UNITED STATES v. WILLIAMS

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285 OCTOBER TERM, 2007
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UNITED STATES v. WILLIAMS
certiorari to the united states court of appeals for
the eleventh circuit
No. 06–694. Argued October 30, 2007—Decided May 19, 2008
After this Court found facially overbroad a federal statutory provision
criminalizing the possession and distribution of material pandered as
child pornography, regardless of whether it actually was that, Ashcroft
v. Free Speech Coalition, 535 U. S. 234, Congress passed the pandering
and solicitation provision at issue, 18 U. S. C. § 2252A(a)(3)(B). Re
spondent Williams pleaded guilty to this offense and others, but re
served the right to challenge his pandering conviction’s constitutionality.
The District Court rejected his challenge, but the Eleventh Circuit re
versed, finding the statute both overbroad under the First Amendment
and impermissibly vague under the Due Process Clause.
Held:
1. Section 2252A(a)(3)(B) is not overbroad under the First Amend
ment. Pp. 292–304.
(a) A statute is facially invalid if it prohibits a substantial amount
of protected speech. Section 2252A(a)(3)(B) generally prohibits offers
to provide and requests to obtain child pornography. It targets not the
underlying material, but the collateral speech introducing such material
into the child-pornography distribution network. Its definition of mate
rial or purported material that may not be pandered or solicited pre
cisely tracks the material held constitutionally proscribable in New York
v. Ferber, 458 U. S. 747, and Miller v. California, 413 U. S. 15: obscene
material depicting (actual or virtual) children engaged in sexually
explicit conduct, and any other material depicting actual children en
gaged in sexually explicit conduct. The statute’s important features
include: (1) a scienter requirement; (2) operative verbs that are reason
ably read to penalize speech that accompanies or seeks to induce a child
pornography transfer from one person to another; (3) a phrase—“in a
manner that reflects the belief,” ibid.—that has both the subjective com
ponent that the defendant must actually have held the “belief ” that the
material or purported material was child pornography, and the objective
component that the statement or action must manifest that belief; (4) a
phrase—“in a manner . . . that is intended to cause another to believe,”
ibid.—that has only the subjective element that the defendant must “in

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tend” that the listener believe the material to be child pornography; and
(5) a “sexually explicit conduct” definition that is very similar to that in
the New York statute upheld in Ferber. Pp. 292–297.
(b) As thus construed, the statute does not criminalize a substantial
amount of protected expressive activity. Offers to engage in illegal
transactions are categorically excluded from First Amendment protec
tion. E. g., Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Re
lations, 413 U. S. 376, 388. The Eleventh Circuit mistakenly believed
that this exclusion extended only to commercial offers to provide or
receive contraband. The exclusion’s rationale, however, is based not on
the less privileged status of commercial speech, but on the principle that
offers to give or receive what it is unlawful to possess have no social
value and thus enjoy no First Amendment protection. The constitu
tional defect in Free Speech Coalition’s pandering provision was that it
went beyond pandering to prohibit possessing material that could not
otherwise be proscribed. The Eleventh Circuit’s erroneous conclusion
led it to apply strict scrutiny to § 2252A(a)(3)(B), lodging three fatal
objections that lack merit. Pp. 297–304.
2. Section 2252A(a)(3)(B) is not impermissibly vague under the Due
Process Clause. A conviction fails to comport with due process if the
statute under which it is obtained fails to provide a person of ordinary
intelligence fair notice of what is prohibited, or is so standardless that
it authorizes or encourages seriously discriminatory enforcement. Hill
v. Colorado, 530 U. S. 703, 732. In the First Amendment context plain
tiffs may argue that a statute is overbroad because it is unclear whether
it regulates a substantial amount of protected speech. Hoffman Es
tates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 494–495, and nn. 6
and 7. The Eleventh Circuit mistakenly believed that “in a manner
that reflects the belief ” and “in a manner . . . that is intended to cause
another to believe” were vague and standardless phrases that left the
public with no objective measure of conformance. What renders a stat
ute vague, however, is not the possibility that it will sometimes be diffi
cult to determine whether the incriminating fact it establishes has been
proved; but rather the indeterminacy of what that fact is. See, e. g.,
Coates v. Cincinnati, 402 U. S. 611, 614. There is no such indetermi
nacy here. The statute’s requirements are clear questions of fact. It
may be difficult in some cases to determine whether the requirements
have been met, but courts and juries every day pass upon the reasonable
import of a defendant’s statements and upon “knowledge, belief and in
tent.” American Communications Assn. v. Douds, 339 U. S. 382, 411.
Pp. 304–307.
444 F. 3d 1286, reversed.

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Scalia, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Stevens, Kennedy, Thomas, Breyer, and Alito, JJ., joined. Ste
vens, J., filed a concurring opinion, in which Breyer, J., joined, post,
p. 307. Souter, J., filed a dissenting opinion, in which Ginsburg, J.,
joined, post, p. 310.
Solici tor General Clement argued the cause for the
United States. With him on the briefs were Assistant At
torney General Fisher, Deputy Solicitor General Dreeben,
Deanne E. Maynard, and Deborah Watson.
Richard J. Diaz argued the cause for respondent. With
him on the brief were Ophelia M. Valls, Luis I. Guerra, and
G. Richard Strafer.*
*Briefs of amici curiae urging reversal were filed for the State of Ala
bama et al. by Troy King, Attorney General of Alabama, Kevin C. New
som, Solicitor General, and James W. Davis, Assistant Attorney General,
and by the Attorneys General for their respective States as follows: Terry
Goddard of Arizona, Dustin McDaniel of Arkansas, John W. Suthers of
Colorado, Joseph R. Biden III of Delaware, Bill McCollum of Florida,
Mark J. Bennett of Hawaii, Lisa Madigan of Illinois, Steve Carter of Indi
ana, Paul J. Morrison of Kansas, G. Steven Rowe of Maine, Douglas F.
Gansler of Maryland, Michael A. Cox of Michigan, Lori Swanson of Min
nesota, Jon Bruning of Nebraska, Kelly A. Ayotte of New Hampshire,
Gary King of New Mexico, Roy Cooper of North Carolina, Wayne Steneh
jem of North Dakota, W. A. Drew Edmondson of Oklahoma, Thomas W.
Corbett, Jr., of Pennsylvania, Henry D. McMaster of South Carolina, Greg
Abbott of Texas, Mark L. Shurtleff of Utah, William Sorrell of Vermont,
Robert F. McDonnell of Virginia, Robert M. McKenna of Washington, and
Darrell V. McGraw, Jr., of West Virginia; for the American Center for
Law and Justice et al. by Jay Alan Sekulow, Stuart J. Roth, Colby M.
May, James M. Henderson, Walter M. Weber, John P. Tuskey, and Laura
B. Hernandez; for the Lighted Candle Society et al. by Gene C. Schaerr,
Steffen N. Johnson, and Linda T. Coberly; for Morality in Media, Inc., by
Robin S. Whitehead; for the National Law Center for Children and Fami
lies et al. by Daniel P. Collins and Fred A. Rowley, Jr.; for the National
Legal Foundation by Steven W. Fitschen and Barry C. Hodge; and for the
Rutherford Institute by John W. Whitehead.
Briefs of amici curiae urging affirmance were filed for the American
Booksellers Foundation for Free Expression et al. by Michael A. Bam
berger and Jonathan Bloom; for the Free Speech Coalition et al. by

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288 UNITED STATES v. WILLIAMS
Opinion of the Court
Justice Scalia delivered the opinion of the Court.
Section 2252A(a)(3)(B) of Title 18, United States Code,
criminalizes, in certain specified circumstances, the pander
ing or solicitation of child pornography. This case presents
the question whether that statute is overbroad under the
First Amendment or impermissibly vague under the Due
Process Clause of the Fifth Amendment.
I
A
We have long held that obscene speech—sexually explicit
material that violates fundamental notions of decency—is
not protected by the First Amendment. See Roth v. United
States, 354 U. S. 476, 484–485 (1957). But to protect explicit
material that has social value, we have limited the scope of
the obscenity exception, and have overturned convictions for
the distribution of sexually graphic but nonobscene material.
See Miller v. California, 413 U. S. 15, 23–24 (1973); see also,
e. g., Jenkins v. Georgia, 418 U. S. 153, 161 (1974).
Over the last 25 years, we have confronted a related and
overlapping category of proscribable speech: child pornogra
phy. See Ashcroft v. Free Speech Coalition, 535 U. S. 234
(2002); Osborne v. Ohio, 495 U. S. 103 (1990); New York v.
Ferber, 458 U. S. 747 (1982). This consists of sexually ex
plicit visual portrayals that feature children. We have held
that a statute which proscribes the distribution of all child
pornography, even material that does not qualify as obscen
ity, does not on its face violate the First Amendment. See
id., at 751–753, 756–764. Moreover, we have held that the
government may criminalize the possession of child pornog
raphy, even though it may not criminalize the mere posses
sion of obscene material involving adults. Compare Os-
H. Louis Sirkin and John P. Feldmeier; and for the National Coalition
Against Censorship et al. by Katherine A. Fallow and Joan E. Bertin.

