Ed Brayton is a freelance writer and speaker. He is the co-founder and president of 
This week's ruling in US v Williams was widely reported in the media as being a case about child porn, but that is actually rather incidental to the reality of the case. Yes, it was immediately about evaluating the constitutionality of a law designed to punish the distribution of child porn, but the ruling actually has a much broader and far-reaching effect than that. In effect, the Supreme Court has declared a new exception to the first amendment: a solicitaton to crime exception.
The ruling was 7-2, with Scalia writing the majority opinion, which was joined by Chief Justice Roberts and Justices Alito, Kennedy, Thomas, Stevens and Breyer. Stevens wrote a concurring opinion, joined by Justice Breyer and Justice Souter wrote a dissent, joined by Justice Ginsburg. That's an unusual lineup, to be sure.
In a case like this, one of the first places I would turn for analysis is Eugene Volokh, a first amendment expert who is a firm supporter of a broad reading of free speech protection. And he writes that he thinks the decision is a reasonable and limited one that makes the key distinction:
So this will make clear that solicitation, offer, and attempt to commit a wide range of crimes -- including the distribution or receipt of child pornography -- is indeed criminally punishable. And, contrary to Justice Souter's dissent (joined by Justice Ginsburg), I don't see how this will materially change the protection offered to distribution of nonobscene pictures that don't actually depict real children, but instead show computer- or hand-drawn children, or adults that look like children: A distributor or recipient may avoid liability under the statute by simply offering or asking for "pictures of adults who look underage" or "computer-generated pictures that look like children."Such offers or solicitations won't "reflect[] the belief, or [be] intended to cause another to believe" that the material is a visual depiction of an actual child engaging in sex. (Of course, if the material does prove to be actual child porn involving actual children, and the recipient knows or learns that the material so qualifies, he might be liable for possession of actual child porn, but that would be true regardless of the solicitation/offer ban.) And to the extent that such offers or solicitations may be said to reflect a belief or are intended to cause a belief that the material is obscene -- a complicated matter given the vagueness of the term "obscene" -- the problems that the law poses are not materially different from the problems posed by obscenity law in the first place.
So the opinion strikes me as generally quite sound, not much of a change in child pornography law, and an important but fully expected recognition of the solicitation/offer exception. The recognition of this exception requires the Court to define and police the "important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality," the latter of which is protected under Brandenburg v. Ohio and many other cases; but the Court's recognition of this distinction, which I just quoted, and the necessity for such a distinction, leads me not to worry too much about the future on this score. So on balance it's not surprising to me that the result was a lopsided 7-2.
The last paragraph really is key. The majority makes a point of distinguishing between an actual solicitation to commit a crime and the mere advocacy of doing so or advocacy of changing the law. There is a very important distinction between saying "I think people should be able to buy and sell drugs all they want" and "do you want to buy some cocaine."
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Then according to this logic, the FBI's child porn honeypot is illegal, unless there is an exception for law enforcement in the law.
http://dererumnatura.us/archives/2008/03/fbi-arresting-p.html
Posted by: Reed A. Cartwright | May 22, 2008 10:06 AM
Actually, it looks like "do you want to buy some cocaine" was already an exception to First Amendment protection (the Opinion cites Pittsburgh Press Co. v. Pittsburgh Comm'n on Hu-man Relations, 413 U. S. 376, 388 as an example). The correct analogy is "do you want some cocaine," where a commercial transaction is not necessary to lose the protection.
In other words, offering (or requesting) child porn for free is not protected speech.
Posted by: W. Kevin Vicklund | May 22, 2008 10:10 AM
This also puts the thugs who post names and addresses of people they don't like much closer to the line. If another abortion doctor ends up being shot, for instane, that website (don't recall the name) is in trouble.
Posted by: kehrsam | May 22, 2008 10:16 AM
I feel marginally better knowing Ed and Eugene Volokh are okay with this ruling. But I must admit a certain amount of nervousness. The reason being, it requires the government to judge intention.
For example if I said, "would you like some pictures of nude children" with the intention of selling, giving, or trading such images, that would be illegal. But if I said the exact same thing and my intention was only to ascertain the person's level of interest, say to satisfy my own curiosity, that would be legal.
This is the same problem I have with hate crime laws. It requires courts to be mind readers. I know courts must sometimes consider motives and that examples probably exist where it's right and good for them to do so (though none are coming to mind at the moment). It just seems that when the determining factor for whether or not an action is illegal is what a person is thinking at the time then there is a high potential for abuse. I get doubly nervous when that action is speech.
