United States v. Williams

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
_____________________ ELEVENTH CIRCUIT
APR 6, 2006
No. 04-15128 THOMAS K. KAHN
_____________________ CLERK

D. C. Docket No. 04-20299-CR-DMM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL WILLIAMS,

Defendant-Appellant.

_____________________

Appeal from the United States District Court for
the Southern District of Florida
______________________

(April 6, 2006)

Before BARKETT, WILSON and REAVLEY*, Circuit Judges.

REAVLEY, Circuit Judge:

*
Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth Circuit, sitting by
designation.
 Michael Williams appeals his conviction for promotion of child

pornography under 18 U.S.C. § 2252A(a)(3)(B) on the grounds of facial

unconstitutionality. For this reason, we reverse that conviction. Williams was also

convicted of possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B),

and he appeals his sentence for that offense on the grounds that the court

unconstitutionally enhanced his sentence under a mandatory guidelines scheme in

violation of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).

Because there was no reversible Booker error, we affirm Williams’s sentence of

60-months’ imprisonment.

I. The Charges

On April 26, 2004, as part of an undercover operation aimed at combating

child exploitation on the Internet, United States Secret Service Special Agent (SA)

Timothy Devine entered an Internet “chat” room using the screen name

“Lisa_n_Miami” (LMN). SA Devine observed a public message posted by a user

employing a sexually graphic screen name, which was later traced to the defendant

Williams. Williams’s public message stated that “Dad of toddler has ‘good’ pics

of her an [sic] me for swap of your toddler pics, or live cam.” SA Devine as LNM

engaged Williams in a private Internet chat during which they swapped non-

pornographic photographs. Williams provided a photograph of a two to three-

2
year-old female lying on a couch in her bathing suit, and five photographs of a one

to two-year-old female in various non-sexual poses, one of which depicted the

child with her breast exposed and her pants down just below her waistline. LNM

sent a non-sexual photo of a college-aged female digitally regressed to appear ten

to twelve years old, who LNM claimed was her daughter.

After the initial photo exchange, Williams claimed that he had nude

photographs of his four-year-old daughter, stating “I’ve got hc [hard core] pictures

of me and dau, and other guys eating her out - do you??” Williams asked for

additional pictures of LNM’s daughter. When these pictures were not received,

Williams accused LNM of being a cop. LNM responded by accusing Williams of

being a cop. After repeating these accusations in the public part of the chat room,

Williams posted a message stating “HERE ROOM; I CAN PUT UPLINK CUZ IM

FOR REAL -SHE CANT.” The message was followed by a computer hyperlink,

which SA Devine accessed. The computer hyperlink contained, among other

things, seven images of actual minors engaging in sexually explicit conduct. The

nude children in the photos were approximately five to fifteen years old,

displaying their genitals and/or engaged in sexual activity.

Secret Service agents executed a search warrant of Williams’s home. Two

computer hard drives seized during the search held at least twenty-two images of

3
actual minors engaged in sexually explicit conduct or lascivious display of

genitalia. Most of the images depicted prepubescent children and also depicted

sado-masochistic conduct or other depictions of pain.

Williams was charged with one count of promoting, or “pandering,”

material “in a manner that reflects the belief, or that is intended to cause another to

believe,” that the material contains illegal child pornography in violation of 18

U.S.C. § 2252A(a)(3)(B), which carries a sixty-month mandatory minimum

sentence. Williams was also charged with one count of possession of child

pornography under 18 U.S.C. § 2252A(a)(5)(B).

Williams filed a motion to dismiss the pandering charge on the grounds that

18 U.S.C. § 2252A(a)(3)(B) is unconstitutionally overbroad and vague. While the

motion was pending before the trial court, the parties reached a plea agreement by

which Williams would plead guilty to both counts but reserve his right to

challenge the constitutionality of the pandering provision on appeal. The court

sentenced Williams to sixty-months’ imprisonment for the pandering charge and

sixty months for the possession charge, to be served concurrently.

II. Williams’s Facial Challenge to 18 U.S.C. § 2252A(a)(3)(B)

A. Standard of Review

4
 We review a district court’s conclusion as to the constitutionality of a

challenged statute de novo.1

B. The Child Pornography Problem

In this case, we consider the constitutionality of a law aimed at curbing the

promotion, or “pandering,”2 of child pornography. Relevant to this case, there are

two types of child pornography. Roughly speaking, "actual" or “real” child

pornography depicts true minors engaged in sexual conduct. In contrast, "virtual"

child pornography depicts what appear to be actual minors engaged in sexual

conduct, but in reality consists of computer-generated or enhanced images. Child

pornography images of both types are typically circulated through the Internet.

While society has benefitted greatly from the technological advances of the last

1
United States v. Panfil, 338 F.3d 1299, 1300 (11th Cir. 2003).
2
“Pandering” is defined as the catering to or exploitation of the weaknesses of others,
especially “to provide gratification for others' desires.” See MERRIAM WEBSTER ONLINE
DICTIONARY , http://www.m-w.com (last visited March 23, 2006). As a legal concept, pandering
is most commonly associated with prostitution. In that context, pandering provisions are statutes
penalizing various acts by intermediaries who engage in the commercial exploitation of
prostitution and are aimed at those who, as agents, promote prostitution rather than against the
prostitutes themselves. The term pandering, in some instances, is applied by Congress and the
courts to the promotion of obscenity. See, e.g., 39 U.S.C. § 3008 (prohibiting pandering
advertisements of sexually provocative materials by mail), Ginzburg v. United .States, 383 U.S.
463, 86 S. Ct. 942 (1966) (considering obscene nature of erotically advertised publications).
Congress has characterized both the child pornography regulation at issue in this case (18 U.S.C.
2252A(a)(3)(B)) and its unconstitutional predecessor (18 U.S.C. § 2256(8)(D) (1996)) as
“pandering” provisions.

5
decade, an unfortunate byproduct of sophisticated imaging technology and the rise

of the Internet has been the proliferation of pornography involving children.3

The anonymity and availability of the online world draws those who view

children in sexually deviant ways to websites and chat rooms where they may

communicate and exchange images with other like-minded individuals. The result

has been the development of a dangerous cottage industry for the production of

child pornography as well as the accretion of ever-widening child pornography

distribution rings.4 Our concern is not confined to the immediate abuse of the

children depicted in these images, but is also to enlargement of the market and the

universe of this deviant conduct that, in turn, results in more exploitation and

abuse of children. Regulation is made difficult, not only by the vast and sheltering

landscape of cyberspace, but also by the fact that mainstream and otherwise

3
Total federal prosecutions of child pornography cases increased more than 452% from
1997 to 2004. Statement of Laura H. Parsky, Deputy Asst. Attorney General, Criminal Division
before the Comm. On Commerce, Science, and Transportation, United States Senate Concerning
Protecting Children on the Internet. January 19, 2006.
4
In 1998, police cracked the “Wonderland Club,” an Internet child pornography ring that
involved members across twelve countries, and whose “chairman” was an American, uncovering
some 750,000 images of children. Membership rules required each member to possess at least
10,000 images of pre-teen children and to agree to exchange them with other members. Other
rings promote the worst imaginable forms of child pornography, such as “custom” child
pornography (images of child rape created to order for the consumer) and “real time” child
pornography, where members may watch the online rape of children as it occurs. In early 2006,
federal authorities shut down an Internet web site called “Kiddypics & Kiddyvids” that streamed
video of live child molestations involving children as young as eighteen months.

6
innocuous images of children are viewed and traded by pedophiles as sexually

stimulating.

Over the years, Congress has, by large bipartisan majorities, enacted

legislation designed to punish those who produce, peddle, or possess child

pornography. Congress has struggled to draft legislation that captures the truly

objectionable child-exploitative materials while staying within the boundaries of

the Supreme Court’s First Amendment jurisprudence. The protection of our

children against sexual abuse and predatory pedophiles is of extraordinary

importance. We do not question that strong federal laws are needed, but they must

pass constitutional muster. In other words, Congress may not “burn the house to

roast the pig.”5 Whether that difficult balance has been struck in the instant

legislation is the issue before us.