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borne, supra, at 111, with Stanley v. Georgia, 394 U. S. 557,
568 (1969).
The broad authority to proscribe child pornography is not,
however, unlimited. Four Terms ago, we held facially over
broad two provisions of the federal Child Pornography Pre
vention Act of 1996 (CPPA). Free Speech Coalition, 535
U. S., at 258. The first of these banned the possession and
distribution of “ ‘any visual depiction’ ” that “ ‘is, or appears
to be, of a minor engaging in sexually explicit conduct,’ ”
even if it contained only youthful-looking adult actors or vir
tual images of children generated by a computer. Id., at
239–241 (quoting 18 U. S. C. § 2256(8)(B)). This was invalid,
we explained, because the child-protection rationale for
speech restriction does not apply to materials produced with
out children. See 535 U. S., at 249–251, 254. The second
provision at issue in Free Speech Coalition criminalized the
possession and distribution of material that had been pan
dered as child pornography, regardless of whether it actually
was that. See id., at 257 (citing 18 U. S. C. § 2256(8)(D)). A
person could thus face prosecution for possessing unobjec
tionable material that someone else had pandered. 535
U. S., at 258. We held that this prohibition, which did “more
than prohibit pandering,” was also facially overbroad. Ibid.
After our decision in Free Speech Coalition, Congress
went back to the drawing board and produced legislation
with the unlikely title of the Prosecutorial Remedies and
Other Tools to end the Exploitation of Children Today Act
of 2003, 117 Stat. 650. We shall refer to it as the Act. Sec
tion 503 of the Act amended 18 U. S. C. § 2252A to add a new
pandering and solicitation provision, relevant portions of
which now read as follows:
“(a) Any person who—
. . . . .
“(3) knowingly—
. . . . .
“(B) advertises, promotes, presents, distributes, or
solicits through the mails, or in interstate or foreign

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commerce by any means, including by computer, any
material or purported material in a manner that reflects
the belief, or that is intended to cause another to believe,
that the material or purported material is, or contains—
“(i) an obscene visual depiction of a minor engaging
in sexually explicit conduct; or
“(ii) a visual depiction of an actual minor engaging in
sexually explicit conduct,
. . . . .
“shall be punished as provided in subsection (b). ”
§ 2252A(a)(3)(B) (2000 ed., Supp. V).
Section 2256(2)(A) defines “ ‘sexually explicit conduct’ ” as
“actual or simulated—
“(i) sexual intercourse, including genital-genital,
oral-genital, anal-genital, or oral-anal, whether between
persons of the same or opposite sex;
“(ii) bestiality;
“(iii) masturbation;
“(iv) sadistic or masochistic abuse; or
“(v) lascivious exhibition of the genitals or pubic area
of any person.”
Violation of § 2252A(a)(3)(B) incurs a minimum sentence of
5 years imprisonment and a maximum of 20 years. 18
U. S. C. § 2252A(b)(1).
The Act’s express findings indicate that Congress was con
cerned that limiting the child-pornography prohibition to
material that could be proved to feature actual children, as
our decision in Free Speech Coalition required, would enable
many child pornographers to evade conviction. See § 501(9),
(10), 117 Stat. 677. The emergence of new technology and
the repeated retransmission of picture files over the Internet
could make it nearly impossible to prove that a particular
image was produced using real children—even though
“[t]here is no substantial evidence that any of the child por

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nography images being trafficked today were made other
than by the abuse of real children,” virtual imaging being
prohibitively expensive. § 501(5), (7), (8), (11), id., at 676–
678; see also Dept. of Justice, Office of Community Oriented
Policing Services, R. Wortley & S. Smallbone, Child Pornog
raphy on the Internet 9 (May 2006), online at http://www.
cops.usdoj.gov/mime/open.pdf?Item=1729 (hereinafter Child
Pornography on the Internet) (as visited Jan. 7, 2008, and
available in Clerk of Court’s case file).
B
The following facts appear in the opinion of the Eleventh
Circuit, 444 F. 3d 1286, 1288 (2006). On April 26, 2004, re
spondent Michael Williams, using a sexually explicit screen
name, signed in to a public Internet chat room. A Secret
Service agent had also signed in to the chat room under the
moniker “Lisa n Miami.” The agent noticed that Williams
had posted a message that read: “Dad of toddler has ‘good’
pics of her an [sic] me for swap of your toddler pics, or live
cam.” The agent struck up a conversation with Williams,
leading to an electronic exchange of nonpornographic pic
tures of children. (The agent’s picture was in fact a doc
tored photograph of an adult.) Soon thereafter, Williams
messaged that he had photographs of men molesting his 4
year-old daughter. Suspicious that “Lisa n Miami” was a
law-enforcement agent, before proceeding further Williams
demanded that the agent produce additional pictures.
When he did not, Williams posted the following public mes
sage in the chat room: “HERE ROOM; I CAN PUT
UPLINK CUZ IM FOR REAL—SHE CANT.” Appended
to this declaration was a hyperlink that, when clicked, led to
seven pictures of actual children, aged approximately 5 to
15, engaging in sexually explicit conduct and displaying their
genitals. The Secret Service then obtained a search war
rant for Williams’s home, where agents seized two hard

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drives containing at least 22 images of real children engaged
in sexually explicit conduct, some of it sadomasochistic.
Williams was charged with one count of pandering child
pornography under § 2252A(a)(3)(B) and one count of pos
sessing child pornography under § 2252A(a)(5)(B). He
pleaded guilty to both counts but reserved the right to chal
lenge the constitutionality of the pandering conviction. The
District Court rejected his challenge, and imposed concur
rent 60-month prison terms on the two counts and a statu
tory assessment of $100 for each count, see 18 U. S. C. § 3013.
No. 04–20299–CR–MIDDLEBROOKS (SD Fla., Aug. 20,
2004), App. B to Pet. for Cert. 46a–69a. The United States
Court of Appeals for the Eleventh Circuit reversed the pan
dering conviction, holding that the statute was both over
broad and impermissibly vague. 444 F. 3d, at 1308–1309.
We granted certiorari. 549 U. S. 1304 (2007).
II
A
According to our First Amendment overbreadth doctrine,
a statute is facially invalid if it prohibits a substantial
amount of protected speech. The doctrine seeks to strike a
balance between competing social costs. Virginia v. Hicks,
539 U. S. 113, 119–120 (2003). On the one hand, the threat
of enforcement of an overbroad law deters people from en
gaging in constitutionally protected speech, inhibiting the
free exchange of ideas. On the other hand, invalidating a
law that in some of its applications is perfectly constitu
tional—particularly a law directed at conduct so antisocial
that it has been made criminal—has obvious harmful effects.
In order to maintain an appropriate balance, we have vigor
ously enforced the requirement that a statute’s overbreadth
be substantial, not only in an absolute sense, but also rela
tive to the statute’s plainly legitimate sweep. See Board of
Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 485

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(1989); Broadrick v. Oklahoma, 413 U. S. 601, 615 (1973).
Invalidation for overbreadth is “ ‘ “strong medicine” ’ ” that is
not to be “casually employed.” Los Angeles Police Dept. v.
United Reporting Publishing Corp., 528 U. S. 32, 39 (1999)
(quoting Ferber, 458 U. S., at 769).
The first step in overbreadth analysis is to construe the
challenged statute; it is impossible to determine whether a
statute reaches too far without first knowing what the stat
ute covers. Generally speaking, § 2252A(a)(3)(B) prohibits
offers to provide and requests to obtain child pornography.
The statute does not require the actual existence of child
pornography. In this respect, it differs from the statutes in
Ferber, Osborne, and Free Speech Coalition, which prohib
ited the possession or distribution of child pornography.
Rather than targeting the underlying material, this statute
bans the collateral speech that introduces such material into
the child-pornography distribution network. Thus, an In
ternet user who solicits child pornography from an under
cover agent violates the statute, even if the officer possesses
no child pornography. Likewise, a person who advertises
virtual child pornography as depicting actual children also
falls within the reach of the statute.
The statute’s definition of the material or purported mate
rial that may not be pandered or solicited precisely tracks
the material held constitutionally proscribable in Ferber and
Miller: obscene material depicting (actual or virtual) chil
dren engaged in sexually explicit conduct, and any other ma
terial depicting actual children engaged in sexually explicit
conduct. See Free Speech Coalition, 535 U. S., at 245–246
(stating that the First Amendment does not protect obscen
ity or pornography produced with actual children); id., at 256
(holding invalid the challenged provision of the CPPA be
cause it “cover[ed] materials beyond the categories recog
nized in Ferber and Miller”).
A number of features of the statute are important to our
analysis:

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First, the statute includes a scienter requirement. The
first word of § 2252A(a)(3)—“knowingly”—applies to both of
the immediately following subdivisions, both the previously
existing § 2252A(a)(3)(A) 1 and the new § 2252A(a)(3)(B) at
issue here. We think that the best reading of the term in
context is that it applies to every element of the two provi
sions. This is not a case where grammar or structure en
ables the challenged provision or some of its parts to be read
apart from the “knowingly” requirement. Here “know
ingly” introduces the challenged provision itself, making
clear that it applies to that provision in its entirety; and
there is no grammatical barrier to reading it that way.
Second, the statute’s string of operative verbs—“adver
tises, promotes, presents, distributes, or solicits”—is reason
ably read to have a transactional connotation. That is to
say, the statute penalizes speech that accompanies or seeks
to induce a transfer of child pornography—via reproduction
or physical delivery—from one person to another. For three
of the verbs, this is obvious: Advertising, distributing, and
soliciting are steps taken in the course of an actual or pro
posed transfer of a product, typically but not exclusively in
a commercial market. When taken in isolation, the two re
maining verbs—“promotes” and “presents”—are susceptible
of multiple and wide-ranging meanings. In context, how
ever, those meanings are narrowed by the commonsense
canon of noscitur a sociis—which counsels that a word is
given more precise content by the neighboring words with
which it is associated. See Jarecki v. G. D. Searle & Co., 367
U. S. 303, 307 (1961); 2A N. Singer & J. Singer, Sutherland
Statutes and Statutory Construction § 47:16 (7th ed. 2007).
“Promotes,” in a list that includes “solicits,” “distributes,”
and “advertises,” is most sensibly read to mean the act of
recommending purported child pornography to another per
1 Section 2252A(a)(3)(A) (2000 ed., Supp. V) reads: “reproduces any child
pornography for distribution through the mails, or in interstate or foreign
commerce by any means, including by computer.”

