen.

Chief Justice Rehnquist: You could cross that bridge when you come to it then.

Mr. Sirkin: Well, I believe when you begin to talk about First Amendment rights to put it on to a case by case basis I think you are abridging, you know, a fundamental right and I think that in addition to that you have the problem that if I get charged you're not just being charged with a violation of an obscenity law, you're being accused of being a child pornographer and that does have some connotation and that has some ill effects just from the fact of being charged.

And I would have no defense.

Justice O'Connor: Well, does it cover things beyond obscene speech?

Mr. Sirkin: Well--

Justice O'Connor: In your view.

Mr. Sirkin: --In this it does, it would cover, you know, the morphing situation--

Justice O'Connor: Excuse me?

Mr. Sirkin: --I'm using the term morphing where you use an identifiable and you can merge it in on the computer to, you know, into similar--

Justice O'Connor: Images of obscenity.

Mr. Sirkin: --That's correct, or of a sexual act--

Justice O'Connor: That is the expansion, is covering images of obscenity.

Mr. Sirkin: --Well, it would be images, it would be copying images of obscenity with an identifiable individual or in sexual conduct and that is harm to a real child because that person is an identifiable child and that becomes a permanent record.

Justice O'Connor: But does it cover depictions of something more than obscenity?

Mr. Sirkin: Well, when you use the terminology simulated sexual activity it would, you know, it depends, I guess that goes community to community.

But what you have is like in the movie Trafficking where you have a young lady under a cover with a man on top of her, you only see their heads but, you know, the simulated means the appearance of, and that in fact does give the appearance and, you know, in that situation it is a representation in the movie that that person is under the age of 18--

Justice Scalia: Don't you think the statute can reasonably be read giving the definition of the activities covered not to cover two people under a bed with no depiction of sexual organs or anything else.

Mr. Sirkin: --The problem is, is that the statute uses the term actual sexual activity and/or simulated, and again--

Justice Scalia: It depends on what you mean by sexual activity.

If it's just a depiction without any indication of the sexual organs it's certainly reasonable to say that that isn't covered.

Mr. Sirkin: --But that's not what the statute says, though.

Justice Kennedy: Well, the statute does say explicit.

Doesn't that cover what Justice Scalia--

Mr. Sirkin: No it doesn't, because it says explicit sexual conduct, actual or simulated and I guess it depends on how you read that word simulated.

Justice Kennedy: --You say explicit.

What work does the term explicit do?

Mr. Sirkin: It means clearly and again clearly would mean to me that if it appears that they're under the blanket and that's what they're doing I think it's a reasonable inference to be made and I think that it would cover that as simulated activity.

Chief Justice Rehnquist: But explicit certainly can mean something different than clearly.

Mr. Sirkin: It can, but it's not defined in the statute.

They could have gotten rid of the word simulated.

Chief Justice Rehnquist: Then maybe the courts will define it so that it wouldn't cover the kind of thing you're talking about.

Justice Stevens: It is defined in the statute, sexually explicit conduct that was in quotes means actual or simulated sexual intercourse.

Mr. Sirkin: And some other things, and it uses masturbation and--

Justice Stevens: It includes sexual intercourse, it seems to me it's sexual intercourse whether you see the entire body or only part of it.

Mr. Sirkin: --I agree with Your Honor that it would be simulated if they're under the blanket and you see the heads.

Justice Ginsburg: I think the question is whether you could, a court could say well, to keep this within constitutional bounds we will read into the statute this broad requirement that there be an actual showing of sexual organs.

Mr. Sirkin: You know, legislatures write statutes, I think the courts interpret them and I think to construe it you'd be basically rewriting the statute if you did that, if you eliminated that terminology and I don't think the government has urged that.

Justice Stevens: Am I not correct in remembering that one of the amendments to this series of statutes by Congress specifically eliminated the requirement of patently offensive and the like?