C. The Law and Child Pornography

We begin with a brief overview of child pornography law, which as a

distinct body, is of relatively recent vintage. The regulation of child pornography

was initially rooted in the Supreme Court’s obscenity doctrine. In Miller v.

California,6 the Court set forth the three-prong social merit test for determining

5
Butler v. Michigan, 352 U.S. 380, 383, 77 S. Ct. 524, 526 (1957).
6
413 U.S. 15, 93 S. Ct. 2607 (1973). The Miller test defines obscenity as a work that (1)
taken as a whole, appeals to the prurient interest under contemporary community standards, (2)

7
whether materials are obscene, and therefore proscribable as a category of

unprotected speech. In Stanley v. Georgia,7 the Court held that privacy interests

protect the right to possess obscene materials in one’s own home, but subsequently

clarified that this sanction does not extend to the distribution or receipt of

obscenity, which may be regulated on interstate commerce grounds even if the

transportation is for the recipient’s personal use.8 Against this backdrop, Congress

passed its first child pornography legislation, the Protection of Children against

Sexual Exploitation Act, in 1977.9 It was keyed to the Miller standard, outlawing

the use of children in the production of obscene materials and criminalizing the

knowing distribution of such materials for commercial purposes.

In 1982, the Supreme Court first dealt directly with the issue of child

pornography. In New York v. Ferber,10 a unanimous Court proclaimed that child

pornography was a distinct new category of speech without First Amendment

depicts or describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law, and (3) taken as a whole, lacks serious literary, artistic, political, or
scientific value. 413 U.S. at 24, 93 S. Ct. at 2615.
7
394 U.S. 557, 568, 89 S. Ct. 1243, 1259-50 (1969).
8
See United States v. Orito, 413 U.S. 139 (1973).
9
Pub. L. No. 95-225, 92 Stat. 7 (1978) (codified as amended at 18 U.S.C. §§ 2423, 2251-
2253).
10
458 U.S. 747, 102 S. Ct. 3348 (1982).

8
protection, holding that the government may constitutionally prohibit the creation

or promotion of pornography featuring real children even though it does not meet

the Miller standard. The primary rationale of Ferber was that child pornography

must be prohibited because of the intrinsic harm done to children in its

production.11 The Court reasoned that child pornography not only documents an

underlying act of abuse — the sexual use of a child — but the recording of the act

and subsequent circulation of the images perpetuates the injury to the depicted

child.12

In response to Ferber, Congress passed the Child Protection Act of 1984

(CPA),13 which was modeled on the New York statute upheld in Ferber. The CPA

expanded the definition of child pornography to include non-obscene but sexually

suggestive pictures of children and eliminated the commercial purposes

requirement of earlier proscriptions.

Interstate commerce advertisements and solicitations for child pornography were

banned by the Child Sexual Abuse and Pornography Act of 1986.14

11
Id. at 758, 102 S. Ct. at 335.
12
Id. at 759, 102 S. Ct. at 3355-56.
13
Pub. L. No. 98-292, 98 Stat. 204 (1984) (codified as amended at 18 U.S.C. §§ 2251-
2254, 2256, 2516).
14
Pub. L. No. 99-628, 100 Stat. 3510 (1986) (codified as amended in scattered sections

9
 Congress first addressed the connection between child pornography and

emerging computer technology in the Child Protection and Obscenity Enforcement

Act of 1988,15 which prohibited the use of computers to transport, distribute, or

receive child pornography. Shortly thereafter, the Court held in Osborne v. Ohio16

that the Stanley right to private possession does not extend to child pornography

involving actual children because, unlike adult obscenity, it springs from a

grievous harm to children.

In the wake of Ferber and subsequent legislation, much of the child

pornography industry was driven underground. Then, during the 1990s, advances

in photographic and computer-imaging technology made production of child

pornography possible without directly employing children. Visual depictions of

what appeared to be children engaging in sexually explicit conduct, and that were

virtually indistinguishable from images of actual children engaging in such

conduct, could be generated. Further, with the advent of the Internet, these

“virtual” child pornography images, along with “real” child pornography images,

could be readily distributed. However, because the Ferber standard only

of 18 U.S.C.).
15
Pub. L. No. 100-690, 102 Stat. 4485 (1988) (codified as amended at 18 U.S.C. §§
2251, 2252).
16
495 U.S. 103, 109-11 (1990).

10
addressed “live performances,” and the visual recordation of same, the existing

law left loopholes for the computer-generated images.17

To keep pace with these technological developments, Congress passed the

Child Pornography Prevention Act of 1996 (CPPA).18 Congress reasoned that

these images, while not involving the use of actual children in their production,

would still cause sufficient harm to children to justify banning them in the same

way as “real” child pornography. Under the CPPA, the definition of child

pornography was extended to cover any visual image that “is, or appears to be, of

a minor engaging in sexually explicit conduct”19 or that has been promoted in a

manner that “conveys the impression” that a minor engaging in sexually explicit

conduct is depicted.20 The latter prohibition was referred to as the CPPA’s

“pandering” provision. The circuit courts that considered challenges to the CPPA

were split, with four circuits sustaining the Act as constitutional21 while the Ninth

17
Ferber, 458 U.S. at 764-65, 102 S. Ct. at 3358.
18
Pub. L. No. 104-208, 110 Stat. 3009 (1996) (codified as amended at 18 U.S.C. §§ 2251
et seq.)
19
18 U.S.C. § 2256(8)(B) (1996) (invalidated 2002, amended 2003).
20
18 U.S.C. § 2256(8)(D) (1996) (invalidated 2002, amended 2003).
21
United States v. Fox, 248 F.3d 394 (5th Cir. 2001), vacated by 535 U.S. 1014, 122 S.
Ct. 1602 (2002); United States v. Mento, 231 F.3d 912 (4th Cir. 2000); United States v. Hilton,
167 F.3d 61 (1st Cir. 1999); United States v. Acheson, 195 F.3d 645 (11th Cir. 1999).

11
Circuit struck it down as overbroad and vague.22 The Supreme Court granted

certiorari in the Ninth Circuit case to resolve the circuit split.

D. The Supreme Court’s Decision in Free Speech Coalition

In Ashcroft v. Free Speech Coalition,23 the Supreme Court struck down as

unconstitutionally overbroad the two above-referenced subsections of the CPPA’s

definition of child pornography. The first defined child pornography as any visual

depiction, including a computer-generated depiction that “is, or appears to be, of a

minor engaging in sexually explicit conduct.”24 The second, CPPA’s “pandering”

provision, defined child pornography as a “visual depiction [that] is advertised,

promoted, presented, described, or distributed in such a manner that conveys the

impression that the material is or contains a visual depiction of a minor engaging

in sexually explicit conduct.”25 The Court held that these definitions reached more

than what could constitutionally be banned as unprotected speech under current

obscenity law.26

22
Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999).
23
535 U.S. 234, 122 S. Ct. 1389 (2002).
24
18 U.S.C. § 2256(8)(B) (1996) (invalidated 2002, amended 2003).
25
18 U.S.C. § 2256(8)(D) (1996) (invalidated 2002, amended 2003).
26
See Free Speech Coalition, 535 U.S. at 240, 251, 122 S. Ct. at 1396, 1402 (citing
Miller, 413 U.S. 15, 93 S. Ct. 2607 (1973), and Ferber, 458 U.S. 747, 102 S. Ct. 3348 (1982)).

12
 The first definition was deemed overbroad because it prohibited speech

(virtual or computer depictions, artistic works, or cinematic depictions of youthful

actors) that was not obscene under Miller, and which recorded no crime and

created no victims through its production, as did the “real” child pornography in

Ferber.27 The second definition, the “pandering” provision, was deemed

overbroad because it defined as child pornography materials that had been

promoted “convey[ing] the impression” that sexually explicit depictions involving

minors would be found within the material, even when, in fact, there were no such

scenes. This subsection thus criminalized downstream possession of material

described, or pandered, as child pornography by someone earlier in the

distribution chain even if no minors were actually involved in the production.