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son for his acquisition. See American Heritage Dictionary
1403 (4th ed. 2000) (def. 4: “To attempt to sell or popularize
by advertising or publicity”). Similarly, “presents,” in the
context of the other verbs with which it is associated, means
showing or offering the child pornography to another person
with a view to his acquisition. See id., at 1388 (def. 3a: “To
make a gift or award of ”). (The envisioned acquisition, of
course, could be an electronic one, for example, reproduction
of the image on the recipient’s computer screen.)
To be clear, our conclusion that all the words in this list
relate to transactions is not to say that they relate to com
mercial transactions. One could certainly “distribute” child
pornography without expecting payment in return. Indeed,
in much Internet file sharing of child pornography each par
ticipant makes his files available for free to other par
ticipants—as Williams did in this case. “Distribution may
involve sophisticated pedophile rings or organized crime
groups that operate for profit, but in many cases, is carried
out by individual amateurs who seek no financial reward.”
Child Pornography on the Internet 9. To run afoul of the
statute, the speech need only accompany or seek to in
duce the transfer of child pornography from one person to
another.
Third, the phrase “in a manner that reflects the belief ”
includes both subjective and objective components. “[A]
manner that reflects the belief ” is quite different from
“a manner that would give one cause to believe.” The first
formulation suggests that the defendant must actually have
held the subjective “belief ” that the material or purported
material was child pornography. Thus, a misdescription
that leads the listener to believe the defendant is offering
child pornography, when the defendant in fact does not be
lieve the material is child pornography, does not violate this
prong of the statute. (It may, however, violate the “manner
. . . that is intended to cause another to believe” prong if
the misdescription is intentional.) There is also an objective

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component to the phrase “manner that reflects the belief.”
The statement or action must objectively manifest a belief
that the material is child pornography; a mere belief, without
an accompanying statement or action that would lead a rea
sonable person to understand that the defendant holds that
belief, is insufficient.
Fourth, the other key phrase, “in a manner . . . that is
intended to cause another to believe,” contains only a subjec
tive element: The defendant must “intend” that the listener
believe the material to be child pornography, and must select
a manner of “advertising, promoting, presenting, distribut
ing, or soliciting” the material that he thinks will engender
that belief—whether or not a reasonable person would think
the same. (Of course in the ordinary case the proof of
the defendant’s intent will be the fact that, as an objective
matter, the manner of “advertising, promoting, presenting,
distributing, or soliciting” plainly sought to convey that the
material was child pornography.)
Fifth, the definition of “sexually explicit conduct” (the vis
ual depiction of which, engaged in by an actual minor, is cov
ered by the Act’s pandering and soliciting prohibition even
when it is not obscene) is very similar to the definition of
“sexual conduct” in the New York statute we upheld against
an overbreadth challenge in Ferber. That defined “sexual
conduct” as “ ‘actual or simulated sexual intercourse, deviate
sexual intercourse, sexual bestiality, masturbation, sado
masochistic abuse, or lewd exhibition of the genitals.’ ” 458
U. S., at 751. Congress used essentially the same constitu
tionally approved definition in the present Act. If anything,
the fact that the defined term here is “sexually explicit con
duct,” rather than (as in Ferber) merely “sexual conduct,”
renders the definition more immune from facial constitu
tional attack. “[S]imulated sexual intercourse” (a phrase
found in the Ferber definition as well) is even less susceptible
here of application to the sorts of sex scenes found in R-rated
movies—which suggest that intercourse is taking place with

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out explicitly depicting it, and without causing viewers to
believe that the actors are actually engaging in intercourse.
“Sexually explicit conduct” connotes actual depiction of the
sex act rather than merely the suggestion that it is occur
ring. And “simulated” sexual intercourse is not sexual in
tercourse that is merely suggested, but rather sexual inter
course that is explicitly portrayed, even though (through
camera tricks or otherwise) it may not actually have oc
curred. The portrayal must cause a reasonable viewer to
believe that the actors actually engaged in that conduct
on camera. Critically, unlike in Free Speech Coalition,
§ 2252A(a)(3)(B)(ii)’s requirement of a “visual depiction of an
actual minor” makes clear that, although the sexual inter
course may be simulated, it must involve actual children (un
less it is obscene). This change eliminates any possibility
that virtual child pornography or sex between youthful
looking adult actors might be covered by the term “simu
lated sexual intercourse.”
B
We now turn to whether the statute, as we have construed
it, criminalizes a substantial amount of protected expres
sive activity.
Offers to engage in illegal transactions are categorically
excluded from First Amendment protection. Pittsburgh
Press Co. v. Pittsburgh Comm’n on Human Relations, 413
U. S. 376, 388 (1973); Giboney v. Empire Storage & Ice Co.,
336 U. S. 490, 498 (1949). One would think that this princi
ple resolves the present case, since the statute criminalizes
only offers to provide or requests to obtain contraband—
child obscenity and child pornography involving actual chil
dren, both of which are proscribed, see 18 U. S. C. § 1466A(a),
§ 2252A(a)(5)(B) (2000 ed., Supp. V), and the proscription of
which is constitutional, see Free Speech Coalition, 535 U. S.,
at 245–246, 256. The Eleventh Circuit, however, believed
that the exclusion of First Amendment protection extended
only to commercial offers to provide or receive contraband:

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“Because [the statute] is not limited to commercial speech
but extends also to non-commercial promotion, presentation,
distribution, and solicitation, we must subject the content
based restriction of the PROTECT Act pandering provision
to strict scrutiny . . . .” 444 F. 3d, at 1298.
This mistakes the rationale for the categorical exclusion.
It is based not on the less privileged First Amendment sta
tus of commercial speech, see Central Hudson Gas & Elec.
Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557, 562–563
(1980), but on the principle that offers to give or receive what
it is unlawful to possess have no social value and thus, like
obscenity, enjoy no First Amendment protection, see
Pittsburgh Press, supra, at 387–389.2 Many long estab
lished criminal proscriptions—such as laws against conspir
acy, incitement, and solicitation—criminalize speech (com
mercial or not) that is intended to induce or commence illegal
activities. See, e. g., ALI, Model Penal Code § 5.02(1) (1985)
(solicitation to commit a crime); § 5.03(1)(a) (conspiracy to
commit a crime). Offers to provide or requests to obtain
unlawful material, whether as part of a commercial exchange
or not, are similarly undeserving of First Amendment pro
tection. It would be an odd constitutional principle that
permitted the government to prohibit offers to sell illegal
drugs, but not offers to give them away for free.
To be sure, there remains an important distinction be
tween a proposal to engage in illegal activity and the ab
2 In Pittsburgh Press, the newspaper argued that we should afford that
category of commercial speech which consists of help-wanted ads the same
level of First Amendment protection as noncommercial speech, because of
its important information-exchange function. We replied: “Whatever the
merits of this contention may be in other contexts, it is unpersuasive in
this case. Discrimination in employment is not only commercial activity,
it is illegal commercial activity . . . . We have no doubt that a newspaper
constitutionally could be forbidden to publish a want ad proposing a sale
of narcotics or soliciting prostitutes.” 413 U. S., at 388. The import of
this response is that noncommercial proposals to engage in illegal activity
have no greater protection than commercial proposals to do so.

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stract advocacy of illegality. See Brandenburg v. Ohio, 395
U. S. 444, 447–448 (1969) (per curiam); see also NAACP v.
Claiborne Hardware Co., 458 U. S. 886, 928–929 (1982). The
Act before us does not prohibit advocacy of child pornogra
phy, but only offers to provide or requests to obtain it.
There is no doubt that this prohibition falls well within con
stitutional bounds. The constitutional defect we found in
the pandering provision at issue in Free Speech Coalition
was that it went beyond pandering to prohibit possession of
material that could not otherwise be proscribed. 535 U. S.,
at 258.
In sum, we hold that offers to provide or requests to obtain
child pornography are categorically excluded from the First
Amendment. Since the Eleventh Circuit erroneously con
cluded otherwise, it applied strict scrutiny to § 2252A(a)
(3)(B), lodging three fatal objections. We address these
objections because they could be recast as arguments that
Congress has gone beyond the categorical exception.
The Eleventh Circuit believed it a constitutional difficulty
that no child pornography need exist to trigger the statute.
In its view, the fact that the statute could punish a “brag
gart, exaggerator, or outright liar” rendered it unconsti
tutional. 444 F. 3d, at 1298. That seems to us a strange
constitutional calculus. Although we have held that the
government can ban both fraudulent offers, see, e. g., Illinois
ex rel. Madigan v. Telemarketing Associates, Inc., 538 U. S.
600, 611–612 (2003), and offers to provide illegal products,
the Eleventh Circuit would forbid the government from pun
ishing fraudulent offers to provide illegal products. We see
no logic in that position; if anything, such statements are
doubly excluded from the First Amendment.
The Eleventh Circuit held that under Brandenburg, the
“non-commercial, non-inciteful promotion of illegal child por
nography” is protected, and § 2252A(a)(3)(B) therefore over
reaches by criminalizing the promotion of child pornography.
444 F. 3d, at 1298. As we have discussed earlier, however,

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the term “promotes” does not refer to abstract advocacy,
such as the statement “I believe that child pornography
should be legal” or even “I encourage you to obtain child
pornography.” It refers to the recommendation of a partic
ular piece of purported child pornography with the intent of
initiating a transfer.
The Eleventh Circuit found “particularly objectionable”
the fact that the “reflects the belief ” prong of the statute
could ensnare a person who mistakenly believes that mate
rial is child pornography. Ibid. This objection has two
conceptually distinct parts. First, the Eleventh Circuit
thought that it would be unconstitutional to punish someone
for mistakenly distributing virtual child pornography as real
child pornography. We disagree. Offers to deal in illegal
products or otherwise engage in illegal activity do not ac
quire First Amendment protection when the offeror is mis
taken about the factual predicate of his offer. The pander
ing and solicitation made unlawful by the Act are sorts of
inchoate crimes—acts looking toward the commission of an
other crime, the delivery of child pornography. As with
other inchoate crimes—attempt and conspiracy, for exam
ple—impossibility of completing the crime because the facts
were not as the defendant believed is not a defense. “All
courts are in agreement that what is usually referred to as
‘factual impossibility’ is no defense to a charge of attempt.”
2 W. LaFave, Substantive Criminal Law § 11.5(a)(2) (2d ed.
2003). (The author gives as an example “the intended sale
of an illegal drug [that] actually involved a different sub
stance.” Ibid.) See also United States v. Hamrick, 43
F. 3d 877, 885 (CA4 1995) (en banc) (holding that impossibil
ity is no defense to attempt and citing the holdings of four
other Circuits); ALI, Model Penal Code § 5.01, Comment,
p. 307 (in attempt prosecutions “the defendant’s conduct
should be measured according to the circumstances as he be
lieves them to be, rather than the circumstances as they may
have existed in fact”).

