United States v. Williams - Oral Argument

Argument of Paul D. Clement

Chief Justice Roberts: We'll hear argument first this morning in case 06-694, United States v. Williams.

General Clement.

Mr. Clement: Mr. Chief Justice, and may it please the Court: This Court has made clear that speech proposing an unlawful transaction is not protected by the First Amendment.

And speech that falsely proposes an unlawful transaction is likewise unprotected.

The statute at issue here properly construed does no more than prohibit efforts to offer or solicit materials that are contraband and then prevents somebody from turning around after soliciting or offering contraband and suggesting that the materials either did not exist or were not contraband after all.

The statute does not prohibit truthful speech about lawful materials.

Accordingly, the court of appeals erred in striking the statute down on its face.

Chief Justice Roberts: But if I could start with one of the more compelling hypotheticals on the other side.

Let's say I'm a movie reviewer.

I write a review saying this is an awful movie.

It portrays child pornography.

Aren't I presenting information in a way that would cause others to believe that the movie contains child pornography, and wouldn't that be covered by the statute?

Mr. Clement: Mr. Chief Justice, we do not think that would be covered by the statute.

We don't think that that would involve... in the first point, we don't think it would involve presentation or promotion of the movie in the meaning of this statute.

We think those terms are really limited to efforts to make the product available to the market.

And I think if you read those terms in conjunction with each other, they are all directed at efforts to make the product available to the market.

Now, so if the person whose actually distributing the film wants to try to market it as actual child pornography, then I suppose that would come within the ambit of the statute.

But a movie reviewer does not have anything to worry about in the first instance because I don't think that would come within the term--

Justice Kennedy: Suppose the distributor attaches the movie review.

It's in [amazonDOTcom,] and then it has the movie review.

Mr. Clement: --Again, Justice Kennedy, it might be conceptually possible for somebody to market, let's say a mainstream movie, on the basis of a... either their own statement or an attached review, that misrepresents the nature of the movie and makes a claim for the movie, that it's actual child pornography.

I suppose in that unusual circumstance, it would be covered.

But I guess it would be equally possible for somebody to take one of the countless mainstream movies that portrays a murder on screen, and say this is actually a snuff film.

There's actually... this was a snuff film.

This was an actual murder.

Now, somebody who did that would be clearly misrepresenting the film.

I don't think they would turn around if somebody tried to do something about that false or misleading speech and be able to defend on that speech because it would be clearly false and misleading speech.

And I think what is important here is if the underlying movie is not child pornography, then truthful efforts to promote that movie won't be captured.

Justice Stevens: Supposing the underlying movie is a depiction of atrocities being committed in some foreign country, in a war zone or something, by soldiers who rape young kids.

And so it comes within the literal terms of the statute.

And if one said I'd like to take a look at this movie, wouldn't that be covered by the statute?

Mr. Clement: If the movie itself comes within the--

Justice Stevens: The movie itself would be pictures of soldiers raping young kids.

Mr. Clement: --And if it were done in a sufficiently graphic way, that it was captured--

Justice Stevens: If the news... I'm thinking of the news reel... somebody makes as exhibit at a war crimes trial, or something like that... sees this actually happening.

Now, as I understand the language of the statute, if the person who had that film described it to someone he wanted to send it to, he would violate the statute.

Mr. Clement: --Well, Justice Stevens, there's... I guess there's an anterior problem, which is if the depiction were sufficiently graphic--

Justice Stevens: They are.

Mr. Clement: --The person that would have that film would be in possession of child pornography, which itself would be a problem under the statute.

He's in the possession of it.

Justice Stevens: Depiction of a war crime taking place?

He saw that on camera... that would be a crime?

Mr. Clement: And that might be an example where, starting with the basic prohibition on the possession of child pornography, that might be a situation where there was a valid as-applied challenge.

And that also might be a situation where there would be a valid as-applied challenge to the pandering and solicitation provision.

But I think the proper way to analyze that is to ask first whether or not something is covered by the basic prohibition.

Justice Stevens: You do agree I guess that there are some... there would be some valid as-applied challenges to this statute.

Mr. Clement: I agree, and I think in theory, at least, there may be valid as-applied challenges to the underlying prohibition.

And this Court of course in Ferber recognized that possibility in upholding the basic prohibition on the promotion of child pornography in that context.

Justice Ginsburg: But Ferber confined the meaning of child pornography to, I think, the greater extent than this statute does.

It talks about artistic value, but this... there were several examples given in the briefs.

One was this film depicts 12 year old child having sexual relations with an old man.

Now that statement could be perceived as this film shows child pornography.

Just that statement.

But it's a truthful statement about Lolita, is it not?

Mr. Clement: It is, Justice Ginsburg but I think in context that would not be something that comes within the ambit of the statute.

And again, if you start with the proposition that--

Justice Ginsburg: Why not?

If you say... if you say, 12 year old child... this film shows a 12 year old child, and it doesn't tell you that the person who's playing a 12 year old is a young adult?

Mr. Clement: --I understand that, Justice Ginsburg.

What I would say is this statute in order to apply, at least the way we interpret it, requires both an objective and a subjective component.

And so you would have to have a situation where that promotion of the movie objectively would lead somebody to believe that you're marketing in a manner that portrays it as actual child pornography.

Now I think what you've just said right there would probably fail at the objective test because I think particularly when you start talking about it being a motion picture and the like, the natural assumption... let's say it's a mainstream motion picture, is going to be oh, that's just actors, it's probably adult actors, or a body double or something.

I don't think that comes within the statute.

The other thing that's required, of course, is a subjective component... specific intent is the way that we would read the statute.

And clearly the person who's marketing Lolita itself and wants people to go see it in a mainstream box office does not have the intent to convey to people that this is actual, forbidden child pornography.

Justice Souter: Well what if an individual received actual child pornography in the mail that had not been solicited.

And he calls the chief of police in town and says I just opened my mail, and this envelope is full of child porn.

And he's right.

I mean, there are no body doubles.

This is the real thing in here.

He has presented child pornography to that chief of police and he's violated the statute, hasn't he?