Finding the government’s evidence insufficient to show any harm in material

merely pandered as containing child pornography, the Court criticized the

27
The Court noted that, although they clearly could not be considered obscene under
Miller, Renaissance paintings, productions of Shakespeare’s “Romeo and Juliet,” and noteworthy
films such as “Traffic” and “American Beauty” could be swept within the ambit of the CPPA,
since arguably they contain some graphic depictions that “appear to be” of minors engaging in
sexual activity (even though such images neither involve nor harm children in the production
process), and because the CPPA provided no pause for inquiry into the work’s redeeming value
considered in totality. 535 U.S. at 246-48, 122 S. Ct. at 1400.

13
provision because it criminalized speech based solely “on how the speech is

presented” rather than on “what is depicted.”28

Although the Court found the CPPA inconsistent with Miller and lacking

support in Ferber, the government attempted to justify the definitions in other

ways. The government argued that virtual child pornography can be used to

seduce children into participating in sexual activity, and that such materials also

“whets the appetites” of pedophiles, encouraging them to engage in illegal

conduct.29 The Court rejected these arguments, noting that other laws, such as

those that prohibit unlawful solicitation of a minor, more closely regulate the

unsavory use of virtual child pornography; and that the government may not

prohibit speech on the grounds that it may merely encourage, and not incite,

pedophiles to engage in illicit conduct.30

The government next argued that its objective of eliminating the market for

“real” child pornography necessitates a prohibition on virtual images as well

because, since they are often indistinguishable and traded in the same market, the

synthetic images promote the trafficking of works produced through the

28
Id.. at 257, 122 S. Ct. at 1405-06.
29
Id. at 251-53, 122 S. Ct. at 1402-03.
30
Id. at 251-54, 122 S. Ct. at 1402-04.

14
exploitation of real children.31 The Court rejected this market deterrence theory,

noting that, “[i]n the case of the material covered by Ferber [depictions of actual

minors engaged in sexual acts], the creation of the speech is itself the crime of

child abuse; the prohibition deters the crime by removing the profit motive.”32 In

other words, because no crime underlies the production of virtual child

pornography, the production-based rationale set forth in Ferber does not apply to

synthetic images.

Finally, the Court rejected the government’s argument that, since advanced

technology makes it difficult to tell whether pictures were made with real children

or computer imaging, thus thwarting prosecutorial efforts, both kinds of images

must be banned. The Court stated that the argument, “that protected speech may

be banned as a means to ban unprotected speech . . . . turns the First Amendment

upside down.”33

E. The PROTECT Act

31
Id. at 254, 122 S. Ct. at 1404.
32
Id. (citing Osborne v. Ohio, 495 U.S. 103, 109-110, 110 S. Ct. 1691(1990)).
33
Id. at 255, 122 S. Ct. at 1404. The Court also found that the CPPA’s affirmative
defense, which allowed offenders in some cases to avoid conviction for nonpossession offenses
by showing that materials were produced using only adults and were not otherwise distributed in
a manner conveying the impression that they depicted real children, was insufficient to rescue the
statute from overbreadth because it was incomplete and shifted the burden to the defendant to
prove his speech was not unlawful. Id.

15
 Almost immediately after the Free Speech Coalition decision was handed

down, Congress began an effort to craft responsive legislation. Two pieces of

proposed legislation aimed at revising the objectionable provisions of the CPPA

were introduced in the Senate and the House.34 There was significant debate about

key provisions in the competing bills, including the proposed revisions to the

pandering provision.35 Despite ongoing disagreement, the houses compromised

and passed the PROTECT Act, now codified in scattered sections of 18 U.S.C.

The revised pandering provision of the PROTECT Act at issue in this case,

18 U.S.C. § 2252A(a)(3)(B), provides that any person who 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

34
The Senate introduced S. 151, the Prosecutorial Remedies and Other Tools to End the
Exploitation of Children Today Act of 2003 (PROTECT Act), and the House introduced H.R.
1161, the Child Obscenity and Pornography Prevention Act of 2003 (COPPA).
35
To illustrate, after the House reviewed the Senate’s version, it offered an “amendment”
to the Senate bill on March 27, 2003, which, in reality, was a recommendation that the Senate’s
language be replaced in its entirety with the House’s version found in the COPPA. (Compare
House Amendment to S. 151, Title §§ 501-512 (March 27, 2003) with H.R. 1161, 108th Cong. at
§§ 1-4 (2003) (identical language)).

16
 (ii) a visual depiction of an actual minor engaging
in sexually explicit conduct;

commits a criminal offense. For the purposes of this provision, a “minor” means

“any person under the age of eighteen years”36 and “sexually explicit conduct” is

defined 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.”37

Any person who violates, or attempts or conspires to violate, the pandering

prohibition is subject to a fine and imprisonment for a minimum of five years and

up to twenty years.38 It is an affirmative defense for certain reproducers,

distributors, recipients, and possessors of child pornography charged under other

subsections of § 2252A that the alleged child pornography depicts actual adults

36
18 USC § 2256(1).
37
18 U.S.C. § 2256(2).
38
18 USC § 2252A(b)(1).

17
rather than minors or that no “actual” minors were involved in the production.39

However, the affirmative defense expressly does not apply to the pandering

provision.40

F. What Congress Has Done Differently

At the outset of our discussion, we note that the new pandering provision

allays certain concerns voiced by the Court in Free Speech Coalition. First, the

Court’s primary objection to the CPPA’s pandering provision was that pandered

materials were criminalized for all purposes in the hands of any possessor based

on how they were originally pandered.41 By moving the pandering provision from

the definitions section to a stand-alone status, and using language that targets only

the act of pandering, the new provision has shifted from regulation of the

underlying material to regulation of the speech related to the material. This

remedies the problem of penalizing individuals farther down the distribution chain

for possessing images that, despite how they were marketed, are not illegal child

pornography.

39
18 U.S.C. § 2252A(c).
40
Id.
41
535 U.S. at 257-58, 122 S. Ct. at 1405-06 (“Materials falling within the proscription
are tainted and unlawful in the hands of all who receive it, though they bear no responsibility for
how it was marketed, sold, or described.”).

18
 With respect to its legislative findings for the PROTECT Act, Congress

largely abandons the secondary effects and market deterrence justifications found

wanting by the Court in Free Speech Coalition, although it does reiterate the need

to ensure that the result of Ferber — driving illegal child pornography from the

bookshelves — is extended to extinguish the “open and notorious trafficking in

such materials” on the Internet.42 Congress instead focuses primarily on beefing

up its findings that technological advancements since Free Speech Coalition have

increased the prosecutorial difficulties raised by the ready availability of

technology able to disguise depictions of real children (proscribable under Ferber)

to make them unidentifiable or to make them appear computer-generated

(defensible under Free Speech Coalition).43

Finally, the PROTECT Act provides a new definition for child pornography,

which in addition to “real” child images includes (1) any digital or computer-

generated image that is “indistinguishable” from that of a minor engaging in

sexually explicit conduct,44 and (2) a visual depiction that has been created or

42
Congressional Findings, § 501 at (15).
43
Id. at (4)-(13).
44
The definition of sexually explicit conduct for “indistinguishable” images is slightly
narrower than the one attached to the pandering provision as set out above, requiring that
depictions of sexual intercourse or lascivious exhibitions of the genital or pubic area also be
“graphic” (18 U.S.C. § 2256(2)(B)), meaning “that a viewer can observe any part of the genitals

19
modified to appear as an identifiable minor engaging in sexually explicit

conduct.45 The PROTECT Act also amended the general obscenity statute to

define a new category of unprotected synthetic child pornography that

incorporates, in part, the Miller definition. That law now prohibits the production,

distribution, receipt or possession, in an interstate commerce setting, of (1)

obscene visual depictions of any kind that depict a minor engaging in sexually

explicit conduct, and (2) any visual depiction that is, or appears to be, of a minor

engaging in certain enumerated “hard core” acts and lacks serious literary, artistic,

political, or scientific value.46 Thus a virtual depiction of a minor involved in any

of the expressly listed acts is outlawed even where only one of the three Miller

prongs is explicitly satisfied.47 Because the materials Williams possessed were

unquestionably depictions of “real” children, these new virtual child pornography

definitions are not directly at issue in this case, but the limitations of their reach

or pubic area of any depicted person or animal during any part of the time that the sexually
explicit conduct is being depicted . . .” 18 U.S.C. § 2256(10).
45
18 U.S.C. § 2256(8). As discussed above, the affirmative defense that no real child
was involved in the production of child pornography, which the Court found incomplete under
the CPPA, has been extended to most possessors and distributors of these defined materials.
46
18 U.S.C. § 1466A(a)-(d). The enumerated acts are “graphic bestiality, sadistic or
masochistic abuse or sexual intercourse, including genital-genital, oral genital, anal-genital, or
oral-anal, whether between persons of the same or opposite sex . . .” Id. at § 1466A(a)(2)(A).
47
The general obscenity statute provides no affirmative defense that no real child was
involved in the production of the image.