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Under this heading the Eleventh Circuit also thought that
the statute could apply to someone who subjectively believes
that an innocuous picture of a child is “lascivious.” (Clause
(v) of the definition of “sexually explicit conduct” is “lascivi
ous exhibition of the genitals or pubic area of any person.”
§ 2256(2)(A) (2000 ed., Supp. V).) That is not so. The
defendant must believe that the picture contains certain
material, and that material in fact (and not merely in his
estimation) must meet the statutory definition. Where the
material at issue is a harmless picture of a child in a bath
tub and the defendant, knowing that material, erroneously
believes that it constitutes a “lascivious exhibition of the
genitals,” the statute has no application.
Williams and amici raise other objections, which demon
strate nothing so forcefully as the tendency of our over
breadth doctrine to summon forth an endless stream of fan
ciful hypotheticals. Williams argues, for example, that a
person who offers nonpornographic photographs of young
girls to a pedophile could be punished under the statute if
the pedophile secretly expects that the pictures will contain
child pornography. Brief for Respondent 19–20. That hy
pothetical does not implicate the statute, because the offeror
does not hold the belief or intend the recipient to believe that
the material is child pornography.
Amici contend that some advertisements for mainstream
Hollywood movies that depict underage characters having
sex violate the statute. Brief for Free Speech Coalition
et al. as Amici Curiae 9–18. We think it implausible that a
reputable distributor of Hollywood movies, such as Amazon.
com, believes that one of these films contains actual children
engaging in actual or simulated sex on camera; and even
more implausible that Amazon.com would intend to make its
customers believe such a thing. The average person under
stands that sex scenes in mainstream movies use nonchild
actors, depict sexual activity in a way that would not rise to

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the explicit level necessary under the statute, or, in most
cases, both.
There was raised at oral argument the question whether
turning child pornography over to the police might not count
as “present[ing]” the material. See Tr. of Oral Arg. 9–11.
An interpretation of “presents” that would include turning
material over to the authorities would of course be self
defeating in a statute that looks to the prosecution of people
who deal in child pornography. And it would effectively
nullify § 2252A(d), which provides an affirmative defense to
the possession ban if a defendant promptly delivers child
pornography to a law-enforcement agency. (The possession
offense would simply be replaced by a pandering offense for
delivering the material to law-enforcement officers.) In any
event, the verb “present”—along with “distribute” and “ad
vertise,” as well as “give,” “lend,” “deliver,” and “trans
fer”—was used in the definition of “promote” in Ferber. See
458 U. S., at 751 (quoting N. Y. Penal Law Ann. § 263.15 (Mc-
Kinney 1980)). Despite that inclusion, we had no difficulty
concluding that the New York statute survived facial chal
lenge. And in the period since Ferber, despite similar statu
tory definitions in other state statutes, see, e. g., Alaska Stat.
§ 11.61.125(d) (2006), Del. Code Ann., Tit. 11, § 1109(5) (2007),
we are aware of no prosecution for giving child pornography
to the police. We can hardly say, therefore, that there is a
“realistic danger” that § 2252A(a)(3)(B) will deter such ac
tivity. New York State Club Assn., Inc. v. City of New
York, 487 U. S. 1, 11 (1988) (citing Thornhill v. Alabama, 310
U. S. 88, 97–98 (1940)).
It was also suggested at oral argument that the statute
might cover documentary footage of atrocities being com
mitted in foreign countries, such as soldiers raping young
children. See Tr. of Oral Arg. 5–7. Perhaps so, if the mate
rial rises to the high level of explicitness that we have held
is required. That sort of documentary footage could of
course be the subject of an as-applied challenge. The courts

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presumably would weigh the educational interest in the dis
semination of information about the atrocities against the
government’s interest in preventing the distribution of mate
rials that constitute “a permanent record” of the children’s
degradation whose dissemination increases “the harm to the
child.” Ferber, supra, at 759. Assuming that the constitu
tional balance would have to be struck in favor of the docu
mentary, the existence of that exception would not establish
that the statute is substantially overbroad. The “mere fact
that one can conceive of some impermissible applications
of a statute is not sufficient to render it susceptible to an
overbreadth challenge.” Members of City Council of Los
Angeles v. Taxpayers for Vincent, 466 U. S. 789, 800 (1984).
In the vast majority of its applications, this statute raises no
constitutional problems whatever.
Finally, the dissent accuses us of silently overruling our
prior decisions in Ferber and Free Speech Coalition. See
post, at 320 (opinion of Souter, J.). According to the dis
sent, Congress has made an end run around the First
Amendment’s protection of virtual child pornography by pro
hibiting proposals to transact in such images rather than pro
hibiting the images themselves. But an offer to provide or
request to receive virtual child pornography is not prohib
ited by the statute. A crime is committed only when the
speaker believes or intends the listener to believe that the
subject of the proposed transaction depicts real children. It
is simply not true that this means “a protected category of
expression [will] inevitably be suppressed,” post, at 321.
Simulated child pornography will be as available as ever, so
long as it is offered and sought as such, and not as real child
pornography. The dissent would require an exception from
the statute’s prohibition when, unbeknownst to one or both
of the parties to the proposal, the completed transaction
would not have been unlawful because it is (we have said)
protected by the First Amendment. We fail to see what
First Amendment interest would be served by drawing a

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distinction between two defendants who attempt to acquire
contraband, one of whom happens to be mistaken about the
contraband nature of what he would acquire. Is Congress
prohibited from punishing those who attempt to acquire
what they believe to be national-security documents, but
which are actually fakes? To ask is to answer. There is no
First Amendment exception from the general principle of
criminal law that a person attempting to commit a crime
need not be exonerated because he has a mistaken view of
the facts.
III
As an alternative ground for facial invalidation, the Elev
enth Circuit held that § 2252A(a)(3)(B) is void for vagueness.
Vagueness doctrine is an outgrowth not of the First Amend
ment, but of the Due Process Clause of the Fifth Amend
ment. A conviction fails to comport with due process if the
statute under which it is obtained fails to provide a person
of ordinary intelligence fair notice of what is prohibited, or
is so standardless that it authorizes or encourages seriously
discriminatory enforcement. Hill v. Colorado, 530 U. S. 703,
732 (2000); see also Grayned v. City of Rockford, 408 U. S.
104, 108–109 (1972). Although ordinarily “[a] plaintiff who
engages in some conduct that is clearly proscribed cannot
complain of the vagueness of the law as applied to the con
duct of others,” we have relaxed that requirement in the
First Amendment context, permitting plaintiffs to argue that
a statute is overbroad because it is unclear whether it regu
lates a substantial amount of protected speech. Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489,
494–495, and nn. 6 and 7 (1982); see also Reno v. American
Civil Liberties Union, 521 U. S. 844, 870–874 (1997). But
“perfect clarity and precise guidance have never been re
quired even of regulations that restrict expressive activity.”
Ward v. Rock Against Racism, 491 U. S. 781, 794 (1989).
The Eleventh Circuit believed that the phrases “ ‘in a man
ner that reflects the belief ’ ” and “ ‘in a manner . . . that

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is intended to cause another to believe’ ” are “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 con
formed.” 444 F. 3d, at 1306. The court gave two examples.
First, an e-mail claiming to contain photograph attachments
and including a message that says “ ‘little Janie in the bath—
hubba, hubba!’ ” Ibid. According to the Eleventh Circuit,
given that the statute does not require the actual existence
of illegal material, the Government would have “virtually
unbounded discretion” to deem such a statement in violation
of the “ ‘reflects the belief ’ ” prong. Ibid. The court’s sec
ond example was an e-mail entitled “ ‘Good pics of kids in
bed’ ” with a photograph attachment of toddlers in pajamas
asleep in their beds. Ibid. The court described three hy
pothetical senders: a proud grandparent, a “chronic for
warder of cute photos with racy tongue-in-cheek subject
lines,” and a child molester who seeks to trade the photo
graphs for more graphic material. Id., at 1306–1307. Ac
cording to the Eleventh Circuit, because the “manner” in
which the photographs are sent is the same in each case, and
because the identity of the sender and the content of the
photographs are irrelevant under the statute, all three send
ers could arguably be prosecuted for pandering. Id., at
1307.
We think that neither of these hypotheticals, without fur
ther facts, would enable a reasonable juror to find, beyond a
reasonable doubt, that the speaker believed and spoke in a
manner that reflected the belief, or spoke in a manner in
tended to cause another to believe, that the pictures dis
played actual children engaged in “sexually explicit conduct”
as defined in the Act. The prosecutions would be thrown
out at the threshold.
But the Eleventh Circuit’s error is more fundamental than
merely its selection of unproblematic hypotheticals. Its
basic mistake lies in the belief that the mere fact that close
cases can be envisioned renders a statute vague. That is not

