553 U. S. ---

May 19, 2008

    Justice Scalia delivered the opinion of the Court.

    Section 2252A(a)(3)(B) of Title 18, United States Code, criminalizes, in certain specified circumstances, the pandering or solicitation of child pornography. This case presents the question whether that statute is overbroad under the First Amendment or impermissibly vague under the Due Process Clause of the Fifth Amendment .

    We have long held that obscene speech—sexually explicit material that violates fundamental notions of decency—is not protected by the First Amendment . But to protect explicit material that has social value, we have limited the scope of the obscenity exception, and have overturned convictions for the distribution of sexually graphic but nonobscene material. 

    Over the last 25 years, we have confronted a related and overlapping category of proscribable speech: child pornography. This consists of sexually explicit visual portrayals that feature children. We have held that a statute which proscribes the distribution of all child pornography, even material that does not qualify as obscenity, does not on its face violate the First Amendment . Moreover, we have held that the government may criminalize the possession of child pornography, even though it may not criminalize the mere possession of obscene material involving adults.

    The broad authority to proscribe child pornography is not, however, unlimited. Four Terms ago, we held facially overbroad two provisions of the federal Child Pornography Protection Act of 1996 (CPPA). The first of these banned the possession and distribution of “ ‘any visual depiction’ ” that “ ‘is, or appears to be, of a minor engaging in sexually explicit conduct,’ ” even if it contained only youthful-looking adult actors or virtual images of children generated by a computer. This was invalid, we explained, because the child-protection rationale for speech restriction does not apply to materials produced without children. The second provision at issue in Free Speech Coalition criminalized the possession and distribution of material that had been pandered as child pornography, regardless of whether it actually was that. A person could thus face prosecution for possessing unobjectionable material that someone else had pandered. We held that this prohibition, which did “more than prohibit pandering,” was also facially overbroad.

    After our decision in Free Speech Coalition, Congress went back to the drawing board and produced legislation with the unlikely title of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003. We shall refer to it as the Act. Section 503 of the Act reads as follows:

“(a) Any person who—
“(3) knowingly— .     .     .     .

“(B) advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains—
“(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or
“(ii) a visual depiction of an actual minor engaging in sexually explicit conduct,     .     .     .     .

“shall be punished as provided in subsection (b).”

Section 2256(2)(A) defines “sexually explicit conduct” as“actual or simulated—
“(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
“(ii) bestiality;
“(iii) masturbation;
“(iv) sadistic or masochistic abuse; or
“(v) lascivious exhibition of the genitals or pubic area of any person.”

Violation of §2252A(a)(3)(B) incurs a minimum sentence of 5 years imprisonment and a maximum of 20 years. 

    The Act’s express findings indicate that Congress was concerned that limiting the child-pornography prohibition to material that could be proved to feature actual children, as our decision in Free Speech Coalition required, would enable many child pornographers to evade conviction. The emergence of new technology and the repeated retransmission of picture files over the Internet could make it nearly impossible to prove that a particular image was produced using real children—even though “[t]here is no substantial evidence that any of the child pornography images being trafficked today were made other than by the abuse of real children,” virtual imaging being prohibitively expensive.

    The following facts appear in the opinion of the Eleventh Circuit. On April 26, 2004, respondent Michael Williams, using a sexually explicit screen name, signed in to a public Internet chat room. A Secret Service agent had also signed in to the chat room under the moniker “Lisa n Miami.” The agent noticed that Williams had posted a message that read: “Dad of toddler has ‘good’ pics of her an [sic] me for swap of your toddler pics, or live cam.” The agent struck up a conversation with Williams, leading to an electronic exchange of nonpornographic pictures of children. (The agent’s picture was in fact a doctored photograph of an adult.) Soon thereafter, Williams messaged that he had photographs of men molesting his 4-year-old daughter. Suspicious that “Lisa n Miami” was a law-enforcement agent, before proceeding further Williams demanded that the agent produce additional pictures. When he did not, Williams posted the following public message in the chat room: “HERE ROOM; I CAN PUT UPLINK CUZ IM FOR REAL—SHE CANT.” Appended to this declaration was a hyperlink that, when clicked, led to seven pictures of actual children, aged approximately 5 to 15, engaging in sexually explicit conduct and displaying their genitals. The Secret Service then obtained a search warrant for Williams’s home, where agents seized two hard drives containing at least 22 images of real children engaged in sexually explicit conduct, some of it sadomasochistic.