Mr. Sirkin: They've done that in the child pornography area a long time ago.

They did that in Ferber when they said that it, just if it merely is children involved in sexual activity it's a violation of the law and it's not subject to the three-prong test of Miller and the patently offensive is a part of the Miller test.

Justice O'Connor: Do you have any examples of the use of computer generated images covered by this statute where it has serious literary or educational value or scientific value?

Mr. Sirkin: Well--

Justice O'Connor: Do we have examples of that?

Mr. Sirkin: --Today I don't know that we have examples today of that.

I mean, I would think that if we convert the videos and the films that are being made today into DVD, those are, that's a computer, digital computer--

Justice O'Connor: Because your concern is with the expansion to these images of things that are already prohibited and yet I don't think we have examples of any serious use of them in--

Mr. Sirkin: --Well, if I--

Justice O'Connor: --areas which would be of concern.

The examples that we've talked about today and that I think you've identified seem to be of films using youthful adults.

Mr. Sirkin: --Well, that would be correct but I think it's not, you know, too in the distant future that we will be making films that will be virtual reality.

Justice Breyer: But they're their strongest argument is... I mean, I thought their argument is you're right, those things you're talking about are not covered.

They're not covered today because everybody knows they're not really under the age of 18, the actors.

And tomorrow if we have a new system we'll worry about it tomorrow on a case by case basis.

Maybe all they'd have to do is put on the top these are not real, I don't know what they'd have to do, but they're so few and far between that we shouldn't strike the statute down on its face.

Now that's why I think people are asking you for particular examples because if you have to make up an imaginary example that doesn't really exist then maybe the correct thing to do is say the statute shouldn't be struck down on its face and we'll proceed case by case as a reasonable literary or scientific virtue to a particular thing.

Of course the person can't be convicted.

Now that's case by case.

I'm putting what I take it is their argument here.

Mr. Sirkin: But the problem with that is it creates a chilling effect because who's going to take the chance?

I mean that's it, if the government says if it's close to the line I think the petitioners have indicated in their brief that if it's close to the line then just don't do it, you know, don't publish it, don't make it, and that's censorship.

Justice Breyer: What about the other argument which is look, we're trying to protect the real children who are the subjects of the film and the reason we need this to protect them is because there is no way for any expert or anyone else to say when they see a film whether this is a film of a real person or whether it is a fake film made through virtual technology.

The experts just can't tell us.

Mr. Sirkin: Well, I think that becomes, you know, an excuse.

Justice Breyer: Is it true?

Mr. Sirkin: It is not true.

Justice Breyer: All right.

You think it is not true, they think it is true.

Is there somewhere in the record I could look or some place I could find out as to what experts think?

Mr. Sirkin: Yes, because I think you can look at the Senate hearing report where it's indicated that in 1995 in relation to cases that were brought there was a conviction rate of 97.6 percent.

In addition to that, that since the enactment of this law the government has not lost a case and it was raised in the Kimbrough case and it was raised in the Fox case, they were able to get a conviction.

Justice Scalia: You say the congressional finding is wrong then because the statute begins with, among other findings, new photographic and computer imaging technologies make it possible to produce by electronic, mechanical or other means visual depictions of what appear to be children engaging in sexually explicit conduct that are virtually indistinguishable to the unsuspecting viewer from unretouched photographic images.

You say that that congressional finding is wrong?

Mr. Sirkin: That congressional finding, I don't think it was empirically, there was no empirical evidence that was really shown to Congress that that is correct, that the computer, and I believe, and I think it's clear--

Justice Scalia: So you have both your opponent and the Congress who think you're wrong on this point.

Mr. Sirkin: --Yes.

Justice Breyer: Okay.

But your point still is, I take it is, even if in fact the Congress is correct on that, there's no evidence that cases are being lost because of this virtual indistinguishability problem, cases involving real children.

Mr. Sirkin: That's correct.