Mr. Clement: Justice Souter, I would say that the better answer is no, that he has not.

Now--

Justice Souter: You say no, but you say no because we won't enforce it that way.

But the... but the objective component and the subjective component in my example are both satisfied.

Mr. Clement: --Justice Souter, I would say no for a more fundamental reason, which is I think you have to read two provisions of the statute here in pari materia.

And the other provision I think that is relevant is the affirmative defense that's in subsection (d) of the statute, which is at 6a of the appendix to our opening gray brief.

And that provides an affirmative defense in the situation where somebody is in possession of child pornography.

Now, the first problem the person who gets child pornography in the mail has is that the statute... the bans of possession would apply.

Now, there's an affirmative defense.

The affirmative defense is specific to possession, but one of the things that's a prerequisite to qualify for the affirmative defense, which is in (d)(2)(B) is that you have to afford that material... you have to afford the agency, the law enforcement agency, access to the material.

Now--

Justice Souter: That's... that's fine, but before you get to that point, you have... there's still an indictable offense.

You don't prevent... you don't present affirmative defenses until you're already indicted.

Mr. Clement: --You're right, Justice Souter, but that is a problem both for the prohibition on possession and it is not a unique problem for the pandering solicitation provision.

And I don't think the fact that you might have to if... in that situation, you might have to actually present your affirmative defense in some case is a reason to strike a ban on possession as overbroad.

But the--

Justice Souter: But the ban on possession is not the real problem because, under a normal possession statute, you would indeed have a problem not merely in terms of... that could be raised not merely by affirmative defense but as an element of the statute.

If the possession is merely a matter of happenstance, there's an intent problem and presumably there's no... there's no offense.

There's no knowing offense in acquiring material for the possession.

But in the pandering statute, what we've got here is there is... as you put it earlier, there is an understanding which happens to be correct, objectively correct, that there is child porn, and there is a very clear intent to convey that message by way of presenting this material to a third party, in this case the police.

So I think this is not merely comparable to the problem of haphazard possession.

Mr. Clement: --Well, Justice Souter, let me try two responses.

One is I do think you have a problem even in possession because once you get it in the mail, your possession of it is knowing.

And that is precisely why Congress included this affirmative defense in the statute.

The second thing I would say though is again, we have to read these statutes in pari materia, and if one of the ways you qualify for the affirmative defense is you afford access to law enforcement agency of the material, I don't think that which is a prerequisite for qualifying for the affirmative defense can be independently prohibited--

Justice Scalia: What if--

Mr. Clement: --by the statute.

Justice Scalia: --What if you call up your neighbor and say God, I got this disgusting child porn in the mail?

Mr. Clement: Well... and, again, I think if you did no more than that, I don't know that you would necessarily be covered by the statute, but if you said I got this disgusting child pornography in the mail, it's clearly unlawful, here take a look, I mean I suppose that is covered by the statute.

But that doesn't seem like a natural reaction.

Justice Breyer: Indeed, it is covered by the statute because I read your brief as saying that the statute applies only in instances where either you're trying to sell it or trade it.

That is what you're trying... now it seems to me a different matter if it's covering only... covering as well instances where somebody's simply showing it to someone else to show him what he got in the mail.

Well, I'd appreciate clarity on that.

Mr. Clement: Justice Breyer, I think that we would take the position that even if you are presenting the material, making it available, but you're not charging for it, you're not exchanging it, you're just offering it for free, here's a quick free look, it's still covered by the statute.

Justice Breyer: If that's covered by the statute, what you're going to do then is suddenly criminalize what could be an awful lot of activity that goes on in schools all over the place and somebody has... they think it's funny, and maybe it isn't funny, but they think it is and it's kind of school-boy behavior, and they're showing this stuff around, not totally certain what it is.

Suddenly that can become a Federal crime.

Seems like quite an extension.

And I thought you'd written your way out of that problem, and now I think you haven't.

Mr. Clement: Well, Justice Breyer, I mean, you know, I think you could certainly interpret the statute to write around that problem if you wanted to, but I do think the most natural reading of the terms

"promotes, distributes, presents, and advertises. "

is to capture not just somebody who is making that available to the market for sale or for barter, but also somebody who says look, I have child pornography, I want to get you interested in this, this is the real stuff, here take a look.

Chief Justice Roberts: Well, that's a very different thing.

I read your brief the same way Justice Breyer did and particularly footnote 4 of the reply brief, which I understood to be giving "presents", for example in this statute, a promotional meaning in light of the other words around it, "advertises, promotes" and simply telling your... you know, your neighbor, I got this, what should I do about it, isn't promotional.

It may be in a technical term "presents", but it's not promotional.

And, again, I understood your brief to suggest that you have to interpret all of those words in an advertising, soliciting sense.

Mr. Clement: Well, Mr. Chief Justice, here... I mean I think my first cut at drawing the line would to be say it's not a problem to say, can you believe what I got in the mail, and talk to your neighbor about it, describe it.

On the other hand, I do think you're presenting the materials if you say, I got this in the mail, look at this, isn't this disgusting, this is clearly child pornography.

Justice Breyer: All right.

Then take it as that.

Mr. Clement: If you think though--

Justice Breyer: Take it as that.

I would say looking and presenting to schoolmates dirty pictures is a fairly common adolescent and post-adolescent activity.

And I would suspect a very high-level percentage of that class of people don't examine too carefully what the age of the individuals depicted is, and many might misrepresent what that age is.

So this sounds like a statute that has enormous reach, whereas previously I thought it hadn't.

Mr. Clement: --Well, Justice Breyer, if you think that's the difference between expanding this statute in some enormous way and not, then I would invite you to have a more restrictive view of "presents".

And we certainly want you to interpret the statute in a way that renders it not overbroad.

And, of course, this Court has made clear on a number of occasions that, before you get to the overbreadth analysis, you are applying the early constructions to make sure that the statute if possible--

Justice Ginsburg: But--

Mr. Clement: --is construed to be constitutional.

But if I could just... I'm sorry.