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so. Close cases can be imagined under virtually any statute.
The problem that poses is addressed, not by the doctrine of
vagueness, but by the requirement of proof beyond a reason
able doubt. See In re Winship, 397 U. S. 358, 363 (1970).
What renders a statute vague is not the possibility that it
will sometimes be difficult to determine whether the incrimi
nating fact it establishes has been proved; but rather the
indeterminacy of precisely what that fact is. Thus, we have
struck down statutes that tied criminal culpability to
whether the defendant’s conduct was “annoying” or “inde
cent”—wholly subjective judgments without statutory defi
nitions, narrowing context, or settled legal meanings. See
Coates v. Cincinnati, 402 U. S. 611, 614 (1971); Reno, supra,
at 870–871, and n. 35.
There is no such indeterminacy here. The statute re
quires that the defendant hold, and make a statement that
reflects, the belief that the material is child pornography; or
that he communicate in a manner intended to cause another
so to believe. Those are clear questions of fact. Whether
someone held a belief or had an intent is a true-or-false de
termination, not a subjective judgment such as whether con
duct is “annoying” or “indecent.” Similarly true or false is
the determination whether a particular formulation reflects
a belief that material or purported material is child pornog
raphy. To be sure, it may be difficult in some cases to deter
mine whether these clear requirements have been met.
“But courts and juries every day pass upon knowledge, belief
and intent—the state of men’s minds—having before them
no more than evidence of their words and conduct, from
which, in ordinary human experience, mental condition may
be inferred.” American Communications Assn. v. Douds,
339 U. S. 382, 411 (1950) (citing 2 J. Wigmore, Evidence
§§ 244, 256 et seq. (3d ed. 1940)). And they similarly pass
every day upon the reasonable import of a defendant’s state
ments—whether, for example, they fairly convey a false rep

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Stevens, J., concurring
resentation, see, e. g., 18 U. S. C. § 1621 (criminalizing per
jury), or a threat of physical injury, see, e. g., § 115(a)(1)
(criminalizing threats to assault federal officials). Thus, the
Eleventh Circuit’s contention that § 2252A(a)(3)(B) gives
law-enforcement officials “virtually unfettered discretion”
has no merit. No more here than in the case of laws against
fraud, conspiracy, or solicitation.
* * *
Child pornography harms and debases the most defense
less of our citizens. Both the State and Federal Govern
ments have sought to suppress it for many years, only to
find it proliferating through the new medium of the Internet.
This Court held unconstitutional Congress’s previous at
tempt to meet this new threat, and Congress responded with
a carefully crafted attempt to eliminate the First Amend
ment problems we identified. As far as the provision at
issue in this case is concerned, that effort was successful.
The judgment of the Eleventh Circuit is reversed.
It is so ordered.
Justice Stevens, with whom Justice Breyer joins,
concurring.
My conclusion that this statutory provision is not facially
unconstitutional is buttressed by two interrelated considera
tions on which the Court finds it unnecessary to rely. First,
I believe the result to be compelled by the principle that
“every reasonable construction must be resorted to, in order
to save a statute from unconstitutionality,” Hooper v. Cali
fornia, 155 U. S. 648, 657 (1895); see also Edward J. DeBar
tolo Corp. v. Florida Gulf Coast Building & Constr. Trades
Council, 485 U. S. 568, 575 (1988) (collecting cases).
Second, to the extent the statutory text alone is unclear,
our duty to avoid constitutional objections makes it espe
cially appropriate to look beyond the text in order to ascer
tain the intent of its drafters. It is abundantly clear from

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308 UNITED STATES v. WILLIAMS
Stevens, J., concurring
the provision’s legislative history that Congress’ aim was to
target materials advertised, promoted, presented, distrib
uted, or solicited with a lascivious purpose—that is, with the
intention of inciting sexual arousal. The provision was de
scribed throughout the deliberations in both Houses of Con
gress as the “pandering” or “pandering and solicitation” pro
vision, despite the fact that the term “pandering” appears
nowhere in the statute. See, e. g., 149 Cong. Rec. 4227 (2003)
(“[T]he bill criminalizes the pandering of child pornography,
creating a new crime to respond to the Supreme Court’s re
cent ruling [in Ashcroft v. Free Speech Coalition, 535 U. S.
234 (2002)]” (statement of Sen. Leahy, bill’s cosponsor)); H. R.
Conf. Rep. No. 108–66, p. 61 (2003) (“[The bill] includes a new
pandering provision . . . that prohibits advertising, promot
ing, presenting, distributing, or soliciting . . . child pornogra
phy” (internal quotation marks omitted)); S. Rep. No. 108–2,
p. 10 (2003) (“S. 151 creates three new offenses . . . . One
prohibits the pandering or solicitation of child pornogra
phy”); id., at 16 (“[T]he bill criminalizes the pandering of
child pornography”).
The Oxford English Dictionary defines the verb “pander,”
as “to minister to the gratification of (another’s lust),” 11
Oxford English Dictionary 129 (2d ed. 1989). And Black’s
Law Dictionary provides, as relevant, this definition of “pan
dering”: “The act or offense of selling or distributing textual
or visual material (such as magazines or videotapes) openly
advertised to appeal to the recipient’s sexual interest.”
Black’s Law Dictionary 1142 (8th ed. 2004) (hereinafter
Black’s).1 Consistent with these dictionary definitions, our
cases have explained that “pandering” is “ ‘the business of
purveying textual or graphic matter openly advertised to ap
peal to the erotic interest,’ ” Ginzburg v. United States, 383
1 The first definition offered is: “The act or offense of recruiting a prosti
tute, finding a place of business for a prostitute, or soliciting customers for
a prostitute.” Black’s 1142.

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U. S. 463, 467, and n. 7 (1966) (quoting Roth v. United States,
354 U. S. 476, 495–496 (1957)).2
It was against this backdrop that Congress crafted the
provision we uphold today. Both this context and the state
ments surrounding the provision’s enactment convince me
that in addition to the other limitations the Court properly
concludes constrain the reach of the statute, the heightened
scienter requirements described ante, at 295–296, contain an
element of lasciviousness.
The dissent argues that the statute impermissibly under
mines our First Amendment precedents insofar as it covers
proposals to transact in constitutionally protected material.
It is true that proof that a pornographic but not obscene
representation did not depict real children would place that
representation on the protected side of the line. But any
constitutional concerns that might arise on that score are
surely answered by the construction the Court gives the
statute’s operative provisions; that is, proposing a transac
tion in such material would not give rise to criminal liability
under the statute unless the defendant actually believed, or
intended to induce another to believe, that the material in
question depicted real children.
Accordingly, when material which is protected—particu
larly if it possesses serious literary, artistic, political, or sci
entific value—is advertised, promoted, presented, distrib
uted, or solicited for some lawful and nonlascivious purpose,
such conduct is not captured by the statutory prohibition.
Cf. Miller v. California, 413 U. S. 15, 24–25 (1973).
2 As I have explained elsewhere, Ginzburg has long since lost its force
as law, see, e. g., FW/PBS, Inc. v. Dallas, 493 U. S. 215, 249 (1990) (opinion
concurring in part and dissenting in part) (“Ginzburg was decided before
the Court extended First Amendment protection to commercial speech
and cannot withstand our decision in Virginia Bd. of Pharmacy v. Vir
ginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976)”). Still, the
case’s explication of the meaning of “pandering” is instructive.

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310 UNITED STATES v. WILLIAMS
Souter, J., dissenting
Justice Souter, with whom Justice Ginsburg joins,
dissenting.
Dealing in obscenity is penalized without violating the
First Amendment, but as a general matter pornography
lacks the harm to justify prohibiting it. If, however, a pho
tograph (to take the kind of image in this case) shows an
actual minor child as a pornographic subject, its transfer and
even its possession may be made criminal. New York v. Fer
ber, 458 U. S. 747, 765–766 (1982); Osborne v. Ohio, 495 U. S.
103, 110–111 (1990). The exception to the general rule rests
not on the content of the picture but on the need to foil the
exploitation of child subjects, Ferber, 458 U. S., at 759–760,
and the justification limits the exception: only pornographic
photographs of actual children may be prohibited, see id., at
763, 764; Ashcroft v. Free Speech Coalition, 535 U. S. 234,
249–251 (2002). Thus, just six years ago the Court struck
down a statute outlawing particular material merely repre
sented to be child pornography, but not necessarily depicting
actual children. Id., at 257–258.
The Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today Act of 2003 (Act), 117 Stat.
650, was enacted in the wake of Free Speech Coalition. The
Act responds by avoiding any direct prohibition of transac
tions in child pornography 1 when no actual minors may be
pictured; instead, it prohibits proposals for transactions in
pornography when a defendant manifestly believes or would
induce belief in a prospective party that the subject of an
exchange or exhibition is or will be an actual child, not an
impersonated, simulated or “virtual” one, or the subject of a
1 I use “child pornography” to mean any pornographic representation
(such as a photograph, as in this case) that includes what appears to be a
child subject. “True” or “real” child pornography refers to images made
directly in pornographic settings with models who are minors; “fake” re
fers to simulations, components of lawful photos spliced together, or those
made with adults looking young enough to be mistaken for minors.