Posted by: Abby Normal | May 22, 2008 11:31 AM
If I understand correctly, it also makes it criminal for a person to offer a photograph of a person the offerer knows to be an adult engaging in sexual activity, if the offerer says that the person is a minor. In other words, the difference between a legal act and an illegal act is calling the legal act by the name of an illegal act.
Posted by: Mark P | May 22, 2008 12:24 PM
Ed said "There is a very important distinction between saying "I think people should be able to buy and sell drugs all they want" and "do you want to buy some cocaine.".
Yeah, much like the distinction between saying "I think gays should be put to death" and saying "If a man lies with another man as with a woman he must be put to death".
Posted by: Priya Lynn | May 22, 2008 3:42 PM
No, Priya, both of your examples are statements of policy preferences, and therefore legal. The illegal statement would be, "Do you want to go down to the gay bar and roll some fags?"
Posted by: kehrsam | May 22, 2008 3:53 PM
Not seeing the difference Kersham. Saying "Do you want to go down to the gay bar and roll some fags" and saying "fags must be killed" are the same thing.
Posted by: Priya Lynn | May 22, 2008 4:16 PM
To put it another way kersham, the Leviticus paragraph isn't a statement of policy preference, its an order to murder people.
Posted by: Priya Lynn | May 22, 2008 4:23 PM
Great, now this again.
Rather than engaging these ridiculous assertions by Priya, I want to say that I now want to shake kehrsam's hand for the "roll some fags" bit. (I have to assume that the wording was intentional; if it's not, I'll just be disappointed.)
Posted by: The Christian Cynic | May 22, 2008 4:47 PM
I think the solicitation to crime exception is fine. It is far more troubling that sexual depictions of adults who look like children or even imaginary drawings can be termed child pornography and criminalized. The reason (real) child pornography is (and should be) a crime is that it has a victim. But now a new concept is being created - victimless child pornography. I see no justification in creating yet another victimless crime. So we will now punish pedophiles because they are pedophiles, not because they act on their pedophilia? And punish suppliers of substitutes for child pornography? That's terrible policy - economic logic would predict that it would increase the demand for real child pornography, and possibly also increase the rate of child rape. What legal standard is used to let such laws stand? Irrational basis?
Posted by: bullfighter | May 22, 2008 4:49 PM
No, it is a law, and directed to the civil authorities, not to any individual. Since it is merely a proposed law for our society, it is a policy preference. Just because the nutjobs cite it out of context does not remove it from its proper context.
In any case, the Supremes are dealing here with incitement to crimes. Were Leviticus the law, following it's prescriptions would not constitute a crime.
Posted by: kehrsam | May 22, 2008 4:49 PM
Cynic: I'm afraid credit for that goes to my 1L Crim prof who wanted a hypothetical that solicited a crime using language that could credibly be claimed did nothing of the kind. I forget which of my classmates came up with that. It was great to use it after 19 years of holding the line in reserve.
Posted by: kehrsam | May 22, 2008 4:54 PM
bullfighter, if I understand it, the decision did not criminalize childless child porn. It just made it illegal if you call it child porn. So long as the solicitor refers to it as child-like porn, or some other label that acknowledges it's not real child porn, they're golden.
(Why do I have the feeling I'm going to be getting a call from HR any minute now?)
Posted by: Abby Normal | May 22, 2008 5:33 PM
re legality of proposal to "roll some fags"
But what if the "fags" are joints?
- Charles
Posted by: ctw | May 22, 2008 5:59 PM
I think I've about reached the end of my rope with Priya Lynn constantly hijacking threads to assert the same stupid argument over and over again. It's time for you to find someplace else to spew your bullshit.
Posted by: Ed Brayton | May 22, 2008 6:31 PM
Sorry if I missed this in some posts etc. but is normal (certainly common enough) family intimacy and interaction (non-sexual), naturalist lifestyles, recording precious moments in time in photos, etc. in danger? Some families are modest as heck, some let it all hang out so to speak. Simply said is non-sexual intimacy now a possible crime? Heck I know loving very good and safe teachers who are scared to hug a needy 3rd grader as it is now. No shit!
I cannot describe herein all the ill I wish child exploiters, abusers, and/or molesters but it offends my sense of liberty that some person who is a hung-up RWA may distort what other cultures(e.g., Germany) consider legitimate healthy normal family and community living. Am I chicken-little?
PS - it just struck me - is asking this technical question a crime? put me under official suspicion? Guess any time the police state has authority to use words as basis for crime prosecution, or has authority to officially value judge personal lifestyles, it does scare me. Hope I am being silly.