Justice Ginsburg: --I just wanted to clarify the footnote to which the Chief referred, that footnote 4 in your reply brief.

It says, to the contrary, the government's brief expressly acknowledges that the statute's proscription encompasses noncommercial speech.

So I think Justice Breyer's suggestion that you said in your brief, that the statute is limited to commercial speech, is something that you... say, no, that's not so; we say it encompasses noncommercial speech.

Mr. Clement: Well, Justice Ginsburg, I think there may be a distinction to be drawn.

We certainly don't think that it's limited to commercial speech if by "commercial speech" you mean only efforts to buy or sell or even only efforts to barter.

Because we think that somebody who sort of systematically is operating a web site where they are giving away child pornography and advertising it as such would be clearly covered by the statute.

So, to the extent that the distinction between commercial and noncommercial is at the line where you would say you're giving it away gratis, we think that's still covered.

Now, I gather that maybe Justice Breyer had a different conception in mind, that you really have the--

Chief Justice Roberts: My understanding was not that it was limited to commercial speech.

That was clear from the footnote that I cited.

But that "presents" was limited to promotional activity.

It's one thing to present and say either whether to law enforcement or your neighbor; it's another thing to promote the child pornography.

And I thought your brief was adopting a limited construction of words like "presents" that would cover only promotional activity.

Mr. Clement: --Well, in fairness, Mr. Chief Justice, I think we had a slightly broader conception of "presents".

What we were thinking that "presents" means is really when you are not just sort of... you know... in some abstract way talking about presenting the material, but you're actually furnishing the material to somebody else.

Justice Alito: Well, General Clement, is there--

Mr. Clement: And--

Justice Alito: --Is there anything to suggest that some of these hypotheticals, where people get child pornography unsolicited in the mail or that kids at school are showing each other not just dirty pictures but actual child pornography, are situations that occur with any frequency in the real world?

Mr. Clement: --Not at all, Justice Alito, and I think that's an important point with respect to Justice Breyer's hypothetical.

I mean you have to remember that the materials that we're talking about here are in the main materials that are unlawful even to possess.

And it is also true that the... in the wake of Ferber, a pretty good job was done of getting these materials out of the real world.

So the kind of pictures that are--

Chief Justice Roberts: I'm sorry.

I lost... in your answer, I lost a negative or something.

Are you saying that this type of activity frequently occurs or infrequently occurs?

Mr. Clement: --Infrequently occurs... especially in the real world, which is to say when pictures or magazines are being handed around from adolescent to adolescent, there is really no reason in the world to suspect that what's being handed from adolescent to adolescent is child pornography as opposed to adult pornography... Playboy and that sort of thing.

Because the truth of the matter is in the wake of Ferber, a pretty good job has been done in stamping out child pornography in the real world.

It has moved, unfortunately, on to the Internet.

And, in that context, when people are promoting it as actual child pornography or soliciting it as actual child pornography--

Justice Stevens: The universe of child pornography includes activities of 17-year olds.

Mr. Clement: --It does, Justice Stevens, but so, too, for the basic prohibition.

And I think what's important here is there may be some definitional, you know, questions.

Or you may have a view that there are applications of the statute that would be unconstitutional.

But what's important, I think, is that this pandering and solicitation provision doesn't add some new definition, some more aggressive definition.

It simply picks up the notion of the basic definition of child pornography, and it says that if you're taking materials and you are offering them to the market as actual child pornography, if you are soliciting actual child pornography, then the government can go after the direct acts of solicitation and offering and... and... prosecute those acts without--

Justice Ginsburg: Even though... even though what you are, in fact, showing or presenting does not fit the definition?

Even if what you're showing... you say, have I got some hot child porn and here it is, and the "it" is... is... an adult pretending to be a child, or a virtual image.

So the... the problem is not an accurate representation that this is hardcore porn, and it is, but saying, have I got the real stuff, but what you present is not at all the real stuff.

Mr. Clement: --That's right, Justice Ginsburg.

If the scienter requirements are satisfied and I'm consciously trying to get you to believe that even though I have something that for some technical reason is not the real thing, what I'm offering you is the real thing, the statute does target that.

But that seems to me to not be a First Amendment problem.

It seems to be a natural consequence of Congress taking the Court's advice in Free Speech Coalition and moving from a prohibition on materials that had been pandered to the actual acts of pandering and solicitation themselves.

Justice Kennedy: And is that your answer to the... all of the hypotheticals that are put forth in the Coalition for Free Speech, the Catholic Bishops, the advertisement in [amazonDOTcom] or Netflix, then?

Mr. Clement: Well, Justice Kennedy, we think that all those hypotheticals are taken out with more than one reason.

I mean, I think from the Catholic Bishops--

Justice Kennedy: Let's... pardon me.

Mr. Clement: --Sure.

Justice Kennedy: Let's assume for the moment that there are minors, so that the content aspect of it is film.

Mr. Clement: Oh--

Justice Kennedy: That there are real minors in some of these things.

Mr. Clement: --But are there real minors engaging in forbidden activity?

Justice Kennedy: Yes.

Mr. Clement: Actual child pornography?

Justice Kennedy: Yes.

Mr. Clement: Well, if the underlying material is actually child pornography, then you may be in a different situation.

All of the hypotheticals in that brief were with materials... the underlying materials were not child pornography.

And I think that's an important distinction, because if you're taking a movie like "Traffic" or "American Beauty", which is not child pornography--

Justice Kennedy: Right.

Mr. Clement: --and you're simply truthfully promoting it, you have nothing to worry about with this statute.

Now, if you took something... I also think that the Catholic Bishop situation isn't covered, because that is not promoting, presenting and distributing--

Justice Kennedy: If one had a hand held video at a school or something like that?

Mr. Clement: --Well, I mean, again... I mean, if you had a hand held video and the video itself was child pornography, and then you got that on the Internet or otherwise and decided you wanted to promote that, I mean would be covered by the statute.

But--

Justice Kennedy: There are two things that you... that all of us have to work with here.

One is the scienter component here.

Is that overly broad, vague, and so forth?