20
have implications regarding Congress’s purpose for enacting the pandering

provision, as we discuss below. For example, the definitions do not capture

innocent pictures of children that pedophiles view, collect, and trade as “dirty”

pictures. And it remains to be seen whether the Supreme Court will find

acceptable the PROTECT Act’s truncation of the Miller obscenity standard with

respect to child pornography.

G. Williams’s Overbreadth Challenge

Under the overbreadth doctrine, a statute that prohibits a substantial amount

of constitutionally protected speech is invalid on its face.48 Williams asserts that

the PROTECT Act prohibition of speech that “reflects the belief, or that is

intended to cause another to believe” that materials contain illegal child

pornography is no different than the CPPA’s prohibition of images that “appear to

be” or “convey the impression” of minors engaged in sexually explicit conduct

that was struck down as overbroad in Free Speech Coalition.

We begin our analysis with the recognition that subsections (i) and (ii) of

the PROTECT Act pandering provision capture perfectly what remains clearly

restrictable child pornography under pre- and post-Free Speech Coalition Supreme

48
Free Speech Coalition, 535 U.S. at 255, 122 S. Ct. at 1404 (citing Broadrick v.
Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908 (1973)).

21
Court jurisprudence: obscene simulations of minors engaged in sexually explicit

conduct and depictions of actual minors engaged in same. As reviewed above, the

government may constitutionally regulate, on interstate commerce grounds, the

transportation and distribution of obscene material, even if it is legal to hold

privately (i.e. non-real child pornography),49 and may outlaw “real” child

pornography for all purposes, including private possession.50 However, the

PROTECT Act pandering provision criminalizes not the speech expressed in the

underlying materials described in (i) and (ii), but the speech promoting and

soliciting such materials. The question before us is whether the restriction on that

speech is too broad.

1. The Government may wholly prohibit commercial speech that is
false or proposes an illegal transaction.

We recognize that, if we consider the pandering provision as purely a

restriction of commercial speech, we do not apply strict overbreadth analysis.51

49
Orito, 413 U.S. at 141, 93 S. Ct. at 2676.
50
Osborne. 495 U.S. at 110, 110 S. Ct. at 1696; Ferber, 458 U.S. at 760, 102 S. Ct. at
3359.
51
See Bd. of Tr. of the State Univ. of New York v. Fox, 492 U.S. 469, 477-81, 109 S. Ct.
3028, 3033-35 (1989) (holding that the “least restrictive means” test does not apply to
commercial speech cases); see also Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 463 n.20, 98
S. Ct. 1912, 1922 (1978) (observing that “the justification for applying overbreadth analysis
applies weakly, if at all, in the ordinary commercial context” because “[c]ommercial speech is
not as likely to be deterred as noncommercial speech” and therefore does not require the added

22
Instead, we determine whether the government has narrowly tailored any content-

based regulation on protected speech, that is neither misleading nor related to

unlawful activities, to achieve its desired legitimate objectives.52 Under this

analysis, the government may prohibit completely the advertisement or solicitation

of an illegal product or activity as well as false or misleading advertisement

because neither is protected speech.53 If a person possessing or seeking either

obscene synthetic child pornography or “real” child pornography, offers to sell or

buy it, this is unlawful commercial activity that the government may

constitutionally proscribe. If a person does not have obscene or “real” child

pornography but offers such things for sale, then the offeror is engaged in false or

misleading advertising, which the government may likewise punish.

If all that the pandering provision stood for was that individuals may not

commercially offer or solicit illegal child pornography nor falsely advertise non-

obscene material as though it were, the Government need not show that it has

narrowly tailored its restriction because neither of these scenarios involve

protection afforded by the overbreadth doctrine to third parties not before the bar).
52
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 100 S. Ct.
2342 (1980) (setting out the constitutional test for restrictions on commercial speech).
53
See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425
U.S. 748, 770, 96 S. Ct. 1817, 1829-30 (1976).

23
protected speech. We observe, however, that false or misleading commercial

advertising is already addressed under other state and federal laws, which are

aimed at protecting consumers from fraud. Here, under legislation aimed at

protecting children, the only person who is harmed by misleading speech, even if

it preys on the basest of motives, is the would-be buyer of illegal child

pornography, and that individual is scarcely in a position to complain. Also,

although the the penalties for false commercial advertising are not specifically

raised here,54 we note that a mere false commercial advertiser is punished on par

with an actual child pornographer, without regard to the actual content or even

existence of underlying material. Thus, a person offering for sale a copy of

Disney’s Snow White on false claims that it contains depictions of minors engaged

in sexually explicit conduct has committed a crime punishable by a fine and at

least five- and up to twenty-years’ imprisonment,55 a decidedly disproportionate

and draconian penalty.

Because the First Amendment allows the absolute prohibition of both

truthful advertising of an illegal product and false advertising of any product and

54
The materials touted by Williams in this case were clearly illegal child pornography
and we do not, in the commercial context, consider the overbreadth chilling effect on third
parties not before the court.
55
18 U.S.C. § 2252A(b)(1).

24
because, in the commercial context, we have before us no challenge to the severity

of punishment meted out for such behavior, the pandering provision would likely

pass our muster as a prohibition of unprotected forms of commercial speech, if

that were all it proscribed. However, the law is not limited to commercial

exploitation and continues to sweep in non-commercial speech. Accordingly, we

must move to the question of whether the restriction on such non-commercial

speech is constitutionally overbroad.

2. The PROTECT Act pandering provision continues to sweep in
protected non-commercial speech.

Because it 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, determining whether it represents the least restrictive means to advance

the government’s compelling interest or instead sweeps in a substantial amount of

protected speech.56 Under this analysis, we find the language of the provision

problematic for three reasons.

First, that pandered child pornography need only be “purported” to fall

under the prohibition of §2252A(a)(3)(B) means that promotional or speech is

56
United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 120 S. Ct. 1878 (2000).

25
criminalized even when the touted materials are clean or non-existent. We echo

Senator Leahy’s concern that the provision thus “federally criminalize[s] talking

dirty over the Internet or the telephone when the person never possesses any

material at all.”57 In a non-commercial context, any promoter — be they a

braggart, exaggerator, or outright liar — who claims to have illegal child

pornography materials is a criminal punishable by up to twenty years in prison,

even if what he or she actually has is a video of “Our Gang,” a dirty handkerchief,

or an empty pocket.

Further, while the commercial advertisement of an unlawful product or

service is not constitutionally protected, this feature of the Supreme Court’s

commercial speech doctrine does not apply to non-commercial speech, where the

description or advocacy of illegal acts is fully protected unless under the narrow

circumstances, not applicable here, of immediate incitement. The First

Amendment plainly protects speech advocating or encouraging or approving of

otherwise illegal activity, so long as it does not rise to “fighting word” status.58

57
S. REP. NO . 108-2, title VIII, at 23 (2003).
58
See Free Speech Coalition, 535 U.S. at 253, 122 S. Ct. at 1403 (citing Brandenburg v.
Ohio, 395 U.S. 444, 447, 89 S. Ct. 1827 (1969) (holding advocacy of racist violence protected
speech)). See also Kingsley Int’l Pictures Corp. v. Regents of the Univ. of State of N.Y., 360 U.S.
684, 79 S. Ct. 1362 (1959) (holding advocacy of immoral activities was protected speech).

26
Thus, the non-commercial, non-inciteful promotion of illegal child pornography,

even if repugnant, is protected speech under the First Amendment.