    Williams was charged with one count of pandering child pornography under §2252A(a)(3)(B) and one count of possessing child pornography under §2252A(a)(5)(B). He pleaded guilty to both counts but reserved the right to challenge the constitutionality of the pandering conviction....

    According to our First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a substantial amount of protected speech. The doctrine seeks to strike a balance between competing social costs. On the one hand, the threat of enforcement of an overbroad law deters people from engaging in constitutionally protected speech, inhibiting the free exchange of ideas. On the other hand, invalidating a law that in some of its applications is perfectly constitutional—particularly a law directed at conduct so antisocial that it has been made criminal—has obvious harmful effects. In order to maintain an appropriate balance, we have vigorously enforced the requirement that a statute’s overbreadth be substantial, not only in an absolute sense, but also relative to the statute’s plainly legitimate sweep.

    The first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers. Generally speaking, §2252A(a)(3)(B) prohibits offers to provide and requests to obtain child pornography. The statute does not require the actual existence of child pornography. In this respect, it differs from the statutes in Ferber, Osborne, and Free Speech Coalition, which prohibited the possession or distribution of child pornography. Rather than targeting the underlying material, this statute bans the collateral speech that introduces such material into the child-pornography distribution network. Thus, an Internet user who solicits child pornography from an undercover agent violates the statute, even if the officer possesses no child pornography. Likewise, a person who advertises virtual child pornography as depicting actual children also falls within the reach of thestatute.

    The statute’s definition of the material or purported material that may not be pandered or solicited precisely tracks the material held constitutionally proscribable in Ferber and Miller: obscene material depicting (actual or virtual) children engaged in sexually explicit conduct, and any other material depicting actual children engaged in sexually explicit conduct.

    A number of features of the statute are important to our analysis:

    First, the statute includes a scienter requirement....Here “knowingly” introduces the challenged provision itself, making clear that it applies to that provision in its entirety; and there is no grammatical barrier to reading it that way.

    Second, the statute’s string of operative verbs—“advertises, promotes, presents, distributes, or solicits”—is reasonably read to have a transactional connotation. That is to say, the statute penalizes speech that accompanies or seeks to induce a transfer of child pornography—via reproduction or physical delivery—from one person to another. For three of the verbs, this is obvious: advertising, distributing, and soliciting are steps taken in the course of an actual or proposed transfer of a product, typically but not exclusively in a commercial market. When taken in isolation, the two remaining verbs—“promotes” and “presents”—are susceptible of multiple and wide-ranging meanings. In context, however, those meanings are narrowed by the commonsense canon of noscitur a sociis—which counsels that a word is given more precise content by the neighboring words with which it is associated.

    To be clear, our conclusion that all the words in this list relate to transactions is not to say that they relate to commercial transactions. One could certainly “distribute” child pornography without expecting payment in return. Indeed, in much Internet file sharing of child pornography each participant makes his files available for free to other participants—as Williams did in this case. “Distribution may involve sophisticated pedophile rings or organized crime groups that operate for profit, but in many cases, is carried out by individual amateurs who seek no financial reward.” To run afoul of the statute, the speech need only accompany or seek to induce the transfer of child pornography from one person to another.

    Third, the phrase “in a manner that reflects the belief” includes both subjective and objective components. “[A] manner that reflects the belief” is quite different from “a manner that would give one cause to believe.” The first formulation suggests that the defendant must actually have held the subjective “belief” that the material or purported material was child pornography. Thus, a misdescription that leads the listener to believe the defendant is offering child pornography, when the defendant in fact does not believe the material is child pornography, does not violate this prong of the statute....