The other is the content.

And my concern is the same as that indicated by Justice Stevens at the outset.

There are some terrible practices in the child-trafficking area where children are held in brothels for the most debased of acts.

There are abuses in prisons, abuses in schools.

If there are videotapes showing those things, it seems to me that the statute is... that they're clearly covered by the statute, and maybe even a killing of a little girl in public might be sadistic.

Assume that that's covered by the statute.

Is there anything in the "presents" and the "promotes" language in the scienter component of the statute that gives some protection to these materials?

Is it just as-applied?

Is that what we have to do?

Mr. Clement: --Here is how I would try to analyze it, Justice Kennedy, which is I would say that there would be an as-applied challenge there because the basic prohibition on child pornography that would apply to the underlying materials, there would be an as-applied exception to that.

And therefore, the pandering and the solicitation of that would be equally outside the constitutional--

Justice Kennedy: So we want the public to see this to show them how bad it is, and that is permitted under the statute, because it is not "presenting"?

Mr. Clement: --I mean there would be another way to try to get at that.

Justice Kennedy: I agree with you that we have different motives.

Mr. Clement: Right.

Justice Kennedy: But I'm not sure that the statute covers that.

Mr. Clement: Well, there might be a way in which the statute could cover it, and it would be, as follows, which basically is if I'm going to portray that as material that is... and I'm going to portray it only in a way that makes it clear that I have a valid as-applied challenge, then I'm not sure I would be satisfying the objective and the subjective scienter requirements for that statute.

Because it would be clear that, although I was presenting it as visual depictions of children who had that happen to them, I was presenting it exclusively for its scientific, artistic, literary value.

And, therefore, in a sense, I was building my as-applied challenge into the way I was marketing it.

I think you could--

Justice Scalia: Of course, you have a problem not just with the presenting, not just with the pandering of it.

You have a problem with the mere possession of it.

You have to find some exception for that anyway.

You have to find some as-applied challenge exception for the mere possession of it, even if you don't pander it.

Mr. Clement: --Well, Justice Scalia, that's exactly right.

And that's why I would think the logical way to proceed would be you would find an as-applied exception to the basic prohibition.

And then, naturally, that would apply to the pandering provision.

I was only sort of suggesting, if pressed, that in some ways it might actually be easier to find a way to get that outside the statute with respect to the pandering and solicitation provision than for the possession for this.

Justice Souter: But how would you do it in the case... you mentioned that if there is not actual child porn shown, and there is a truthful or honest statement about it, that there is nothing to worry about.

But what about the movie reviewer who is reviewing the latest re-release or something of the "Lolita" film and says this depicts sexual activity with a minor?

That statement is true.

It would be taken by some naive people as saying boy, this is what it shows, the real thing.

That is a truthful statement.

And yet, it would still fall within the prohibition of the statute.

As I understand your position, the only way that statement would be truthful in a way that would excuse would be if the reviewer said this depicts sexual activity with a minor, but of course the actor wasn't really a minor.

Isn't that correct?

Mr. Clement: No, that is not correct, Justice Souter.

And I would say that that hypothetical is outside the ambit of the statute for two reasons.

First of all, I don't think that the movie reviewer is promoting or presenting the underlying materials.

They would be out for that reason.

I also think they would be out because, when you started applying the objective and the subjective requirements of the statute, you would not find either of them satisfied with respect to that.

If I know you're talking about a mainstream movie, and you say it depicts sex with a minor, I'm not going to naturally think that comes within the ambit of the statute, that it is actual child pornography within the meaning of the statute.

Justice Souter: What if you are 17 years old and you haven't gone to law school and you haven't read these cases?

You may very well assume that.

Mr. Clement: With respect, Justice Souter, that's why I think it is important to have both an objective and a subjective requirement.

And I think the objective requirement alone would take that out.

If I could reserve the remainder of--

Justice Scalia: Do we use a seven year old for the objective requirement?

Mr. Clement: --No, I wouldn't think so.

Justice Scalia: We would use a--

Mr. Clement: I think we would use a reasonable person.

That's why--

Justice Scalia: --reasonable adult, I had thought.

Mr. Clement: --Exactly, and that's why I--

Justice Souter: Wouldn't we use... wouldn't we use a reasonable personal of the sort who goes to movies?

Mr. Clement: --That would be fine, Justice Souter, and if--

Justice Souter: I would suppose my 17 year old, non-law-school graduate would be within the ambit of the reasonable class.

Mr. Clement: --And I would submit that even a 17 year old, non-law student would know that movies depict things that don't actually happen.

When they see a murder on screen, that's not actually a murder.

And so I think they would understand that that's a movie.

It's not child pornography.

If I may reserve the remainder of my time.

Justice Ginsburg: You could... just one question.

You mentioned a film, 17 year old playing that part.

But you said that wouldn't be... that wouldn't fit.

Mr. Clement: "Traffic" is not child pornography.

I understand that the actress was 17 at the time of the film, but we don't think that comes within the ambit of the basic prohibition on child pornography, because we think that simulated sexual activity has to be interpreted with enough subtlety that it doesn't capture that.

And that's the position--

Justice Ginsburg: But the statute says simulated.

Mr. Clement: --It does.

But so does the statute in Ferber.

And we don't think that introduced any overbreadth or vagueness that was fatal.

This statute here just picks up on that definition.

It doesn't add to it.

If I may reserve--

Argument of Richard J. Diaz

Chief Justice Roberts: Thank you, Mr. Clement.

Mr. Diaz.

Mr. Diaz: Mr. Chief Justice, and may it please the Court: The pandering provision of the PROTECT Act carries a 5-year mandatory minimum prison term and a possible 20-year prison term, has no affirmative defense provision.

It is unconstitutionally vague and overbroad, because on its face it captures protected speech about materials.

And it captures speech about materials that may not even in fact exist.

The language

"in a manner that reflects the belief, or that is intended to cause another to believe. "

does not sufficiently define prohibited conduct giving law enforcement unfettered discretion to subjectively enforce the statute.