And I believe if you want to make it easier for the government to make convictions I think that we could get rid of the Bill of Rights and it would be much easier for the government then to get convictions.

Justice Scalia: Mr. Clement gave an example of another case in which the government did obtain a conviction but only because of the new statute in which the government witness was unable to say.

Mr. Sirkin: That was that government witness.

That doesn't mean that there are not witnesses out there and experts that can make that distinction that if, you know, there clearly would be, pardon?

Justice Scalia: This was just a bad government witness, you say?

Mr. Sirkin: It could have been.

I didn't hear the testimony in that case but they did in fact get a conviction in that case.

But I think it's equally as dangerous to create a barrier to First Amendment.

Justice Scalia: Wouldn't have gotten a conviction if the law had been what you want it to be, isn't that right?

Mr. Sirkin: We don't know they wouldn't have gotten a conviction with that... the testimony in that case was that the expert indicated that he was not sure and could not positively say whether it was real or not real.

Justice Scalia: And on that basis can you find beyond a reasonable doubt that it was a depiction of an actual minor.

Mr. Sirkin: It creates an inference and a jury can draw inferences from the evidence.

Justice Ginsburg: Suppose the law put the burden on you, on the defendant to show that this depiction does not use an actual child.

The defendant, because of this proof problem, is not brought out, the confusion is it a real child, is it a simulation.

Suppose it were made the defendant's burden to show that no actual child was used in this picture, would you have a constitutional objection to that?

Mr. Sirkin: Yes, I would.

And the reason being is that at least in the possession area that is not an affirmative defense because all it has to be in the affirmative defense, there is no, the element of age, of being able to come forward and show that it's not a real child or that it's underage is not available--

Justice Souter: Okay, let's assume that that too was fixed.

Those two features, Justice Ginsburg's and the inclusion of the possession is subject to the defense, would the statute then be constitutional?

Mr. Sirkin: --I, the possessor though, you'd be switching the burden of proof then I believe and I think that would be an unconstitutional shifting of the burden.

Justice Souter: Well, you'd be making, you be... are you saying that the affirmative defense therefore is, in effect, has got to be constitutionally relevant across the board?

Mr. Sirkin: I believe that it is.

I think the affirmative defense that's in this statute is unconstitutional.

Justice Souter: So there's no way to tailor it by affirmative defense in effect is your argument.

Mr. Sirkin: That's correct.

Justice Scalia: And how would that affirmative defense prevent some of the evils that the government is trying to prevent, for example the seduction of minors to sexual conduct by showing things that appear to be minors?

How would this, affirm... the existence of this affirmative defense still enable the government to do that?

Mr. Sirkin: There are currently, there are currently lots of laws that deal with anyone who attempts to entice a child and I believe that those laws could be enforced and I believe that the penalties could be increased and that could be a deterrent effect on that.

We're talking about the use of this material potentially by a very small segment of the population and I think it affects--

Chief Justice Rehnquist: Well, you could say the same thing about a murder statute, you know, you don't expect a whole lot of people to go out and commit murders but that doesn't mean Congress can't legislate against it.

Mr. Sirkin: --But here you can't legislate that if it's not, if it's a virtual murder and there has been no murder, you don't go out and arrest people.

Here if you use a virtual, a fictional character you can go out and arrest people.

Justice Scalia: Well, if you want to talk about a very small portion of the population I would think there's a very small portion of the population that wants either to produce or to watch adolescents and children engaging in sexual conduct of the sort described in this statute.

You're dealing with a small portion of the population to begin with.

Mr. Sirkin: But if you use the principle that's involved here then I do believe you begin the slippery slope.

You go from the idea you can use this and expand it, you can use it, you know, that if you have depictions such as, you know, the movie the Godfather, the movie Pulp Fiction which are cult, you know, movies that are attractive to children, someone could come out and say, hey, look, join my gang, look how much fun it can be if we go out and become extremely violent.