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composite created from lawful photos spliced together. The
Act specifically prohibits three types of those proposals. It
outlaws solicitation of child pornography, as well as two dis
tinct kinds of offers: those “advertis[ing]” or “promot[ing]”
prosecutable child pornography, which recommend the mate
rial with the implication that the speaker can make it avail
able, and those “present[ing]” or “distribut[ing]” such child
pornography, which make the material available to anyone
who chooses to take it. 18 U. S. C. § 2252A(a)(3)(B) (2000
ed., Supp. V).
The Court holds it is constitutional to prohibit these pro
posals, and up to a point I do not disagree. In particular,
I accept the Court’s explanation that Congress may criminal
ize proposals unrelated to any extant image. I part ways
from the Court, however, on the regulation of proposals
made with regard to specific, existing representations.
Under the new law, the elements of the pandering offense
are the same, whether or not the images are of real children.
As to those that do not show real children, of course, a trans
action in the material could not be prosecuted consistently
with the First Amendment, and I believe that maintaining
the First Amendment protection of expression we have pre
viously held to cover fake child pornography requires a limit
to the law’s criminalization of pandering proposals. In fail
ing to confront the tension between ostensibly protecting the
material pandered while approving prosecution of the pan
dering of that same material, and in allowing the new pan
dering prohibition to suppress otherwise protected speech,
the Court undermines Ferber and Free Speech Coalition in
both reasoning and result. This is the significant element of
today’s holding, and I respectfully dissent from it.
I
The easy case for applying the Act would be a proposal to
obtain or supply child pornography supposedly showing a
real child, when the solicitation or offer is unrelated to any

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image (that is, when the existence of pornographic “mate
rial” was merely “purported”). See ante, at 293 (“The stat
ute does not require the actual existence of child pornogra
phy”). A proposal speaking of a pornographic photograph
of a child is (absent any disclaimer or qualification) under
stood to mean a photo of an actual child; the reasonable as
sumption is that people desiring child pornography are not
looking for fake child pornography, so that those who speak
about it mean the real thing. Hence, someone who seeks to
obtain child pornography (having no specific artifact in mind)
“solicits” an unlawful transfer of contraband. 18 U. S. C.
§ 2252A(a)(3)(B). On the other side of that sort of proposed
transaction, someone with nothing to supply or having only
nonexpressive matter who purports to present, distribute,
advertise, or promote child pornography also proposes an il
legal transaction. In both cases, the activity would amount
to an offer to traffic in child pornography that may be sup
pressed, and the First Amendment does not categorically
protect offers to engage in illegal transactions. To the ex
tent the speaker intended to mislead others, a conviction
would also square with the unprotected status of fraud, see
ante, at 299; and even a nonfraudulent speaker who mistak
enly believed he could obtain the forbidden contraband to
transfer to anyone who accepted an offer could be validly
convicted consistent with the general rule of criminal law,
that attempting to commit a crime is punishable even though
the completed crime might (or would) turn out to be impossi
ble in fact, see ante, at 300.
The easy cases for constitutional application of the Act are
over, however, when one gets to proposals for transactions
related to extant pornographic objects, like photos in a deal
er’s inventory, for example. These will in fact be the com
mon cases, as the legislative findings attest. See §§ 501(1)–
(15), 117 Stat. 676–678. Congress did not pass the Act to
catch unsuccessful solicitors or fraudulent offerors with no
photos to sell; rather, it feared that “[t]he mere prospect that

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the technology exists to create composite or computer
generated depictions that are indistinguishable from de
pictions of real children will allow defendants who possess
images of real children to escape prosecution . . . . This
threatens to render child pornography laws that protect real
children unenforceable.” Id., § 501(13).
A person who “knowingly” proposes a transaction in an
extant image incorporates into the proposal an understand
ing that the subject of the proposal is or includes that image.
Cf. ante, at 300 (“[‘Promotes’] refers to the recommendation
of a particular piece of purported child pornography . . . ”).
Congress understood that underlying most proposals there
will be an image that shows a child, and the proposal refer
ring to an actual child’s picture will thus amount to a pro
posal to commit an independent crime such as a transfer of
child pornography, see 18 U. S. C. §§ 2252A(a)(1), (2). But
even when actual pictures thus occasion proposals, the Act
requires no finding that an actual child be shown in the por
nographic setting in order to prove a violation. And the fair
assumption (apparently made by Congress) is that in some
instances, the child pornography in question will be fake,
with the picture showing only a simulation of a child, for
example, or a very young-looking adult convincingly passed
off as a child; in those cases the proposal is for a transaction
that could not itself be made criminal, because the absence
of a child model means that the image is constitutionally pro
tected. See Free Speech Coalition, 535 U. S., at 246. But
under the Act, that is irrelevant. What matters is not the
inclusion of an actual child in the image, or the validity of
forbidding the transaction proposed; what counts is simply
the manifest belief or intent to cause a belief that a true
minor is shown in the pornographic depiction referred to.
The tension with existing constitutional law is obvious.
Free Speech Coalition reaffirmed that nonobscene virtual
pornographic images are protected, because they fail to trig
ger the concern for child safety that disentitles child pornog

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raphy to First Amendment protection. See id., at 249–251.
The case thus held that pictures without real minors (but
only simulations, or young-looking adults) may not be the
subject of a nonobscenity pornography crime, id., at 246,
251, and it has reasonably been taken to mean that transac
tions in pornographic pictures featuring children may not be
punished without proof of real children, see, e. g., United
States v. Salcido, 506 F. 3d 729, 733 (CA9 2007) (per curiam)
(“In [Free Speech Coalition], the Supreme Court held that
possession of ‘virtual’ child pornography cannot constitute a
criminal offense. . . . As a result, the government has the
burden of proving beyond a reasonable doubt that the images
were of actual children, not computer-generated images”);
cf. Free Speech Coalition, supra, at 255 (“The Government
raises serious constitutional difficulties by seeking to impose
on the defendant the burden of proving his speech is not
unlawful”). The Act, however, punishes proposals regard
ing images when the inclusion of actual children is not estab
lished by the prosecution, as well as images that show no
real children at all; and this, despite the fact that, under Free
Speech Coalition, the first proposed transfer could not be
punished without the very proof the Act is meant to dispense
with, and the second could not be made criminal at all.
II
What justification can there be for making independent
crimes of proposals to engage in transactions that may in
clude protected materials? The Court gives three answers,
none of which comes to grips with the difficulty raised by
the question. The first, ante, at 303, says it is simply wrong
to say that the Act makes it criminal to propose a lawful
transaction, since an element of the forbidden proposal must
express a belief or inducement to believe that the subject of
the proposed transaction shows actual children. But this
does not go to the point. The objection is not that the Act
criminalizes a proposal for a transaction described as being

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in virtual (that is, protected) child pornography. The point
is that some proposals made criminal, because they express
a belief that they refer to real child pornography, will relate
to extant material that does not, or cannot be, demonstrated
to show real children and so may not be prohibited. When
a proposal covers existing photographs, the Act does not re
quire that the requisite belief (manifested or encouraged) in
the reality of the subjects be a correct belief. Prohibited
proposals may relate to transactions in lawful, as well as un
lawful, pornography.
Much the same may be said about the Court’s second an
swer, that a proposal to commit a crime enjoys no speech
protection. Ante, at 297. For the reason just given, that
answer does not face up to the source of the difficulty: the
action actually contemplated in the proposal, the transfer of
the particular image, is not criminal if it turns out that an
actual child is not shown in the photograph. If Ferber and
Free Speech Coalition are good law, the facts sufficient for
conviction under the Act do not suffice to show that the
image (perhaps merely simulated), and thus a transfer of that
image, are outside the bounds of constitutional protection.
For this reason, it is not enough just to say that the First
Amendment does not protect proposals to commit crimes.
For that rule rests on the assumption that the proposal is
actually to commit a crime, not to do an act that may turn
out to be no crime at all. Why should the general rule of
unprotected criminal proposals cover a case like the proposal
to transfer what may turn out to be fake child pornography?
The Court’s third answer analogizes the proposal to an
attempt to commit a crime, and relies on the rule of criminal
law that an attempt is criminal even when some impediment
makes it impossible to complete the criminal act (the possible
impediment here being the advanced age, say, or simulated
character of the child figure). See ante, at 300. Al
though the actual transfer the speaker has in mind may not
turn out to be criminal, the argument goes, the transfer in

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tended by the speaker is criminal, because the speaker be
lieves 2 that the contemplated transfer will be of real child
pornography, and transfer of real child pornography is crimi
nal. The fact that the circumstances are not as he believes
them to be, because the material does not depict actual mi
nors, is no defense to his attempt to engage in an unlawful
transaction.
But invoking attempt doctrine to dispense with Free
Speech Coalition’s real-child requirement in the circum
stances of this case is incoherent with the Act, and it fails
to fit the paradigm of factual impossibility or qualify for
an extended version of that rule. The incoherence of the
Court’s answer with the scheme of the Act appears from
§ 2252A(b)(1) (2000 ed., Supp. V), which criminalizes attempt
ing or conspiring to violate the Act’s substantive prohibi
tions, including the pandering provision of § 2252A(a)(3)(B).
Treating pandering itself as a species of attempt would thus
mean that there is a statutory, inchoate offense of attempting
to attempt to commit a substantive child pornography crime.
A metaphysician could imagine a system like this, but the
2 I leave largely aside the case of fraudulent proposals passing off virtual
pornography as the real thing. The fact that fraud is a separate category
of speech which independently lacks First Amendment protection changes
the analysis with regard to such proposals, although it does not necessarily
dictate the conclusion. The Court has placed limits on the policing of
fraud when it cuts too far into other protected speech. See, e. g., Riley v.
National Federation of Blind of N. C., Inc., 487 U. S. 781, 787–795 (1988)
(invalidating professional fundraiser regulation under strict scrutiny).
Also relevant to the analysis would be that the Act is hardly a consumer
protection statute; Congress seems to have cared little for the interests of
would-be child pornography purchasers, and the penalties for violating the
Act are quite onerous compared with other consumer-protection laws.
See Brief for American Booksellers Foundation for Free Expression et al.
as Amici Curiae 17, and n. 8 (identifying laws punishing fraud as a misde
meanor or with civil penalties). A court could legitimately question
whether the unprotected status of fraud enables the Government to punish
the transfer of otherwise protected speech with penalties so apparently
disproportionate to the harm that fraud is understood to cause.