Finally, we find particularly objectionable the criminalization of speech that

“reflects the belief” that materials constitute obscene synthetic or “real” child

pornography. Because no regard is given to the actual nature or even the existence

of the underlying material, liability can be established based purely on

promotional speech reflecting the deluded belief that real children are depicted in

legal child erotica, or on promotional or solicitous speech reflecting that an

individual finds certain depictions of children lascivious.59

Because lascivious is not defined under the PROTECT Act, we apply its

ordinary meaning of “exciting sexual desires; salacious.”60 What exactly

constitutes a forbidden “lascivious exhibition of the genitals or pubic area”61 and

how that differs from an innocuous photograph of a naked child (e.g. a family

photograph of a child taking a bath, or an artistic masterpiece portraying a naked

child model) is not concrete. Generally, courts must determine this with respect to

59
18 U.S.C. §§ 2252A(a)(3)(B)(ii), 2256(2)(A)(v).
60
AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 4th Ed. (2000)
61
18 U.S.C. § 2256(2)(A)(v).

27
the actual depictions themselves.62 While the pictures needn’t always be “dirty” or

even nude depictions to qualify, screening materials through the eyes of a neutral

factfinder limits the potential universe of objectionable images.63

In this case, however, the law does not seek to attach liability to the

materials, but to the ideas and images communicated to the viewer by those

materials. This shifts the focus from a community standard to the perverted but

privately held belief that materials are lascivious. Through this lens, virtually all

depictions of children, whom to pedophiles are highly eroticized sexual objects,

are likely to draw a deviant response. Many pedophiles collect and are sexually

stimulated by nonpornographic depictions of children such as commercially

produced images of children in clothing catalogs, television, cinema, newspapers,

62
Virtually all lower courts that have addressed the meaning of “lascivious exhibition”
have embraced the widely followed “Dost” test, originally developed by a California district
court and affirmed in an opinion by the Ninth Circuit. United States v. Dost, 636 F. Supp. 828,
832 (S.D. Cal. 1986) judgm’t aff’d, United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987).
The test identifies six factors that are relevant to the determination of whether a picture
constitutes a “lascivious exhibition of the genitals or pubic area” under child pornography law.
63
The Third Circuit has held that a depiction can constitute “lascivious exhibition of the
genitals” even if a child is wearing clothes. United States v. Knox, 32 F.3d 733, 746 (3d Cir.
1994) (discussing the discernability of young girls’ genitals through “thin but opaque clothing”).
Although the material was purchased by Knox for sexual stimulation, the videotapes seized from
him did not portray explicit sexual acts nor even depict nudity; rather, they contained “vignettes
of teenage and preteen females” engaged in baton twirling and gymnastics routines and
sometimes “striking provocative poses for the camera.” Id. We note that the requirement that
lascivious exhibitions be “graphic” under the PROTECT Act’s amended obscenity definition
likely eliminates a Knox result under the obscenity statute. See n.46, supra. However, that
narrower definition does not apply to the pandering provision.

28
and magazines — otherwise innocent pictures that are not traditionally seen as

child pornography and which non-pedophiles consider innocuous.64 As illustrated

in this case, relatively innocent candid snapshots of children, such as those

initially exchanged by the defendant Williams and the undercover agent, are also

collected and used as a medium of exchange. We cannot, however, outlaw those

legal and mainstream materials and we may not outlaw the thoughts conjured up

by those legal materials.

Freedom of the mind occupies a highly-protected position in our

constitutional heritage. Even when an individual’s ideas concern immoral

thoughts about images of children, the Supreme Court has steadfastly maintained

the right to think freely. As the Court stated in Free Speech Coalition, “First

Amendment freedoms are most in danger when the government seeks to control

thought or justify its laws for that impermissible end. The right to think is the

beginning of freedom, and speech must be protected from the government because

64
Amy Adler, The Perverse Law of Child Pornography, 101 COLUM . L. REV . 209, 259-
260 (2001). The highly eroticized use of children in fashion, television, and advertising is now
the “soft porn” of child pornography. Id. Members of the North American Man Boy Love
Association (NAMBLA — an organization for pedophiles, many of whom are in prison)
reportedly find erotic stimulation by watching children on network television, the Disney
channel, and mainstream films. Id. at 260. As one investigator put it: “I had found NMBLA’s
‘porn’ and it was Hollywood. Id. (citation omitted)

29
speech is the beginning of thought.”65 The Court reiterated that the concern with

child pornography is “physiological, emotional, and mental health” of children,

and thus regulation is permissible only when targeted at the evils of the production

process itself, and not the effect of the material on its eventual viewers.66 The

PROTECT Act pandering provision misses that target and, instead, wrongly

punishes individuals for the non-inciteful expression of their thoughts and

beliefs.67 However repugnant we may find them, we may not constitutionally

suppress a defendant’s beliefs that simulated depictions of children are real or that

innocent depictions of children are salacious.

3. The Supreme Court’s decision in Ginzburg does not support
pandering as an independent offense

The Government’s central justification for the pandering provision, found

convincing by the district court, relies on the Supreme Court’s decision in

Ginzburg v. United States,68 for the proposition that an individual may be found

65
535 U.S. at 253, 122 S. Ct. at 1403 (finding that the fact that possession of non-
obscene virtual child pornography may cause sexually immoral thoughts about children was not
enough to justify banning it).
66
Id.
67
Stanley, 394 U.S. at 566, 89 S. Ct. at 1249 (stating that legislator’s “cannot
constitutionally premise legislation on the desirability of controlling a person’s private
thoughts”).
68
383 U.S. 463, 86 S. Ct. 942 (1966).

30
criminally liable for promoting material as appealing to prurient interests even

though the material actually being promoted might not fall outside the First

Amendment’s protection. We believe that reliance is ill-grounded.

In Ginzburg, erotic publications that were not “hard core” pornography, and

may not have been obscene per se, became the subjects of conviction because their

prurient qualities were exploited, or pandered, by the defendant for commercially

sexual purposes. The Court found that evidence of the manner in which the

publications were advertised and mailed “was relevant in determining the ultimate

question of obscenity,” and that evidence of such pandering on the basis of

salacious appeal “may support the determination that the material is obscene even

though in other contexts the material would escape such condemnation.”69 In Free

Speech Coalition, the Court recognized the limited scope of the pandering

rationale expressed in Ginzburg: that “in close cases evidence of pandering may

be probative with respect to the nature of the material in question and thus satisfy

the [obscenity] test.”70 The Court also suggested that Ginzburg has no application

69
Id. at 470, 476, 86 S. Ct. at 947, 950.
70
535 U.S. at 258, 122 S. Ct. at 1406 (quoting Ginzburg at 474, 86 S. Ct. 942). The
Court in Ginzburg applied the test for obscenity set out in Roth v. United States, 354 U.S. 476, 77
S. Ct. 1304 (1957), which preceded the current Miller test, but the differences between the tests
are immaterial for the purposes of our analysis.

31
where, as in the case of the CPPA, “[t]he statute does not require that the context

be part of an effort at commercial exploitation.”71

We disagree with the district court that Ginzburg supports a prohibition of

pandering as a stand-alone crime without regard to the legality, or even to the

existence, of the pandered material. First, we note that, notwithstanding its brief

mention by the Court in Free Speech Coalition, there is some question as to the

continued vitality of the Ginzburg pandering rationale. Shortly after Ginzburg

was decided, the Supreme Court held in Virginia State Board of Pharmacy v.

Virginia Citizens Consumer Council, Inc.72 that truthful, non-misleading

commercial speech is protected by the First Amendment, although to a lesser

degree than protected non-commercial speech. The sort of pandering that caused

the publications in Ginzburg to be found obscene, in other words, has since gained

some First Amendment protection. In one of two post-Ginzburg cases in the

1970s, a dissent joined by four justices states that “Ginzburg cannot survive

Virginia Pharmacy.”73 While the Supreme Court has not substantially addressed

the Ginzburg pandering rationale since the 1970s, Justice Stevens more recently

71
Id. (internal quotation marks and citation omitted).
72
425 U.S. 748, 96 S. Ct. 1817 (1976),
73
Splawn v. California, 431 U.S. 595, 603 n.2, 97 S. Ct. 1987 (1977) (Stevens, J.,
dissenting).