Justice Breyer: What's worrying me about what you're saying now is that if their factual hypothesis is true, which I tend to doubt, but I'm not an expert, that there is no technical way to distinguish between a photograph of a real child and an imaginary child, if it were true, there is no expert who could tell you the difference and you tell me I can not have an affirmative defense, then the government cannot prosecute real child pornography.

Mr. Sirkin: I think they can--

Justice Breyer: Because there would be no way to prove beyond a reasonable doubt that it was a real child.

So if you deny the government the possibility of the affirmative defense weapon you are denying them the possibility of prosecuting real child pornography.

Mr. Sirkin: --That's not correct because they've been able to get convictions and they've gone forward and they've gotten convictions.

Justice Breyer: Well, presumably people think that it is possible to distinguish between the real child and the virtual fake.

Mr. Sirkin: But I don't believe, you know, at least currently they've not lost any of the cases and there's only been the one where someone has raised the issue and that expert had indicated that they weren't sure.

Justice Breyer: I think what you're doing is in effect varying the question, you're saying, look, in the real world it doesn't happen, they can tell.

But if you assume the hypothesis that Justice Breyer started with, the factual hypothesis that if these are well enough made you can't tell the difference, then doesn't it follow that if you rule out the affirmative defense route for the government, the government simply won't be able to prove the case in the instances in which real children are being used.

Mr. Sirkin: I'm going to go back and I'm not begging the question, again, if I have, if there is virtual murder that looks so real on the screen, I don't go out and charge anyone with murder.

Justice Scalia: Well, we can distinguish attraction to other forms of socially damaging behavior from that particular category of social... socially damaging behavior that has for hundreds of years been treated as obscenity.

I don't think there's any risk of the Court suddenly declaring that excessive violence constituted obscenity.

We know what obscenity is.

There have been laws against this particularly infectious kind of solicitation to conduct for centuries.

I don't know why you think we're going to suddenly flop over into prohibiting the Godfather because that also portrays socially undesirable conduct.

Mr. Sirkin: If you take the logic that's behind here about people, you're getting at the person who is misusing the material and there certainly I think is, you can't even do medical--

Justice Scalia: Sexual material in a category called obscenity which has traditionally for hundreds of years been regulable by government.

Mr. Sirkin: --But the obscenity here we're making just because it's a fictional character visually participating in an activity that I can write about, we're now saying you cannot express, that we're saying, we're giving it a social status, and I think when we start to do that then we start to eliminate, we can start eliminating other areas equally.

I further believe that, you know, as I've indicated, that the affirmative defense seems to be inadequate.

It certainly does not cover the individual possession and that individual is in a position where if he has three images, if he gets a DVD movie and he takes, and it has more than three images in it, he's now, you know, can be prosecuted for possession of child pornography.

And, again, with the definition, when you put it together with the definition of simulated.

I think that it is not narrowly tailored, it is overly broad because I think, again, it covers literary material, it carries certainly for medical research, one cannot, there is no bona fide exception here for medical, scientific or educational or artistic merit, it's a blanket across the board prohibition.

I believe the Court clearly indicated in Ferber--

Justice Ginsburg: But what if we accept the government's limiting construction, the government is urging that we use this, take the congressional finding, read it into the text of the statute and then it would cut out all the good things.

Mr. Sirkin: --I believe that the Court has indicated in the past in Turner Broadcasting and in the landmark communications case that it's not for the Court to be rewriting statutes as they come out of Congress and particularly in the area when it deals in areas of First Amendment.

And I think that the Act, you know, and what we're proposing here--

Justice Ginsburg: Supposing that... suppose we could consult Congress, they would say yeah, preserve as much of this as is constitutional.

We wanted to do a whole lot but if the constitution only allows us to do a little we'd rather have the Court say that than to throw out our entire product.