    Fourth, the other key phrase, “in a manner . . . that is intended to cause another to believe,” contains only a subjective element: The defendant must “intend” that the listener believe the material to be child pornography, and must select a manner of “advertising, promoting, presenting, distributing, or soliciting” the material that he thinks will engender that belief—whether or not a reasonable person would think the same.

    Fifth, the definition of “sexually explicit conduct” (the visual depiction of which, engaged in by an actual minor, is covered by the Act’s pandering and soliciting prohibition even when it is not obscene) is very similar to the definition of “sexual conduct” in the New York statute we upheld against an overbreadth challenge in Ferber. That defined “sexual conduct” as “ ‘actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.’ ” Congress used essentially the same constitutionally approved definition in the present Act. If anything, the fact that the defined term here is “sexually explicit conduct,” rather than (as in Ferber) merely “sexual conduct,” renders the definition more immune from facial constitutional attack. “[S]imulated sexual intercourse” (a phrase found in the Ferber definition as well) is even less susceptible here of application to the sorts of sex scenes found in R-rated movies—which suggest that intercourse is taking place without explicitly depicting it, and without causing viewers to believe that the actors are actually engaging in intercourse. “Sexually explicit conduct” connotes actual depiction of the sex act rather than merely the suggestion that it is occurring. And “simulated” sexual intercourse is not sexual intercourse that is merely suggested, but rather sexual intercourse that is explicitly portrayed, even though (through camera tricks or otherwise) it may not actually have occurred. The portrayal must cause a reasonable viewer to believe that the actors actually engaged in that conduct on camera. Critically, §2252A(a)(3)(B)(ii)’s requirement of a “visual depiction of an actual minor” makes clear that, although the sexual intercourse may be simulated, it must involve actual children (unless it is obscene). This change eliminates any possibility that virtual child pornography or sex between youthful-looking adult actors might be covered by the term “simulated sexual intercourse.”

    We now turn to whether the statute, as we have construed it, criminalizes a substantial amount of protected expressive activity.

    Offers to engage in illegal transactions are categorically excluded from First Amendment protection. One would think that this principle resolves the present case, since the statute criminalizes only offers to provide or requests to obtain contraband—child obscenity and child pornography involving actual children, both of which are proscribed and the proscription of which is constitutional. The Eleventh Circuit, however, believed that the exclusion of First Amendment protection extended only to commercial offers to provide or receive contraband: “Because [the statute] is not limited to commercial speech but extends also to non-commercial promotion, presentation, distribution, and solicitation, we must subject the content-based restriction of the PROTECT Act pandering provision to strict scrutiny … .”

    This mistakes the rationale for the categorical exclusion. It is based not on the less privileged First Amendment status of commercial speech, but on the principle that offers to give or receive what it is unlawful to possess have no social value and thus, like obscenity, enjoy no First Amendment protection. Many long established criminal proscriptions—such as laws against conspiracy, incitement, and solicitation—criminalize speech (commercial or not) that is intended to induce or commence illegal activities. Offers to provide or requests to obtain unlawful material, whether as part of a commercial exchange or not, are similarly undeserving of First Amendment protection. It would be an odd constitutional principle that permitted the government to prohibit offers to sell illegal drugs, but not offers to give them away for free.

    To be sure, there remains an important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality. The Act before us does not prohibit advocacy of child pornography, but only offers to provide or requests to obtain it. There is no doubt that this prohibition falls well within constitutional bounds....

    In sum, we hold that offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment....

    Child pornography harms and debases the most defenseless of our citizens. Both the State and Federal Governments have sought to suppress it for many years, only to find it proliferating through the new medium of the Internet. This Court held unconstitutional Congress’s previous attempt to meet this new threat, and Congress responded with a carefully crafted attempt to eliminate the First Amendment problems we identified. As far as the provision at issue in this case is concerned, that effort was successful.

    The judgment of the Eleventh Circuit is reversed.

Justices Souter and Ginsburg, dissenting...

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