In essence, as the Eleventh Circuit held, the determination does not rest on what materials contain, but rather on how someone conveys his or her impression about what the materials convey.

In other words, this statute, in short, punishes thought, beliefs, expressions, and opinions.

Chief Justice Roberts: Well, there's a difference, isn't there, between beliefs and thoughts about... what, the legality of a particular type of pornography or something like that, and a factual matter?

I thought this was child pornography?

Saying this regulates thoughts and beliefs, those are two quite different questions, aren't they?

Mr. Diaz: Yes, it is, Mr. Chief Justice.

And one of the problems with the statute, and just another example of what we've been talking about here... [amazonDOTcom] and Netflix... there's also, for example, a series of photography that we've seen nationwide by famous photographers of minors or children, photographers of child modeling agencies--

Justice Breyer: But none of those... I mean, we've gone through this with the Solicitor General.

He went through every example in his brief that you've been able to produce, and he said they aren't caught by the statute.

What's wrong with what he said?

Why isn't that so?

Mr. Diaz: --If--

Justice Breyer: Photographers, for example.

That's not child pornography.

And if it was, they would have to act... if it is child pornography under Ferber, it isn't protected.

If it isn't child pornography under Ferber, well, then there's no problem.

Okay.

That's their view of the photographers.

And the same with Amazon, the same with Netflix.

Mr. Diaz: --Correct.

The problem is if I were to take anything such as the CNN video of an actual sexually explicit conduct involving a minor, or if I were to take any of these films, if I were to start an Internet blog and say, look, this film contains sexual conduct of a minor, and I think we should do something about this, I think we should form a coalition or I think we should boycott it.

And I am conveying the belief.

I am intending to make you believe that what those materials contain, albeit what they really have or what they really are, is illegal.

Justice Breyer: Problem with Ferber, you said.

Same problem.

Mr. Diaz: Yes, sir.

Justice Breyer: So what's your response to what he said?

It is the... with possession.

You possess these materials.

What you are trying to do is take them to the police and stop them.

Under Ferber, is that protected or not?

If it is protected, as I think it would be, so is it here.

Mr. Diaz: I do not think it would be protected.

Justice Breyer: Then under Ferber he's going to go right to jail because he has them.

I would think it would be protected.

I can't imagine somebody who collects, on these sites where they are molesting children, material to prevent children being molested and presents it to the proper authority is going to be prosecuted under the New York statute in Ferber.

Mr. Diaz: If the material substantively violates the statute, then the mere possession of them is illegal.

And there is a defense under the possession part of the statute for presenting them to the police within a certain amount of time and within a certain manner of your conduct.

What we're talking about here is not the possession of the materials.

We're talking about the expression about what the materials contain.

Even if you're wrong about it, even if you're mistaken, even if you're lying about it, even if you're bragging about it, the traditional prankster, as Senator Leahy said in the congressional report, one of the things we're concerned about with the statute is that it could capture people who are expressing salacious thoughts.

Justice Scalia: Or just good honest liars, right?

I had thought that the purpose of the First Amendment was to protect speech that had some value, and that the reason obscenity is excluded entirely from First Amendment protection is that it has no redeeming social value.

What social value do you find in being able to lie about the content of what you're offering to somebody else?

You say somehow if you're lying about it, oh, well, then the First Amendment protects that.

I would think if you're lying about it, it is clearer than ever the First Amendment doesn't protect it.

There is no social value in protecting lies.

Mr. Diaz: One of the problems with the issue of social value and lying is that we don't put people in jail for 5 mandatory minimum years or 20 years in prison for simply lying.

We simply don't do that.

I agree with Your Honor--

Justice Scalia: But it depends on what they're lying about.

If they're lying about the value of what they're selling, you know, it's fraud.

Mr. Diaz: --And I agree with Your Honor... Justice Scalia, that we have a slew of State statutes particularly in the area of consumer fraud.

If I pretend to have something that's illegal and offer it to you or promote it to you or advertise it to you, and I have nothing, then that person can and should be punished, but not for... not under this statute.

Justice Scalia: Tell me what social value are we protecting here, by protecting the lie about whether this thing that really isn't child pornography is?

What... why would we want to protect that?

Mr. Diaz: We necessarily do not want to protect that.

But we don't punish it with a 5 to 20-year prison sentence.

Justice Scalia: Are you complaining about the degree of the penalty?

Mr. Diaz: It is not just the degree of the penalty.

The statute doesn't just cover liars, Justice Scalia.

It also covers people who are mistaken.

It covers exaggeration.

It covers puffing.

For example, if I have a legitimate clean videotape that I want to duplicate, I may be violating trademark or other patent laws or whatnot, but I want to take this and I want to sell it in the marketplace over the Internet.

And I exaggerate by the words that I choose to use in promoting that tape for commercial purpose, for example, and I'm exaggerating.

That person if they market the materials in a way that causes the potential buyers to believe that what it has is illegal, even if I'm just puffing or bragging, the car salesman in a car sales situation, we don't like it--

Chief Justice Roberts: But that's an entirely different thing to say that this car is a great car and it turns out not to be a great car, and to say what you have is either... is not... is child pornography when, in fact, it's not.

Those are two different things.

Mr. Diaz: --I think it could be very... in the real world I think it is very easy for a person to puff about what materials contain that are lawful to possess, such as Titanic, Lolita or American Beauty.

And all you would have to say is, put a trailer on it and say that this is hot graphic teen sex, and you're puffing about what it really is.

We know... you know it really isn't.

Chief Justice Roberts: The statute has an objective component.

To the objective observer, it must reasonably cause them to believe that it's actually child pornography.

So that... that would be... that would prevent sort of the vague puffery that you're talking about from being covered while still covering something that satisfies both the subjective and objective test.

Mr. Diaz: Mr. Chief Justice, I think that if a person listens to or hears somebody describe Titanic, Lolita, American Beauty or any of the films of the like as hot graphic teen sex, I think a reasonable ordinary person could believe that what is being portrayed is proscribed material, even if it doesn't exist, or even if it exists and is protected under Ferber.