32
reiterated that, since Ginzburg was decided before the Court extended First

Amendment protection to commercial speech, a proposal that otherwise legal

material be deemed obscene on the basis of its titillating marketing, is

“anachronistic.”74 Consequently, although Ginzburg has not been overturned, its

precedential value is questionable.

Even if the Ginzburg pandering rationale remains viable, the PROTECT Act

pandering provision, as discussed above, is not limited to the commercial context.

In considering the CPPA pandering provision at issue in Free Speech Coalition,

the Court clearly suggested that, even if the Ginzburg pandering rationale remains

viable, it would only apply in a the commercial context.75 The PROTECT Act

pandering provision, like the CPPA pandering provision found unconstitutional in

Free Speech Coalition, does “not require that the context be part of an effort at

‘commercial exploitation.’”76

Finally, to the extent that the Ginzburg pandering rationale remains valid, it

lends little constitutional support to the pandering provision at issue here. With

respect to the “obscene” virtual or simulated material described under subsection

74
Playboy Entm’t Group, Inc., 529 U.S. at 829 120 S. Ct.1878 (Stevens, J., concurring).
75
535 U.S. at 258, 122 S. Ct. at 1406 (2002).
76
Id. (citation and internal quotation marks omitted).

33
(ii), if the pandering rationale remains valid, then it might be the basis for a court

to uphold a conviction under the PROTECT Act for distributing material of

questionable social value that would not be deemed obscene but for the

defendant’s promotion of it suggesting that it was. But if the rationale holds, then

this would be the case under existing obscenity law and the pandering provision

adds nothing in that respect. The rationale does not justify a prosecution under the

PROTECT Act that goes farther than existing obscenity law by attempting to

convict a defendant for distributing material that is clearly not obscene, merely

because the defendant pandered it as obscenity.77

With respect to “real” child pornography as described under subsection (ii),

the Ginzburg pandering rationale is of no relevance. If the pandering rationale

remains relevant to determinations of obscenity, it does so because such

determinations are made by a subjective test that weighs a publication’s degree of

77
A congressional report offers the example of the movie “Carnal Knowledge,” which
the Supreme Court found not to be obscene because it was not patently offensive. See H. Cohen,
CRS Report for Congress: Child Pornography: Constitutional Principles and Federal Statutes
Produced Without an Actual Child: Constitutionality of 108th Congress Legislation (2003)
(citing Jenkins v. Georgia, 418 U.S. 153, 94 S. Ct. 2750 (1974)). Under the PROTECT Act, if a
defendant distributed “Carnal Knowledge” “in a manner that “reflects the belief, or that is
intended to cause another to believe” that it contained an obscene visual depiction of a child, then
the defendant would be guilty of a crime. Id. But the pandering rationale of Ginzburg allows
merely “that in close cases evidence of pandering may be probative” of obscenity. Id. “Carnal
Knowledge,” because of the Supreme Court decision, is not a close case; therefore, to distribute
it in a pandering manner would not make it obscene. Id.

34
social value under the Miller test. Ginzburg held only that pandering may be

probative of those factors. Determinations of “real” child pornography as

described in subsection (ii), on the other hand, are made by a purely objective test:

whether or not the material visually depicts an actual minor engaged in sexually

explicit conduct. The manner in which the material is promoted has no bearing on

the answer to this question. As one commentator observed, “[n]o amount of

pandering, even misleading pander, can convert a virtual child into a real child.”78

In sum, the Government urges us to read the PROTECT Act as writing the

Ginzburg pandering rationale into the law. We note that at least one state law

concerning obscene visual depictions of children has succinctly done just that.79

But the Government asks us to stretch that rationale much farther, to support

pandering as an independent crime rather than only as evidence of the crime of

obscenity or child pornography. We believe such an interpretation of Ginzburg

butts directly against the holding of Free Speech Coalition and, accordingly, find

78
Stopping Child Pornography: Protecting Our Children and the Constitution: Hearing
on S. 2520 Before the Senate Comm. On the Judiciary, 107th Cong. (2002) (testimony of Harvard
School of Law Professor Frederick Schauer).
79
See, e.g., ALA . CODE § 13A-12-195 (2005), providing that “[w]here the circumstances
of the dissemination or public display of matter indicates that it is being commercially exploited
by the defendant for its prurient appeal, such evidence may be considered in determining whether
the matter appeals to the prurient interest, is patently offensive, or lacks serious literary, artistic,
political or scientific value.”

35
that Ginzburg does not rescue the PROTECT Act pandering provision from

substantial overbreadth.80

4. The PROTECT Act pandering provision is not justified by
legislative findings.

The pandering provision of the PROTECT Act, for reasons we have

discussed, is inconsistent with Miller and Ferber, as reaffirmed in Free Speech

Coalition, and is not sustainable under Ginzburg. The Government, however,

seeks to justify its prohibitions in other ways.

First, noting the state’s compelling interest in protecting children from those

who sexually exploit them, Congress relies on Ferber and Osborne for the

80
Because it was an issue much debated by Congress and commentators in the wake of
Free Speech Coalition, we do not ignore the “Romeo and Juliet” problem discussed at length in
that case. See n.27, supra. The Court’s concern with outlawing material either containing a
depiction that “appear[ed] to be” a minor engaging in sexually explicit conduct or that was
presented or promoted “in a manner that convey[ed] the impression” that it contained such
depictions, was that the whole aim of dramatic presentation is to make fictional happenings
“appear” to be real. Under the overbroad definition of the CPPA, non-obscene movies
employing youthful actors to simulate minors engaged in apparent sexually explicit conduct
could be ensnared, even though no child was involved in the production
Here, Williams urges that the PROTECT Act’s “intended to cause another to believe”
language is no different than the “appears to be” and “conveys the impression that” language
found overbroad by the Court. While the Government argues it is a cure,
we do not, for reasons discussed in this section, find the insertion of the word “obscene” into the
material description particularly meaningful in avoidance of sweeping in meritorious works
where the statute is punishing activity that is unrelated to the actual contents of the material. And
if there is otherwise a constitutionally relevant distinction between the sweep of PROTECT and
COPPA in this regard, it is a fine one. Whether, in an industry that functions on the suspension
of disbelief, legitimate presenters and promoters of artistically meritorious films intend that
viewers truly “believe” real minors are involved in such productions or, rather, simply invite the
viewer imagine, is debatable. Because we find the Act infirm on a number of other fronts, we
need not split this hair.

36
proposition that this interest extends to stamping out the market for child

pornography.81 However, Congress has not adequately explained why the mere

pandering of otherwise legal material should be prohibited in the pursuit of this

interest.

In the PROTECT Act’s Conference Report, Congress mentions that “even

fraudulent offers to buy or sell unprotected child pornography help to sustain the

illegal market for this material.”82 This appears to be a resurrection of the market-

deterrence theory advanced by the Government, and rejected by the Court, in Free

Speech Coalition. As the Court recognized, the prohibitions of “real” child

pornography in Ferber and Osborne were upheld on a production-based rationale.

The Court in Ferber allowed market deterrence restrictions because they destroyed

the profit motive to exploit real children. Congress has again failed to articulate

specifically how the pandering and solicitation of legal images, even if they are

promoted or believed to be otherwise, fuels the market for illegal images of real

children engaging in sexually explicit conduct.

81
Congressional Findings (501) at (2)-(3) (citing Osborne v. Ohio, 495 U.S. 103, 110
(1990) and quoting New York v. Ferber 458 U.S. 747, 760 (1982) (“The most expeditious if not
the only practical method of law enforcement may be to dry up the market for this material by
imposing severe criminal penalties on persons, selling, advertising, or otherwise promoting the
product.”)).
82
H.R. REP. NO . 108-66, Title V, at 62 (2003).

37
 Next, the Government points to the legislative findings of the PROTECT

Act that articulate the difficulties in successful prosecution of child pornography

possession cases where advancements in computer technology allow images to be

so altered as to cast reasonable doubt on whether they involve real children.83

Congress characterizes the pandering provision as “an important tool for

prosecutors to punish true child pornographers who for some technical reason are

beyond the reach of the normal child porn distribution or production statutes.”84

The Government argues that, grounded on these findings, the pandering provision

allows prosecutions to go forward against persons who not only have the intent to

participate in the child pornography market, but who actively solicit others to

participate in that market, regardless of whether the government can prove

whether the underlying material is real child pornography or not. Without such

prosecutorial tools, it argues, the child pornography market will flourish, harming

real children.85

This argument not only attempts, once again, to revive the rejected market

proliferation rationale but also disregards the firmly established principle that

83
See Findings 501 at (10)-(13).
84
S. REP. NO . 108-2, Title VIII, at 23 (2003)(remarks of Sen. Patrick Leahy).
85
See Findings 501 at (13).