Posted by: ConcernedJoe | May 22, 2008 9:29 PM
ConcernedJoe:
Only sexualy-explicit materials depicting actual children or obscene* sexually depicting children (real or not) are subject to this law. To be in violation, it has to be clear that you are in fact offering or seeking such materials, not merely asking questions or making statements about what is or should be illegal. So family pictures shouldn't be a problem (though naturalists who manage to take a snapshot of a young child hanging onto a 'leg' might want to destroy the picture just to be safe).
*Even though obscenity is difficult to determine, the courts have upheld sexual obscenity laws. I don't claim to know what classifies as obscene.
Posted by: W. Kevin Vicklund | May 23, 2008 1:47 AM
W Kevin Vicklund - "I don't know what pornography is, but I'll know when I see it." - DJ
PS "naturalists"? - What like Sir David Attenborough? Perhaps you meant "naturists" or "nudist". Sorry for being so pedantic but it tickled me.
Posted by: DingoJack | May 23, 2008 2:08 AM
Here's why they can't outlaw animation or other fictional accounts:
What's worse than raping a kid?
How'bout murder?
A raped kid is at least alive, and with counseling and possibly some medicine, has a reasonable chance of healing and living a normal life.
A murder victim is dead as a doornail, and no amount of medicine, surgery, etc. will heal them up. Their life is over. Zero percent probability of recovering from a successful act of murder.
And here it should be noted that any sex act involving an adult and s child, with a reasonable exception for highschool sweethearts a short distance either side of the age divide, qualifies as rape. It's rape even when it's not forcible, because the age differential permits a degree of manipulation that effectively circumvents the free will of the kid just as surely as a loaded gun or other weapon.
So. No sane person would have the slightest problem criminalizing, prosecuting, and punishing severely, any person who is engaged in the supply chain for kiddie porn, and since supply follows demand, doing likewise for even simple possession. And the same case obtains with respect to "snuff" movies and pictures: photographs or video of actual murders. And the same case should as well obtain with respect to photos or video of actual rape of adults, actual torture, and so on: crimes of violence with actual victims, with the obvious exception of such photos or films that are taken specifically for the purpose of being turned over to authorities for prosecution of the actual crimes.
But now we come to fictionalized depictions, and the reason why syntho kiddie porn (made without real kids, e.g. animations, written fiction, drawings, etc.) can't be outlawed.
If that stuff was outlawed, it would necessarily follow that fictionalized representations of more severe types of violent crime would also become illegal. If nothing else, it would be necessary by way of the equal protection of the law. And the reason for that is: if the deep structure of the rationale for criminalizing fiction is that the fiction encourages people to commit the real act, then protecting kids from rapes inspired by kiddie porn leaves adults unprotected from crimes of rape inspired by similar media, and leaves people of all ages unprotected from acts of murder inspired by similar media.
And you know who would be put out of business by that one. Riiiiight. The ENTIRE American entertainment industry with the possible exception of Pixar.
Violent media and sexual media, that are synthesized or fictional, should all be subject to exactly the same standards. Either all of it is OK or all of it is not-OK. And either way is fine with me; personally I have no interest in either and I can exercise my right to not watch any of it. But the absolute hypocrisy by which the average child watches three thousand acts of murder on prime time TV every year, while Janet Jackson's bare breast is cause for national uproar, is disgusting. Almost as disgusting as child porn.
Posted by: g347 | May 23, 2008 2:21 AM
Dingojack but we have to protect yourselves from those perverted atheist naturalists like PZ Myers who want to eat our babies don't we!? On the other hand naturists are usually more benign pot smoking half dead old people and less a threat to all that is right and holy. :-) (thanks Dj -- finger mind connections - old and frayed)
Seriously: WKV we have no pictures but wish I had a dime for every leg cling our kids give us in our various states of dress. And if that is considered bad for society or a perverted thing or a thing to hide if we did capture those precious fleeting moments in photos I am REALLY nauseated.
Oh well .. "drug abuse" is to a total waste and stupid in general -- a bad thing -- so is cigarette smoking -- all to be discouraged in my opinion. The war on drugs however - now that is seriously obscene not only for the lives it really ruins, and the sophisticated criminal elements it fosters, but also for the inroads it gives the police state to subvert our freedoms. If you get my drift as it applies herein.
Guess I am just cautious about laws that give the state power to judge people's behavior when that state is promoting and cultivating fears about bad things for justification for more power.
And BTW I think for really and deeply that certain religious sects, churches, parents are abusing and harming children in their indoctrination and harming society big time in general by keeping the lowest common denominator low when it comes to social, political, and even scientific progress. Abuse comes in many forms; we attack however that which fits our Puritan mental model of sin.
Posted by: ConcernedJoe | May 23, 2008 5:35 AM