Justice Scalia: You seem to think we are punishing the lying.

I don't read the statute as punishing the lying.

Mr. Diaz: No, Justice Scalia.

Justice Scalia: You'd be punished even if it were true.

What is being punished is the pandering.

You are the one that's bringing in the lying example.

You say, my goodness, even if the pandering is a lie, pandering is pandering.

And I don't see why there is some special protection against pandering when in addition to pandering, you're lying.

Maybe you ought to get extra penalty.

[Laughter]

But, in fact, the statute does not provide extra penalty.

It just provides a penalty for pandering.

And I don't know why it's a good defense to that to say, oh, I was actually lying.

I mean--

Mr. Diaz: I don't think... I think the statute covers people who brag, people who puff, people who tell the truth, who--

Justice Ginsburg: What about "present"?

The word "pandering" itself is not used in the statute.

It uses a lot of words, "promote" and "advertise"... well, maybe that's just redundant.

I guess that would be the government's position... but "present", "distribute"... what else?

Justice Scalia: --All of those verbs only become pandering when they are attached to explicit sexual material.

When you promote explicit sex, you are pandering.

I mean, the word pandering does have a sexual connotation.

I... I think... I had thought it was accepted that we have here a statute that's directed against pandering.

Mr. Diaz: --But the problem with the statute, while it does capture pandering and illegal conduct, it goes beyond that and captures a slew of innocent conduct which we discussed this morning in the examples--

Justice Alito: What would you say is the best realistic example that you can provide to show that this is overbroad?

Mr. Diaz: --The best and realistic example would be any person, not necessarily [amazonDOTcom] or Netflix, it could be a private citizen.

It could be a religious leader of a religious group, regardless of what type of religion we're talking about.

It could be any of those people--

Justice Alito: Doing... doing what?

Mr. Diaz: --Who look at the... the Nan Goldin pictures, who look at Lolita, Traffic and all of these other movies and harbor a belief that it is obscene, which is one of the two types of materials that's proscribed.

Justice Breyer: Suppose we did this?

What would you think about an opinion, and why, which says the following?

We take every one of those examples and all the ones listed here and put them in appendix A, and the opinion says this is the Solicitor General's interpretation of the statute, as amended, say with the word presentment, which comes out of promotion infer, and we think under that interpretation of the statute, none of these things, nor anything like them, could be prosecuted.

And if so understood, we can find no example, at least none not present in Ferber itself, where this would be overbroad.

Therefore, it is constitutional.

I'm not saying that is my view.

I am saying simply I want to know your opinion about what would be wrong with such an opinion.

Mr. Diaz: My opinion, Justice Breyer, is that could be done.

We could put a dozen or two dozen or three dozen, an exponential number of examples, that would be excluded.

Essentially we would be writing an affirmative defense into the statute or an absolute defense that would prohibit even the prosecution.

The concern that that raises for me, in answer to Your Honor's question, is you're still going to have a chilling on free speech.

There are still going to be people out there who are not covered by one of these examples who we haven't thought of, and that person is going to be afraid to express opinions.

Justice Kennedy: Well, I suppose if we were going to do that it would be simpler and maybe prudent for us to reexamine our overbreadth rule.

Your client here falls within none of these examples.

He was convicted of having what everyone recognizes as not only child pornography but involving a very small child.

And he knew what it was.

And he... and he conveyed that belief.

Given the fact that it would appear that child pornography is a growing problem, a serious problem on the Internet, maybe we should examine the overbreadth rule and just say that your client cannot make this challenge.

Mr. Diaz: The Court can certainly do that, Justice Kennedy.

Essentially, though, I think what the Court would be doing would be taking the four areas of speech that have been taken out of the First Amendment protection, which is defamation, the fighting words under Brandenburg, Miller, which is obscenity, and the additional extension of Ferber.

Now what we would be doing is carving yet another area of speech out of the First Amendment, and we're just going to continue chipping it away and chipping it away.

Chief Justice Roberts: No.

I don't think that is responsive to Justice Kennedy's point.

You wouldn't be carving it out of the First Amendment.

You would be saying we're going to treat this area like other areas, which would say that whoever is challenging it has to show that they're a problematic case.

In other words, your client is relying... he didn't produce Lolita.

You're relying on the effect on other people, and that is what our overbreadth doctrine allows, if there's a substantial amount of speech that's protected.

And what I understood the question to suggest is that we would wait basically for as-applied challenges when Lolita is being prosecuted and we would hear from them, but not in your case.

Mr. Diaz: That certainly could be done, Mr. Chief Justice.

Again, and as I suggested earlier, the problem with that is that we're not talking about anything less than a criminal statute, a criminal statute that implicates the First Amendment, freedom and thought which this Court since its very existence has said we have to honor and respect, even if people are thinking about nasty or dirty things.

That's what this country is based upon, and the grave concern if we're going to do it on an as-applied challenge, is people who might be afraid to express their views about whether this is or is not obscene.

It's is the parent of a neighborhood group who see a movie and wants to tell everybody about it and say, look--

Justice Alito: Here we have... we have one statute that covers advertising, promoting, presenting, distributing, and soliciting.

Suppose that all of those activities were not lumped together in one statute, and there was a separate provision for each, and suppose that the Court were to conclude that there is a problem with one of them.

Let's say promotes or presents.

Would all of the others fall as well, under the overbreadth doctrine, if they were set out in separate statutory provisions?

Mr. Diaz: --I believe that that would more narrowly tailor the statute, but I don't believe, Justice Alito, that it would solve the problem of chilling speech.

Justice Souter: No, but isn't the problem the problem of your answer to Justice Breyer's hypothetical.

He said, you know, what if we have this appendix and we list... I forget what he said, three dozen examples that the Solicitor General says wouldn't be covered and that sounds fine to us.

Your answer was well, there would still be some examples not covered.

But isn't... isn't the answer to that that there would be some conceivable overbreadth, I suppose, no matter what the appendix said?

Somewhere out there there would be an example not covered that would be the basis for an as-applied challenge, but there wouldn't be substantial overbreadth.