38
“[t]he Government may not suppress lawful speech as the means to suppress

unlawful speech..”86 And when the “technical reason” is that the material being

described or exchanged does not fall within one of the two proscribable categories

— but instead is legal child erotica, innocent pictures of children arousing only in

the minds of certain viewers, or non-existent — the Government cannot

circumvent the criminal procedure process. In a non-commercial setting, in which

most child pornography is discussed and exchanged, pandering at most either

raises actionable suspicion that illegal materials are possessed87 or is evidentiary of

the social merit of questionable materials. The Government must do its job to

determine whether illegal material is behind the pander.

The Government urges that we consider this simply an inchoate crime,

arguing that only those with specific intent to traffic in illegal child pornography

will be ensnared88 and noting, for example, that offers to buy or sell illegal drugs

86
Free Speech Coalition, 535 U.S. at 255, 122 S. Ct. at 1404.
87
A number of courts have held that affidavits that defendants had joined Internet e-
groups that members used to exchange child pornography provided probable cause to search their
home, although there was no evidence that the defendants had ever downloaded any illegal visual
depictions. See, e.g., United States v. Martin, 426 F.3d 83 (2d Cir. 2005) petition for cert. filed,
2006 WL 448514 (U.S. Feb. 16, 2006) (No. 05-1073) (holding that textual email about child
pornography exchanged by members of the e-group was not protected speech); United States v.
Coreas, 426 F.3d 615 (2d Cir. 2005) (same); United States v. Froman, 355 F.3d 882 (5th Cir.
2004)(same); United States v. Hutto, 84 Fed. Appx. 6 (10th Cir. 2003) (unpublished)(same).
88
See H.R. REP. NO . 108-66 (2003) (stating that the instant pandering provision “bans
the offer to transact in unprotected material, coupled with proof of the offender’s specific

39
can be punished even if no drugs actually exist. However, the inchoate offenses

— attempt, solicitation, conspiracy — are covered elsewhere in the code.89

Further, the intent element only applies to one portion of the provision —

promoting material in a manner “that is intended to cause another to believe” it is

illicit — and, to be a violator, one need not intend to distribute illegal materials,

but only intend that another believe the materials one has are lascivious. Also, a

defendant may be liable for promoting, distributing, or soliciting perfectly legal

materials that only he or she personally believes are lascivious. As Professor

Schauer notes, “when the non-existence of illegality is a function not of the non-

existence of an illegal product but rather the non-illegality of an existing product,

the First Amendment returns to the picture.”90 Finally, with any inchoate offense

intent.”); S. REP. NO . 108-2, at 10 n.6 (2003) (stating that the provision requires the government
to establish that the defendant acted with the specific intent to traffic in obscene material or
actual child pornography).
89
See 18 U.S.C. § 2252A(b)(1) (which expressly applies to the pandering provision) and
18 U.S.C. § 1466A(a) (criminalizing the attempt or conspiracy to produce or distribute obscene
or real child pornography).
90
Stopping Child Pornography: Protecting Our Children and the Constitution: Hearing
on S. 2520 Before the Senate Comm. On the Judiciary, 107th Cong. (2002) (testimony of
Professor Frederick Schauer). We note that this is also what differentiates the instant pandering
provision from state laws that criminalize the pandering of prostitution. While a defendant may
be convicted, for example, for soliciting sex from an undercover police officer, even though the
officer has no intention of actually consummating the deal, in a jurisdiction that has outlawed
prostitution, there is no circumstance under which sex for money may be legal. For this reason,
the Government’s “phantom” drug analogy is also unpersuasive.

40
the government must show some substantial movement toward completing the

crime, must prove, in other words, something beyond mere talk. Under the

PROTECT Act pandering provision, mere talk is all that is required for liability

and that does not square with Supreme Court First Amendment jurisprudence.

In sum, we recognize that Congress has a compelling interest in protecting

children and, to that end, may regulate in interstate commerce settings the

distribution or solicitation of the materials described in subsections (i) (obscene

child pornography) and (ii) (“real” child pornography) of the PROTECT Act

pandering provision. However, the pandering provision goes much farther than

that. The provision abridges the freedom to engage in a substantial amount of

lawful speech in relation to its legitimate sweep, and the reasons the Government

offers in support of such limitations have no justification in the Supreme Court’s

First Amendment precedents. Accordingly, we find it unconstitutionally

overbroad.

H. Williams’s Vagueness Challenge

The Government contends that, since the written plea agreement references

only Williams’s right to appeal his pandering conviction on grounds of

overbreadth, he has waived his vagueness challenge. We disagree. We recognize

that vagueness and overbreadth doctrines, although “logically related and similar,”

41
are distinct.91 However, plea bargains, as we have noted, are like contracts and

should be interpreted in accord with the parties’ intent.92 Further, a written plea

agreement should be viewed against the background of the negotiations, avoiding

interpretation that directly contradicts an oral understanding; and, because it

constitutes a waiver of substantial constitutional rights, should be read, where in

doubt, against the government.93 The record in this case clearly reflects the

parties’ intent to preserve Williams’s constitutional challenges under both

overbreadth and vagueness doctrines.94 That the written memorialization of that

agreement omitted the latter of these related grounds is insufficient to support

waiver.

Laws that are insufficiently clear are void for three reasons: (1) to avoid

punishing people for behavior that they could not have known was illegal; (2) to

avoid subjective enforcement of the laws based on arbitrary or discriminatory

91
Kolender v. Lawson, 461 U.S. 352, 358 n.8, 103 S.Ct. 1855 (1983).
92
United States v. Rubbo, 396 F.3d 1330, 1334 (11th Cir. 2005).
93
United States v. Nyhuis, 8 F.3d 731, 742 (11th Cir. 1993) (quoting United States v.
Jefferies, 908 F.2d 1520, 1523 (11th Cir. 1990).
94
Williams’s motion to dismiss was expressly raised on grounds that the pandering
provision was both overbroad and vague. The remarks of counsel during the plea colloquy
reference the parties’ agreement that Williams was preserving challenges under both doctrines
and the importance of a ruling on that motion to ensure preservation, especially as to the
vagueness claim, was discussed at some length by the parties and the court.

42
interpretations by government officers; and (3) to avoid any chilling effect on the

exercise of sensitive First Amendment freedoms.95 Thus, to pass constitutional

muster, statutes challenged as vague must give a person of ordinary intelligence a

reasonable opportunity to know what is prohibited and provide explicit standards

for those who apply it to avoid arbitrary and discriminatory enforcement.96

Vagueness concerns are more acute when a law implicates First Amendment rights

and a heightened level of clarity and precision is demanded of criminal statutes

because their consequences are more severe.97

In this case, considering a penal statute that both restricts speech and carries

harsh criminal penalties, it is not at all clear what is meant by promoting or

soliciting material “in a manner that reflects the belief, or that is intended to cause

another to believe” that touted or desired material contains illegal child

pornography. This language is so vague and standardless as to what may not be

said that the public is left with no objective measure to which behavior can be

95
Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299 (1972).
With respect to chilling effects, the problems of vagueness and overbreadth are, plainly, closely
intertwined since those persons covered by the statutes are bound to limit their behavior to that
which is unquestionably safe.
96
Kolender, 461 U.S. at 357, 103 S. Ct. at 1858 (1983); Bama Tomato Co. v. U.S. Dept.
of Agriculture, 112 F.3d 1542 (11th Cir. 1997).
97
Village of Hoffman Estates, Inc. v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498,
499, 102 S. Ct. 1186 (1982).