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universe of inchoate crimes is not expandable indefinitely
under the actual principles of criminal law, let alone when
First Amendment protection is threatened. See 2 W. La-
Fave, Substantive Criminal Law § 11.2(a), p. 208 (2d ed. 2003)
(“[W]here a certain crime is actually defined in terms of
either doing or attempting a certain crime, then the argu
ment that there is no crime of attempting this attempt is
persuasive”).
The more serious failure of the attempt analogy, however,
is its unjustifiable extension of the classic factual frustration
rule, under which the action specifically intended would be a
criminal act if completed. The intending killer who mistak
enly grabs the pistol loaded with blanks would have com
mitted homicide if bullets had been in the gun; it was only
the impossibility of completing the very intended act of
shooting bullets that prevented the completion of the crime.
This is not so, however, in the proposed transaction in an
identified pornographic image without the showing of a real
child; no matter what the parties believe, and no matter how
exactly a defendant’s actions conform to his intended course
of conduct in completing the transaction he has in mind, if
there turns out to be reasonable doubt that a real child was
used to make the photos, or none was, there could be, respec
tively, no conviction and no crime. Thus, in the classic im
possibility example, there is attempt liability when the
course of conduct intended cannot be completed owing to
some fact which the defendant was mistaken about, and
which precludes completing the intended physical acts. But
on the Court’s reasoning there would be attempt liability
even when the contemplated acts had been completed exactly
as intended, but no crime had been committed. Why should
attempt liability be recognized here (thus making way for
“proposal” liability, under the Court’s analogy)?
The Court’s first response is to demur, with its example of
the drug dealer who sells something else. Ante, at 300. (A
package of baking powder, not powder cocaine, would be an

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example.) No one doubts the dealer may validly be con
victed of an attempted drug sale even if he did not know
it was baking powder he was selling. Yet selling bak
ing powder is no more criminal than selling virtual child
pornography.
This response does not suffice, however, because it over
looks a difference between the lawfulness of selling baking
powder and the lawful character of virtual child pornogra
phy. Powder sales are lawful but not constitutionally privi
leged. Any justification within the bounds of rationality
would suffice for limiting baking powder transactions, just
as it would for regulating the discharge of blanks from a
pistol. Virtual pornography, however, has been held to fall
within the First Amendment speech privilege, and thus is
affirmatively protected, not merely allowed as a matter of
course. The question stands: why should a proposal that
may turn out to cover privileged expression be subject to
standard attempt liability?
The Court’s next response deals with the privileged char
acter of the underlying material. It gives another example
of attempt that presumably could be made criminal, in the
case of the mistaken spy, who passes national security docu
ments thinking they are classified and secret, when in fact
they have been declassified and made subject to public in
spection. Ante, at 303–304. Publishing unclassified docu
ments is subject to the First Amendment privilege and can
claim a value that fake child pornography cannot. The
Court assumes that the document publication may be pun
ished as an attempt to violate state-secret restrictions (and
I assume so too); then why not attempt proposals based on
a mistaken belief that the underlying material is real child
pornography? As the Court looks at it, the deterrent value
that justifies prosecuting the mistaken spy (like the mistaken
drug dealer and the intending killer) would presumably vali
date prosecuting those who make proposals about fake child
pornography. But it would not, for there are significant dif

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ferences between the cases of security documents and por
nography without real children.
Where Government documents, blank cartridges, and bak
ing powder are involved, deterrence can be promoted with
out compromising any other important policy, which is not
true of criminalizing mistaken child pornography proposals.
There are three dispositive differences. As for the first, if
the law can criminalize proposals for transactions in fake as
well as true child pornography as if they were like attempts
to sell cocaine that turned out to be baking powder, constitu
tional law will lose something sufficiently important to have
made it into multiple holdings of this Court, and that is the
line between child pornography that may be suppressed and
fake child pornography that falls within First Amendment
protection. No one can seriously assume that after today’s
decision the Government will go on prosecuting defendants
for selling child pornography (requiring a showing that a real
child is pictured, under Free Speech Coalition, 535 U. S., at
249–251); it will prosecute for merely proposing a pornogra
phy transaction manifesting or inducing the belief that a
photo is real child pornography, free of any need to demon
strate that any extant underlying photo does show a real
child. If the Act can be enforced, it will function just as
it was meant to do, by merging the whole subject of child
pornography into the offense of proposing a transaction, dis
pensing with the real-child element in the underlying sub
ject. And eliminating the need to prove a real child will be
a loss of some consequence. This is so not because there
will possibly be less pornography available owing to the
greater ease of prosecuting, but simply because there must
be a line between what the Government may suppress and
what it may not, and a segment of that line will be gone.
This Court went to great pains to draw it in Ferber and Free
Speech Coalition; it was worth drawing and it is worth re
specting now in facing the attempt to end-run that line
through the provisions of the Act.

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The second reason for treating child pornography differ
ently follows from the first. If the deluded drug dealer is
held liable for an attempt crime there is no risk of eliminat
ing baking powder from trade in lawful commodities. Like
wise, if the mistaken spy is convicted of attempting to
disclose classified national security documents there will be
no worry that lawful speech will be suppressed as a conse
quence; any unclassified documents in question can be quoted
in the newspaper, other unclassified documents will circulate,
and analysts of politics and foreign policy will be able to rely
on them. But if the Act can effectively eliminate the real
child requirement when a proposal relates to extant mate
rial, a class of protected speech will disappear. True, what
will be lost is short on merit, but intrinsic value is not the
reason for protecting unpopular expression.
Finally, if the Act stands when applied to identifiable, ex
tant pornographic photographs, then in practical terms Fer
ber and Free Speech Coalition fall. They are left as empty
as if the Court overruled them formally, and when a case
as well considered and as recently decided as Free Speech
Coalition is put aside (after a mere six years) there ought
to be a very good reason. Another pair of First Amendment
cases come to mind, compare Minersville School Dist. v.
Gobitis, 310 U. S. 586 (1940), with West Virginia Bd. of Ed.
v. Barnette, 319 U. S. 624 (1943). In Barnette, the Court set
out the reason for its abrupt turn in overruling Gobitis after
three years, 319 U. S., at 635–642, but here nothing is ex
plained. Attempts with baking powder and unclassified doc
uments can be punished without damage to confidence in
precedent; suppressing protected pornography cannot be.
These differences should be dispositive. Eliminating the
line between protected and unprotected speech, guarantee
ing the suppression of a category of expression previously
protected, and reducing recent and carefully considered
First Amendment precedents to empty shells are heavy
prices, not to be paid without a substantial offset, which is

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missing from this case. Hence, my answer that there is no
justification for saving the Act’s attempt to get around our
holdings. We should hold that a transaction in what turns
out to be fake pornography is better understood, not as an
incomplete attempt to commit a crime, but as a completed
series of intended acts that simply do not add up to a crime,
owing to the privileged character of the material the parties
were in fact about to deal in.
The upshot is that there ought to be no absolute rule on
the relationship between attempt liability and a frustrating
mistake. Not all attempts frustrated by mistake should be
punishable, and not all mistaken assumptions that expressive
material is unprotected should bar liability for attempts to
commit a crime. The legitimacy of attempt liability should
turn on its consequences for protected expression and the
law that protects it. When, as here, a protected category
of expression would inevitably be suppressed and its First
Amendment safeguard left pointless, the Government has
the burden to justify this damage to free speech.
III
Untethering the power to suppress proposals about extant
pornography from any assessment of the likely effects the
proposals might have has an unsettling significance well be
yond the subject of child pornography. For the Court is
going against the grain of pervasive First Amendment doc
trine that tolerates speech restriction not on mere general
tendencies of expression, or the private understandings of
speakers or listeners, but only after a critical assessment
of practical consequences. Thus, one of the milestones of
American political liberty is Brandenburg v. Ohio, 395 U. S.
444 (1969) (per curiam), which is seen as the culmination of a
half century’s development that began with Justice Holmes’s
dissent in Abrams v. United States, 250 U. S. 616 (1919). In
place of the rule that dominated the First World War sedi
tion and espionage cases, allowing suppression of speech for

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its tendency and the intent behind it, see Schenck v. United
States, 249 U. S. 47, 52 (1919), Brandenburg insisted that
“the constitutional guarantees of free speech and free
press do not permit a State to forbid or proscribe advo
cacy of the use of force or of law violation except where
such advocacy is directed to inciting or producing immi
nent lawless action and is likely to incite or produce such
action.” 395 U. S., at 447.
See also G. Stone, Perilous Times: Free Speech in Wartime
522 (2004) (“[E]xactly fifty years after Schenck, the Supreme
Court finally and unambiguously embraced the Holmes-
Brandeis version of clear and present danger”).
Brandenburg unmistakably insists that any limit on speech
be grounded in a realistic, factual assessment of harm. This
is a far cry from the Act before us now, which rests criminal
prosecution for proposing transactions in expressive mate
rial on nothing more than a speaker’s statement about the
material itself, a statement that may disclose no more than
his own belief about the subjects represented or his desire
to foster belief in another. This should weigh heavily in the
overbreadth balance, because “First Amendment freedoms
are most in danger when the government seeks to control
thought or to 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 speech is
the beginning of thought.” Free Speech Coalition, 535
U. S., at 253. See also Hurley v. Irish-American Gay, Les
bian and Bisexual Group of Boston, Inc., 515 U. S. 557, 579
(1995) (“The very idea that a noncommercial speech restric
tion be used to produce thoughts and statements acceptable
to some groups or, indeed, all people, grates on the First
Amendment, for it amounts to nothing less than a proposal
to limit speech in the service of orthodox expression. The
Speech Clause has no more certain antithesis”).