And isn't that the case?

That if Justice Breyer's hypo were in fact the decision of this case, there wouldn't be a fair argument that there is any substantial overbreadth left to the statute, isn't that so?

Mr. Diaz: That... it could be, and that would depend.

I agree with Your Honor, Justice Souter, that we have this world or this universe of overbroad speech, and the appendix would shrink it and make it narrower.

Justice Ginsburg: And rewrite... and essentially rewriting the law, and that's my question about this technique that Justice Breyer has proposed.

This Court is not generally in the business of writing appendices that say well, the statute couldn't apply in this situation, and it couldn't apply and as long as we put those contours around it.

Certainly the Court could write an opinion that would inform Congress why this particular statute as written is overbroad, and explain what kind of statute wouldn't be overbroad.

But for the Court itself, I think that that... I don't know any instance in which we have provided that kind of appendix that said things that are like Traffic, they're okay, and things that are like something else are not okay.

I don't know.

Mr. Diaz: With respect, my initial response to Justice Breyer's suggestion, if you will, was the same as Your Honor, Justice Ginsburg.

I don't know that creating an appendix of examples is going to cure the problem.

I do concede that it would lessen the problem.

We would... we would--

Justice Scalia: Why would it lessen?

I assume whatever you put in an appendix, saying all these other situations that are not before us are not covered.

Isn't that the most blatant dictum?

But... but... and, of course, we're not bound in later cases by our dicta.

But come to think of it, I guess the whole doctrine of overbreadth rests upon dictum, doesn't it?

It... it rests upon our determination in this case, which involves somebody who undoubtedly was selling child porn, and a horrible kind of child porn... we say in this case, oh, we can... we can contemplate other cases, where we would not hold the person guilty.

That is all dictum, too, isn't it?

So I guess the whole doctrine is... is based on dictum.

So we may as well put it in all an appendix.

Let's put our dictum in an appendix.

I agree.

Mr. Diaz: --In answer to Your Honor's question or comment...--

[Laughter]

--the... I agree that the issue of overbreadth is something where we're looking at boundaries.

And that's really what I think the Court does in a situation of overbreadth analysis.

You look at the boundaries.

How much... how far we've gone outside of the boundaries of what is protected.

Chief Justice Roberts: Well, but it's the boundary between what is... what should be protected in relation to what's unprotected.

So what's the ratio between legitimate films like Lolita and illegitimate child pornography?

In other words, is, in fact, the protected material substantial in relation to the law's legitimate sweep?

Mr. Diaz: The problem is we don't have an empirical answer, a mathematic answer to that question.

What we do know is that films like Lolita, American Beauty, and whatnot, which if presented in a certain way can bring people under the coverage of the statute, have received acclaim around the world, I mean all sorts of academy awards.

They're seen time and time again.

They're seen on Netflix.

They're seen on cable TV.

To this day, some of these movies have been around for 30 years.

Justice Breyer: Of course, the point of the... the point of the appendix, which unfortunately has the failing of many charming metaphors, is that it has acquired a life of its own.

[Laughter]

It distracts from the question.

But it... as I read the Solicitor General's interpretation of the statute, and amended it, taking the word "presentment" from its context in Ferber, where it was part of the definition of promotion, I thought that was the appendix.

At least, that's my hypothetical question.

And so whether you like appendices or don't like appendices, you could focus on why isn't it the appendix I'm talking about?

He's filled it with qualifications using the words "knowingly, reasonable", and a context that if it is not purely commercial, as I understood, is at least commercial plus a few things such as bartering.

That was really my question, and you've come back to American Beauty and so forth, and if there's one thing I think his definition keeps out of this discussion, it is American Beauty and Traffic, because I don't see under his interpretation how anyone could conceivably be prosecuted even if he's talking to a group who have never seen a movie.

That isn't a reasonable group of people.

So what is your response to what he said?

Mr. Diaz: My response, Justice Breyer, is that if you take the word "present" and you give it the meaning that it was given in Ferber, you make the statute narrower.

You make it... bring it into more of a constitutionally acceptable realm, but I respectfully do not believe that it cures the entire problem, and my basis for saying that the question of Justice Souter of the Solicitor General.

You know... the concern is, when you don't have lawyers who understand these hypertechnical meanings that the Court is going to give and the interpretations we're going to put on them--

Justice Souter: But isn't the answer to that you may still have some overbreadth left, but it's not substantial?

Most 17 year olds are, in fact, going to realize that the real thing is not going on in, you know, the Lolita movie.

And if we accept that as a factual proposition, which was the Solicitor General's answer, and if we also accept, not by way of appendix but way of rationale in the opinion, that these various activities have got to be given an essentially commercial or quasi-commercial character, so that they don't pick up the conversations with the neighbor, then that's simply a matter of statutory interpretation that could be part of our rationale.

If we accept the factual proposition about what reasonable viewers are likely to know, and we engage in that kind of interpretation following the Solicitor General's view of how this serial list of activities should be construed, don't we eliminate the possibility... wouldn't we eliminate the possibility of substantial overbreadth?

Some things may get by.

There may still be legitimate applied challenges, but substantial overbreadth, would that be left?

Mr. Diaz: --I think it would, but concededly to a lesser degree, because once you make it clear as to what matters are not covered by the statute, it makes it easier for people to conform their conduct and their words accordingly.

The concern that I have is that it still chills a... it still chills free speech.

If a person looks at an appendix or looks at the rationale in the Court's opinion in this case--

Justice Souter: It can, but can you give me an example of a class of activities that would not be, in effect, insulated from indictment by these two steps in the opinion, that would be of substantial character?

Mr. Diaz: --Certainly, and I go back to the question of Justice Breyer which is adolescents, 17 year olds, 18 year olds, who like to look at these types of materials and one of them could simply say to another over the Internet, you know, do you think we can get some hardcore child porn?

He's soliciting child porn from another person, and that individual, that 17 year old kid, who's fantasizing or experimenting with his own sexuality, can go to jail for 5 to 20 years.

And we see that in everyday America, in high schools around the country.