Mr. Sirkin: --All we're asking is, is the Court sever out two phrases and that is that is, is it appears to be and that it, you know, and where it conveys the impression that a minor is engaged in sexual activity.

Chief Justice Rehnquist: Well, in X-Citement Video we did something not too different from this, reading in a requirement that wasn't express in the statute.

Mr. Sirkin: You did read in the elements of knowingly and you have to do that.

Basically the government is doing the same thing in this particular statute because the knowingly appears in this statute exactly as it appeared in the statute that was interpreted by the Court in X-Citement Video.

It says knowingly in relation to mailing or to transporting, it doesn't say knowing as to the knowledge of the particular minority.

Chief Justice Rehnquist: But that's an example of a case where there was a First Amendment challenge where we have read something into a statute that we might not necessarily have done.

Mr. Sirkin: The Court has the power to do that.

Chief Justice Rehnquist: And there's precedent for our doing it.

Mr. Sirkin: Yes, in X-Citement Video the Court did do that.

But we're urging here that the fact is that the Ferber and Osborne were based upon the harm to real children and we're now limiting something because of the message.

We are socially making a determination here that this is speech we don't like.

Justice Kennedy: Are you saying that if real children are not used in the depiction of simulated sexual activity that it cannot be barred unless it meets the Miller standard?

Mr. Sirkin: Yes.

It would mean--

Justice Kennedy: Eight year olds, ten year olds, twelve year olds.

Mr. Sirkin: --They're fictional characters, because I think they do have a valid use in medical research.

Justice Breyer: Suppose you said... suppose you said... suppose I... I don't know how I'd do it, suppose I could draft a statute which had a medical research exemption.

Mr. Sirkin: It would make it narrower.

Justice Kennedy: Would it be constitutional?

Mr. Sirkin: Again, I'd have to see the whole statute and, again, I think that it would depend on how it works and whether it still had the problems with the affirmative defense.

Justice Breyer: Suppose you took... I just want to follow up on what Justice Kennedy said.

Suppose you took Miller and said where you have clearly minors we as a matter of law assume that it's patently offensive.

Mr. Sirkin: That could be done.

Justice Breyer: That could be done, you'd still have the other two parts.

Mr. Sirkin: Yes, and I think that most communities would feel, I think that all communities would feel that that is patently offensive.

Justice Breyer: I wonder if Miller would work more satisfactorily if you did that in the case of people who clearly appear to be minors.

Mr. Sirkin: I believe that it would.

Justice Breyer: You think it would.

Mr. Sirkin: Thank you.

Rebuttal of Paul D. Clement

Chief Justice Rehnquist: Thank you Mr. Sirkin, Mr. Clement you have one minute remaining.

Mr. Clement: Thank you Mr. Chief Justice.

Counsel for Respondent notes the 97 percent conviction figure.

Well, that reflects a couple of things.

One, it reflects that the 1996 Act has allowed us to prosecute cases even where there is a reasonable doubt about whether it is a virtual image or not.

The other thing that the 97 percent conviction rate reflects is that we are not out there prosecuting people who pick up Traffic at the Blockbuster.

It's no accident that the one court that considered this case in a facial challenge struck the statute down, but the four courts of appeals that considered it in an as applied challenge upheld the statute.

Those cases give you an illustration of what the statute is really applied to.

The Mento case involved over 100 images of prepubescent children.

The Acheson case in the 11th Circuit--

Justice Kennedy: Is there any precedent that we judge a free speech statute based on the kind of prosecutions the government has been bringing?

Mr. Clement: --There is precedent and the best one I can think of is Ferber for waiting until as applied challenges to deal with the fringe cases, the tiny fraction cases.

And I think, as in Ferber, if you wait for those cases to be brought you'll find that they are not brought in these cases.

Another point I think worth emphasizing is that I don't think given that this statute only covers explicit sexual conduct that there'll be much medical research involved.

Chief Justice Rehnquist: Thank you, Mr. Clement.

The case is submitted.