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United States: Supreme Court Upholds Constitutionality of Child Pornography Law

(June 2, 2008) On May 19, the Supreme Court ruled that a federal statute that criminalizes the pandering of child pornography does not violate the United States Constitution.

Section 2252A(a)(3)(B) of the U.S. Criminal Code prohibits offers to provide or requests to obtain obscene material depicting actual or virtual children engaged in specified sexually explicit conduct, and any material depicting actual children engaged in sexually explicit conduct. Respondent Michael Williams pleaded guilty to this offense, but reserved the right to challenge his conviction's constitutionality. The district court rejected his challenge, but the U.S. Court of Appeals for the Eleventh Circuit reversed, finding the statute both overbroad under the First Amendment and impermissibly vague under the Due Process Clause. The Supreme Court accepted review of the case, and reversed the judgment of the Eleventh Circuit, holding that the statute is neither overly broad nor impermissibly vague.

The Court first interpreted the statute to require that the Government either establish (1) that the defendant actually believed the material at issue was child pornography, or (2) that he intended the person to whom he offered it to believe the material to be child pornography, or (3) that the material showed sexually explicit conduct that a reasonable viewer would believe was actually engaged in on camera.

The Court found the statute interpreted in this way was not overbroad under the First Amendment, because it only criminalizes offers to provide, or requests to obtain, material that is illegal to possess, and such speech categorically falls outside First Amendment protection.

The Court also found the statute not impermissibly vague for Due Process purposes. The Court found that the statute adequately gives the public notice of what is prohibited, namely pandering material that the speaker believes, or intends the listener to believe, is child pornography. The Court said that what makes a statute impermissibly vague is not the difficulty of proving a violation, but the indeterminacy of what is prohibited. The Court said that while the defendant's state of mind may be a difficult factual question for the Government to prove, what is prohibited by the statute is not indeterminate. (United States v. Williams, No. 06-694 (May 19, 2008), available at