Justice Ginsburg: Do we see them getting prosecuted in any state?

Mr. Diaz: If he's soliciting materials under sub (i) or sub (ii) of the statute, of the pandering provision of the statute, yes.

That person can be prohibited.

Excuse me, that person can be prosecuted.

Justice Ginsburg: I asked you have there been such cases?

A lot of states have pandering laws now, and is the case that you posit a case that has occurred in any of those states?

Mr. Diaz: Your Honor, I cannot cite a specific example, but I can certainly tell Your Honor this... prosecutions from 1997 to 2004 have increased over 452 percent.

The conviction rate--

Justice Ginsburg: Maybe that's because the quantity of material has increased.

Mr. Diaz: --Exactly.

And the conviction rate is 99.6 percent.

And--

Justice Alito: And if one person says to another, can we get some child pornography, how is that solicitation?

Mr. Diaz: --"Can you get me".

Justice Alito: Oh, "can you get me".

Mr. Diaz: "Can you get me".

Justice Alito: And you think that's protected by the First Amendment?

Asking someone for child pornography is protected?

Mr. Diaz: First of all, it may not be protected by the First Amendment, but it shouldn't be captured by this statute, which puts that 17 year old in jail for 5 to 20 years.

Justice Ginsburg: The only thing that limits the statute is the First Amendment.

What else... you say it may not be covered by the First Amendment.

What else gives you a right to challenge the statute?

Mr. Diaz: I don't think that it is necessarily not covered by the First Amendment.

I think certainly the First Amendment... and this Court has held, that we protect salacious thoughts, salacious ideas.

Justice Alito: But it's not thought at that point.

It's a request to obtain contraband, which fuels the production of the contraband.

Is it protected by the First Amendment or not, soliciting child pornography?

Mr. Diaz: I think the First Amendment is implied, but I don't think it becomes criminal conduct until you get to either an attempt, solicitation, or a conspiracy.

You have to do more than just say I would like to get it or can you get it for me, to be guilty of the statute.

Justice Alito: To fall... to fall under the statute or to be protected by the First Amendment or not protected by the First Amendment?

Mr. Diaz: Right.

Justice Alito: Which is it?

Mr. Diaz: To fall within the protection of the First Amendment.

And another example that comes to mind is a person has material which they believe is child pornography.

They give it to somebody else, such as Lolita, for an opinion and they present to it that person.

One of the biggest problems or one of the biggest... the verb that's most objectionable in the statute is "present", because it does not have to have any commercial requirement.

Justice Alito: I mean the model penal code has a general prohibition of soliciting illegal activities.

Are you saying that that's... that provision violates the First Amendment?

Because it's just words?

Mr. Diaz: Solicitation is a crime in and of itself, and talking about or expressing a desire to obtain is not... doesn't quite go to the level of solicitation or intent, where there has to be a proximity in time, in immediacy, and a certain geographical proximity between the words and the comment that you intend.

Justice Alito: But I thought the word in the statute is "solicit".

Mr. Diaz: Well, there's "solicit" and there's also "present".

It works in both directions.

Justice Alito: If you're asking somebody for child pornography, you're not presenting child pornography.

Mr. Diaz: Correct.

I agree.

Thank you, Your Honor.

Rebuttal of Paul D. Clement

Chief Justice Roberts: Thank you, Mr. Diaz.

General Clement, you have three minutes remaining.

Mr. Clement: Thank you, Mr. Chief Justice.

Overbreadth, as this court has reminded us any number of times, is strong medicine, and that is why, even in the First Amendment context, as-applied challenges remain the basic building blocks of adjudication.

Rejection of this overbreadth challenge here does not mean that the courts will not be open to here as-applied challenges going forward.

Of course, the Respondent here has no claim that the statute is unconstitutional as applied to him.

Justice Kennedy: Can we reject the overbreadth challenge here and still leave an overbreadth doctrine for some other cases?

I'm not sure how we could do that.

Mr. Clement: Well, I think you could, Justice Kennedy.

You could... I mean the burden here is on the challenger who doesn't say that the statute's unconstitutional as-applied to them to show substantial overbreadth in absolute terms and relative to the statute's legitimate sweep.

And it's interesting that neither Respondent nor the court of appeals ever engaged in that latter inquiry.

And that's a critical inquiry.

Justice Ginsburg: How is it different it would be strange to trust out the document... the doctrine as I... as I understand it is what we relied on when we had the predecessor to this statute before.

Mr. Clement: Justice Ginsburg I'm not urging that you get rid of overbreadth doctrine once and for all... probably be in the government's interest.

I am simply saying that if you apply overbreadth analyses, the way it supposed to be applied it's not satisfied here.

It's not just enough for you to envision a couple of hypotheticals.

It has to be the overbreadth has to be substantial relative to the legitimate sweep of the statute.

This Court in Virginia against Hicks said faulted the lower court opinion because it had no analyses whatsoever of valid versus invalid applications.

The proportionality aspect of this courts overbreadth jurisprudence was ignored entirely.

That could be verbatim the holding of this case.

The 11 circuit did engage in that relative analysis.

When my brother was asked for empirical evidence about the comparison he said he didn't have any.

With all due respect, I think that's fatal to his case.

Justice Ginsburg: How did that occur in... free speech coalition.

Mr. Clement: I think, in the way I would explain that is I didn't think you get... you found there was such absolute overbreadth that you didn't even reach the proportionality inquiry.

In any invent Hicks was decided afterwards, and I think Hicks makes very clear that you have to have both absolute and relative.

I would say one last thing, though.

This is first and foremost you start with the facts of this case and the facts of this case I think caution against reading the word presents out of the statute or reading it unduly narrowly.

The gravamen of the pandering here was not just the offer of pictures of this individual and his daughter, but was his claim that I can post these actual images of child pornography on this group site because I'm for real and I'm not an undercover agent.

Now that seems to be within the epicenter of the statute but it's not for profit.

It was doing it to establish his bona fide.

Thank you.

Chief Justice Roberts: Thank you, general, the case is submitted.