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IV
I said that I would not pay the price enacted by the Act
without a substantial justification, which I am at a loss to
find here. I have to assume that the Court sees some
grounding for the Act that I do not, however, and I suppose
the holding can only be explained as an uncritical acceptance
of a claim made both to Congress and to this Court. In each
forum the Government argued that a jury’s appreciation of
the mere possibility of simulated or virtual child pornogra
phy will prevent convictions for the real thing, by inevitably
raising reasonable doubt about whether actual children are
shown. The Government voices the fear that skeptical ju
rors will place traffic in child pornography beyond effective
prosecution unless it can find some way to avoid the Ferber
limitation, skirt Free Speech Coalition, and allow prosecu
tion whether pornography shows actual children or not.
The claim needs to be taken with a grain of salt. There
has never been a time when some such concern could not
be raised. Long before the Act was passed, for example,
pornographic photos could be taken of models one day into
adulthood, and yet there is no indication that prosecution has
ever been crippled by the need to prove young-looking mod
els were underage.
Still, if I were convinced there was a real reason for the
Government’s fear stemming from computer simulation,
I would be willing to reexamine Ferber. Conditions can
change, and if today’s technology left no other effective way
to stop professional and amateur pornographers from ex
ploiting children there would be a fair claim that some de
gree of expressive protection had to yield to protect the
children.
But the Government does not get a free pass whenever it
claims a worthy objective for curtailing speech, and I have
further doubts about the need claimed here. Although Con
gress found that child pornography defendants “almost uni

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versally rais[e]” the defense that the alleged child pornogra
phy could be simulated or virtual, § 501(10), 117 Stat. 677,
neither Congress nor this Court has been given the citation
to a single case in which a defendant’s acquittal is reasonably
attributable to that defense.3 See Brief for Free Speech Co
3 During hearings prior to passage of the Act, the Department of Justice
presented Congress with three examples of prosecutions purportedly frus
trated by a virtual-child defense. See Hearing on H. R. 1104 and H. R.
1161 before the Subcommittee on Crime, Terrorism, and Homeland Secu
rity of the House Committee on the Judiciary, 108th Cong., 1st Sess., 9
(2003) (statement of Daniel P. Collins, Associate Deputy Attorney Gen
eral). In United States v. Bunnell, No. CRIM.02–13–B–S, 2002 WL
927765 (D Me., May 1, 2002), the court allowed the defendant to withdraw
his guilty plea after the Ashcroft v. Free Speech Coalition, 535 U. S. 234
(2002), decision. The defendant did not, however, present a virtual-child
defense to a jury, nor was he acquitted; indeed the court rejected his mo
tion to dismiss, see Criminal Docket for Case No. 1:02CR00013 (D Me.).
(The docket report also indicates that the defendant’s trial was then con
tinued during his prosecution in state court, with the Government moving
to dismiss upon receipt of a judgment and commitment from the state
court. See ibid.)
In United States v. Reilly, No. 01 CR. 1114(RPP), 2002 WL 31307170
(SDNY, Oct. 15, 2002), the court also allowed a defendant to withdraw a
guilty plea after the issuance of Free Speech Coalition, because his plea
was founded on a belief that the Government need not prove the involve
ment of actual children in the material at issue. (After the time of the
congressional hearings, the court dismissed the child pornography charges
upon the Government’s motion, and the defendant was convicted on multi
ple counts of transportation of obscene material under 18 U. S. C. § 1462.
See Criminal Docket for Case No. 1:01CR01114 (SDNY).)
In United States v. Sims, 220 F. Supp. 2d 1222 (NM 2002), the defendant
was convicted after a jury trial at which the Government contended, and
the court agreed, that it did not bear the burden of proving that the im
ages at issue depicted actual minors. The Free Speech Coalition decision
came down soon afterward, and the defendant filed a post-trial motion for
acquittal. The trial court held that the Government did bear the burden
of proof and had met it with regard to one count but not with regard to
another, upon which it had presented no evidence of the use of actual
children. The trial court acquitted the defendant on the latter count, ob
serving that “[t]he government could have taken a more cautionary ap
proach and presented evidence to prove the use of actual children, but it

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alition et al. as Amici Curiae 21–23; Brief for National Law
Center for Children and Families et al. as Amici Curiae 10–
13. The Government thus seems to be selling itself short;
it appears to be highly successful in convicting child pornog
raphers, the overwhelming majority of whom plead guilty
rather than try their luck before a jury with a virtual-child
defense.4 And little seems to have changed since the time
made the strategic decision not to do so.” 220 F. Supp. 2d, at 1227. The
Government did not seek review of this ruling on appeal.
In short, all of the cases presented to Congress involved the short-term
transition on the burden-of-proof issue occasioned by the Free Speech Co
alition decision; none of them involved a jury or judge’s acquittal of a
defendant on the basis of a virtual-child defense.
Nor do the Government’s amici identify other successful employments
of a virtual-child defense. One amicus says that Free Speech Coalition
spawned serious prosecutorial problems, but the only example it gives of
an acquittal is a defendant’s partial acquittal in an Ohio bench trial under
an Ohio statute, where the judge convicted the defendant of counts involv
ing images for which the prosecution presented expert testimony of the
minor’s identity and acquitted him of counts for which it did not. See
Brief for National Law Center for Children and Families et al. as Amici
Curiae 11 (citing State v. Tooley, No. 2004–P–0064, 2005–Ohio–6709, 2005
WL 3476649 (App., Dec. 16, 2005)). The State apparently did not cross
appeal the acquittals, but in considering defendant’s appeal of his convic
tions, the Supreme Court of Ohio held that his hearsay objection to the
Government’s expert was irrelevant, because “[Free Speech Coalition] did
not impose a heightened evidentiary burden on the state to specifically
identify the child or to use expert testimony to prove that the image con
tains a real child.” 114 Ohio St. 3d 366, 381, 2007–Ohio–3698, 872 N. E.
2d 894, 908 (2007). Rather, “[t]he fact-finder in this case, the trial judge,
was capable of reviewing the evidence to determine whether the state met
its burden of showing that the images depicted real children.” Id., at 382,
872 N. E. 2d, at 909. The case hardly bespeaks a prosecutorial crisis.
4 According to the U. S. Department of Justice Bureau of Justice Statis
tics, in the 1,209 federal child pornography cases concluded in 2006, 95.1%
of defendants were convicted. Bureau of Justice Statistics Bulletin, Fed
eral Prosecution of Child Sex Exploitation Offenders, 2006, p. 6 (Dec.
2007), online at http://www.ojp.usdoj.gov/ bjs/pub/pdf/fpcseo06.pdf (as
visited May 8, 2008, and available in Clerk of Court’s case file). By com
parison, of the 161 child pornography cases concluded in 1996, 96.9% of

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of Free Speech Coalition, when the Court rejected an asser
tion of the same interest. See 535 U. S., at 254–255 (“[T]he
Government says that the possibility of producing images
by using computer imaging makes it very difficult for it to
prosecute those who produce pornography by using real
children. . . . The necessary solution, the argument runs, is
to prohibit both kinds of images. The argument, in essence,
is that protected speech may be banned as a means to ban
unprotected speech. This analysis turns the First Amend
ment upside down”); id., at 259 (Thomas, J., concurring
in judgment) (“At this time . . . the Government asserts
only that defendants raise such defenses, not that they have
done so successfully. In fact, the Government points to no
case in which a defendant has been acquitted based on a
‘computer-generated images’ defense”).
Without some convincing evidence to the contrary, experi
ence tells us to have faith in the capacity of the jury system,
which I would have expected to operate in much the follow
defendants were convicted. Ibid. Of the 2006 cases, 92.2% ended with
a plea. Ibid. The 4.9% of defendants not convicted in 2006 was made up
of 4.5% whose charges were dismissed, and only 0.4% who were not con
victed at trial. Ibid.
Nor do the statistics suggest a crisis in the ability to prosecute. In
2,376 child pornography matters concluded by U. S. Attorneys in 2006,
58.5% of them were prosecuted, while 37.8% were declined for prosecution,
and 3.7% were disposed by a U. S. magistrate judge. Id., at 2. By com
parison, the prosecution rate for all matters concluded by U. S. Attorneys
in 2006 was 59%. Ibid. Nor did weak evidence make up a disproportion
ate part of declined prosecutions. Of the child pornography cases de
clined for prosecution, 24.3% presented problems of weak or inadmissible
evidence; 22.7% were declined for lack of evidence of criminal intent; and
in 18.7% the suspects were prosecuted on other charges. Id., at 3. In
comparison, weak or inadmissible evidence accounted for 53% of declined
prosecutions for sex abuse and 20.4% for sex transportation, both sexual
exploitation crimes which do not easily admit of a virtual-child defense.
Ibid.
None of these data, to be sure, isolates the experience between Free
Speech Coalition and the current Act, or breaks down the post-Act num
bers by reference to prosecution under the Act. If the generality of the

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327 Cite as: 553 U. S. 285 (2008)
Souter, J., dissenting
ing way, if the Act were not on the books. If the Govern
ment sought to prosecute proposals about extant images as
attempts, it would seek to carry its burden of showing that
real children were depicted in the image subject to the pro
posal simply by introducing the image into evidence; if the
figures in the picture looked like real children, the Govern
ment would have made its prima facie demonstration on that
element.5 The defense might well offer expert testimony to
the effect that technology can produce convincing simula
tions, but if this was the extent of the testimony that came
in, the cross-examination would ask whether the witness
could say that this particular, seemingly authentic represen
tation was merely simulated. If the witness could say that
(or said so on direct), and survived further questioning about
the basis for the opinion and its truth, acquittal would have
been proper; the defendant would have raised reasonable
doubt about whether a child had been victimized (the same
standard that would govern if the defendant were on trial
for abusing a child personally). But if the defense had no
specific evidence that the particular image failed to show ac
tual children, I am skeptical that a jury would have been
likely to entertain reasonable doubt that the image showed
a real child.
Perhaps I am wrong, but without some demonstration that
juries have been rendering exploitation of children unpunish
able, there is no excuse for cutting back on the First Amend
ment and no alternative to finding overbreadth in this Act.
I would hold it unconstitutional on the authority of Ferber
and Free Speech Coalition.
statistics is a problem, however, it is for the Government, which makes
the necessity claim.
5 The Courts of Appeals to consider the issue have declined to require
expert evidence to prove the authenticity of images, generally finding the
images themselves sufficient to prove the depiction of actual minors. See,
e. g., United States v. Salcido, 506 F. 3d 729, 733–734 (CA9 2007) (per
curiam) (collecting cases).