It ended with an awkward silence and a puzzled look on the Justices’ faces. Apparently, Mr. Richard Diaz (no relation to this author), counsel for the Respondent in U.S. v Williams, had no other argument to make. Everyone in the room was stunned, and after a couple of seconds, though it seemed like an eternity, he thanked the Justices and sat down.
It was the unhappy ending of a rocky argument that seemed insincere at best.
That is not to say that Solicitor General Paul D. Clement didn’t have some hurdles in his own oral argument — none more frustrating than arguing for a broader reading of the statute than Chief Justice John Roberts and Justice Stephen Breyer had understood from Petitioner’s own brief. But the government’s argument seemed to have a firm foundation in facts, evidence and compelling interests, while Respondent’s argument seemed more like a Hollywood script, filled with fantasy and hyperbole.
The facts are these: On April 26, 2004, Michael Williams posted a public message in an Internet chat room, which read, “Dad of toddler has ‘good’ pics of her an [sic] me for swap of your toddler pics, or live cam.” A federal agent who was monitoring the forum responded to the message and engaged the individual in conversation. In one of his responses Williams said, “I’ve got hc [hard core] pictures of me and dau, and other guys eating her out — do you??” Williams later sent seven nude images of actual minors, approximately 5-15 years old, exposing themselves and/or engaging in sexually explicit conduct.
Mr. Williams was charged with two counts of possession of child pornography and promoting and distributing child pornography. After reserving the right to bring this constitutional action, he pleaded guilty to both counts.
The statute under which Mr. Williams was charged prohibits “knowingly … advertis[ing], promot[ing], present[ing], distribut[ing], or solicit[ing] … 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 illegal child pornography. He appealed his conviction, saying the statute is overly broad and impermissibly vague and thus facially unconstitutional.
His argument goes like this:
Imagine: you could have someone reviewing American Beauty or Traffic — both Hollywood movies with some objectionable adult content — saying the movies depicted child pornography. Whether that assertion is true or not, the person can be charged under this statute. So, clearly there is protected speech that is reached by this statute, and, therefore, it is too broad or at least impermissibly vague.