43
conformed. Moreover, the proscription requires a wholly subjective determination

by law enforcement personnel of what promotional or solicitous speech “reflects

the belief” or is “intended to cause another to believe” that material is illegally

pornographic. Individual officers are thus endowed with incredibly broad

discretion to define whether a given utterance or writing contravenes the law’s

mandates.98

Suppose, for example, the government intercepts an email claiming that the

attached photographs depict “little Janie in the bath — hubba, hubba!” Does this

“reflect a belief” on the sender’s part that the photos are lascivious? As discussed

above, the law does not require the pandered material to contain any particular

content nor, in fact, that any “purported” material need actually exist. Since the

“reflects the belief” portion of the statute has no intent requirement, the

government establishes a violation with proof of a communication that it deems,

with virtually unbounded discretion, to be reflective of perverse thought.

98
See City of Chicago v. Morales, 527 U.S. 41, 119 S. Ct. 1849 (1999) (holding
unconstitutionally vague an anti-loitering ordinance, which defined loitering as remaining in
place with “no apparent purpose,” finding that standard “inherently subjective because its
application depends on whether some purpose is ‘apparent’ to the officer on the scene.”); City of
Houston, Tex. v. Hill, 482 US 451, 107 S. Ct. 2502 (1987) (finding unconstitutionally vague a
city ordinance prohibiting speech that “in any manner” interrupts a police officer in the
performance of his duties, without limitation to fighting words or to obscene or opprobrious
language).

44
Regardless of what is actually depicted in the photos in our example — whether

they are innocent baby-in-the-bubbles snapshots or candid stills of the family

Rottweiler in a No. 10 washtub — regardless, in fact, of whether any photos are

attached, this communication could be interpreted as criminal behavior. And

because the PROTECT Act’s affirmative defense does not apply to the pandering

provision, it is no defense to show that the underlying materials are not, in fact,

illegal child pornography.

Even more complex is the determination of what constitutes presentation in

a “manner that is intended to cause another to believe” that material contains

illegal child pornography. Let us consider, for example, an email entitled simply

“Good pics of kids in bed.” Let us also imagine that the “pics” are actually of

toddlers in footie pajamas, sound asleep. Sender One is a proud and computer-

savvy grandparent. Sender Two is a chronic forwarder of cute photos with racy

tongue-in-cheek subject lines. Sender Three is a convicted child molester who

hopes to trade for more graphic photos with like-minded recipients. If what the

statute required was a specific intent to traffic in illegal child pornography, the

identity of the sender and the actual content of the photos would be probative.

Senders One and Two would be off the hook while Sender Three may warrant

further investigation.

45
 But again, the pandering provision requires no inquiry into the actual nature

or even existence of the images and provides no affirmative defense that the

underlying materials are not, in fact, illegal child pornography. The offense is

complete upon communication “in a manner that,” in the discretionary view of law

enforcement, “is intended to cause another to believe” that materials are illegal

child pornography. Here, the “manner” of presentation, as well as the plainly legal

underlying material, are identical in all three instances. And Sender Two clearly

intended that his recipients believe, however briefly, that the attached photos were

sexually explicit depictions of minors.

While posting in a known child pornography chat room would clearly

spotlight the true child abuser, in open cyberspace, which of these communicators

is a criminal?99 The pandering provision is devoid of any contextual parameters

for the restriction on conduct that might illuminate its meaning and rescue it from

vagueness.100 Absent such a contextual backdrop, the language of this law is too

99
See Reno v. ACLU, 521 U.S. 844, 876, 117 S. Ct. 2329 (1997) (recognizing that overly
vague restrictions may curtail a significant amount of protected speech in the relatively
borderless architecture of the Internet).
100
See, e.g., Boos v. Barry, 485 U.S. 312, 332, 108 S. Ct. 1157, 1169-70 (1988); (noting
that the court’s interpretation of the challenged statute as protecting the “peace” was sufficiently
precise because of the particular context of the peace of an embassy); Grayned, 408 U.S. at 112,
92 S. Ct. at 2304 (finding that an anti-noise ordinance was not vague where it was written
specifically to forbid disturbance of schools because “prohibited disturbances are easily measured
by their impact on normal activities of the school”).

46
imprecise a standard to provide sufficient guard against arbitrary deprivation of a

significant liberty interest.

We again recognize that Congress may regulate the distribution or

solicitation of the illegal materials described in subsections (i) (obscene child

pornography) and (ii) (“real” child pornography) of the pandering provision. If

that were all the provision did, we would find no constitutional infirmity on

vagueness grounds. However, the statute is unnecessarily muddled by the

nebulous “purported material” and “reflects the belief, or is intended to cause

another to believe” language. Because of this language, the pandering provision

fails to convey the contours of its restriction with sufficient clarity to permit law-

abiding persons to conform to its requirements. Because of this language, the

provision is insusceptible of uniform interpretation and application by those

charged with the responsibility of enforcing it. Accordingly, we find it

impermissibly vague.

III. Williams’s Booker Challenge

A. Standard of Review

Where, as here, there is a timely objection, we review a defendant's Booker

claim in order to determine whether the error was harmless.101 There are two

101
United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005).

47
harmless error standards, one of which applies to Booker constitutional errors, the

other to Booker statutory errors.102 Statutory errors are subject to the less

demanding test that is applicable to non-constitutional errors.103 A non-

constitutional Booker error is harmless if, viewing the proceedings in their

entirety, a court determines that the error did not affect the sentence, or had but

very slight effect.104 If one can say with fair assurance that the sentence was not

substantially swayed by the error, the sentence is due to be affirmed even though

there was error.105 Because this is a Booker statutory error case we will apply that

standard.

B. No Reversible Booker Error

Williams was assessed (1) a two-level sentence enhancement for use of a

computer for transmission, receipt or distribution of child pornography (2) a two-

level sentence enhancement for possession of child pornography because the

pornographic material at issue involved minors under age twelve, and (2) a four-

level sentence enhancement because the material involved portrayed sadistic or

102
Id.
103
Id.
104
Id. (citation and internal quotation marks omitted).
105
Id.

48
masochistic conduct or other depictions of violence. Because these enhancements

were applied under a mandatory guidelines scheme, error occurred.106 However,

because Williams admitted to the factual basis for his sentence, which included the

facts underlying these enhancements, there was no Sixth Amendment Booker

error.107

We conclude that, viewing the proceedings in their entirety, the sentence

was not substantially swayed by the statutory error. Williams was sentenced

above the bottom of the 57 to 71 month guideline range for the possession count,

and the district court, exercising its discretion, expressly declined his request for a

lower sentence within that range. The court also stated that, even if not bound by

the guidelines, it had doubts that the sentence would be any lower, and it may have

been higher. While the judge declined to issue an alternative sentence in

anticipation of Blakely’s application to the guidelines given the then-settled state

of that issue in this circuit, he explained his decision thoroughly enough that we

are confident that he would not lower the sentence in this case on remand.

IV. Conclusion

106
See United States v. Shelton, 400 F.3d 1325, 1331 (11th Cir. 2005).
107
Id. at 1329-30.

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 In the wake of Free Speech Coalition, sexually explicit speech regarding

children that is neither obscene nor the product of sexual abuse of a real minor

retains protection of the First Amendment. We believe the Court’s decision in

Free Speech Coalition leaves Congress ample authority to enact legislation that

allows the Government to accomplish its legitimate goal of curbing child abuse

without placing an unacceptably heavy burden on protected speech. Certainly

Congress took many cues from the Court in drafting the legislation at issue in this

case.

Given the unique patterns of deviance inherent in those who sexually covet

children and the rapidly advancing technology behind which they hide, we are not

unmindful of the difficulties of striking a balance between Congress’s interest in

protecting children from harm with constitutional guarantees. However, the

infirmities of the PROTECT Act pandering provision reflect a persistent disregard

of time-honored and constitutionally-mandated principles relating to the

Government’s regulation of free speech and its obligation to provide criminal

defendants due process. Because we find the PROTECT Act pandering provision,

18 U.S.C. § 2252A(a)(3)(B), both substantially overbroad and vague, and

therefore facially unconstitutional, we reverse Williams’s conviction under that

section. However, because we find no reversible Booker error in his sentencing

50
for possession of illegal child pornography, we affirm his sentence of 60-months

imprisonment.

CONVICTION REVERSED AND SENTENCE ON COUNT ONE VACATED;

SENTENCE ON COUNT TWO AFFIRMED.

51