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>> William H. Rehnquist: Mr. Clement. >> Paul D. Clement: Mr. Chief Justice and
may it please the court: In 1996 Congress updated the child *** laws to keep
pace with technological developments. Congress extended the existing prohibitions
on visual depictions of actual children engaged in sexually explicit conduct to cover virtually
indistinguishable images in material pandered as child ***.
These provisions are constitutional for the same basic reason that other laws prohibiting
child *** have been upheld. They protect real children from real abuse.
They do so in two important ways. First, by preventing the publication and production
of materials that are as effective as traditional child *** in seducing children, and
second, by allowing the government to effectively prosecute cases involving traditional forms
of child ***. First, these provisions allow the government
to attack material that poses the same risk of enticing children into illicit *** activities
and to pose for child *** as traditional child ***.
The government has a clear and compelling interest in targeting such material; indeed,
this court in Osborne against Ohio used that rationale to uphold Ohio's prohibition on
the possession of child ***. Second and equally important, the government
has a clear interest in promoting the effective prosecution of the traditional laws against
traditional forms of child ***. The advent and increasing availability of
computer technology has allowed individuals to generate computer images that are virtually
indistinguishable from traditional photographs. This allows criminal defendants to inject
reasonable doubt arguments into virtually every case.
>> David H. Souter: Has any case, to your knowledge, been lost on that ground in which
that was a substantial argument? >> Paul D. Clement: No case has been lost
on that ground but that is largely a result of the 1996 Act, which has taken that argument
away from criminal defendants. And to give you one very specific example,
the case that the Fifth Circuit heard in the Fox case, United States against Fox which
is one of the cases where the lower courts upheld this law in an as applied context,
the government's expert witness, Special Agent Barkhausen was forced on cross-examination
to admit that she could not tell definitively whether or not the image was of a real child.
Now that concession prior to the 1996 Act would likely have been fatal to the government's
prosecution. >> John Paul Stevens: Was that because she
couldn't tell whether the real child was over 18 or under 18 or because she couldn't tell
whether it was a real person? >> Paul D. Clement: That case was because
she couldn't tell it was a real person. >> John Paul Stevens: Wouldn't she have the
same difficulty on the distinction between an 18-year-old and a 19-year-old?
>> Paul D. Clement: In the cases where the line that the courts are concerned with is
the line between 18 and 19, there's an additional aspect of the statute that clears up many
of the problems and that's the affirmative defense which allows individuals to produce
and distribute materials if they make clear they involve actual individuals who are over
18. >> Ruth Bader Ginsburg: But in terms of what
you outlined, in terms of the two dangers, you say just the same as if it were an actual
child. Well, if it's a very young adult who looks
like a child, it seems to me everything that you said about the virtual *** would
apply to a young adult who looks like a child. >> Paul D. Clement: That's certainly true,
but I think Congress in recognizing an affirmative defense for materials that were produced using
people who had reached the age of majority struck a balance and recognized that this
Court has provided additional protection to pornographic depictions involving actual adults.
>> David H. Souter: Okay, well the question of the balance raises the question of tailoring,
and what I wanted to ask you was if it's appropriate to have the affirmative defense that the children
or that the people depicted were in fact over 18, why isn't it equally appropriate to have
an affirmative defense to the effect that the depiction does not have anyone who is
not a real child under 18. In other words, if the government's interests
are protected by the affirmative defense in the real child case, why shouldn't there be
a comparable affirmative defense for the simulation. >> Paul D. Clement: I think there are at least
two reasons for that differential treatment. One is with respect to age that's a fact that's
uniquely verifiable and in a lot of contexts we recognize that somebody's age is something
that one can verify. And in fact what we're really talking about
in most of these cases where the affirmative defense for age would be implicated are films
and the like where there would be witnesses who could testify that somebody was of a particular
age on a particular date. >> David H. Souter: But in effect you're depending
on the witness to say that the actors here were in fact over 18.
Maybe they'll produce facsimiles of birth certificates or maybe they'll produce children
or whatnot. Why can't you have the same evidence to the
effect that there were no real children being used in manufacturing the film?
You're depending on witnesses in each case. >> Paul D. Clement: Well, in most of the cases
when you're talking about somebody who's going to make the claim that they actually generated
the photographs themselves, there will be no witnesses.
But I think more important than the presence or absence of witnesses is--
>> David H. Souter: But that's a question of proof and I suppose that if the only person
who steps up to the stand and says, there were no live children here, is the person
who was accused of the ***, that person may have something to worry about in not having
a very convincing affirmative defense. But that's the defendant's problem, not the
government's problem. And so I don't think that answers the question,
why if the government is sufficiently protected with the affirmative defense in the one class
of cases it wouldn't be in the other. >> Paul D. Clement: --And I do think that
age rather than whether an image is computerally generated is something that is uniquely subject
to verification and this Court in its Ferber decision confronted the argument that the
New York statute was overbroad because it didn't limit its protections to photographs
and images that were produced in the state of New York.
And the court rejected that overbreadth argument for two reasons; one, that it would be virtually
impossible for anybody to prove what was the state of origin for the photo.
And I think the same analysis applies for a computer generated image.
The second reason, of course, was that even materials--
>> John Paul Stevens: Why is it... why is it that witnesses can explain the age but
cannot explain whether it was computer generated? >> Paul D. Clement: --Because, again, in sort
of the stylized case that the person who's computer generated an image, that's not something
that requires a film crew to be brought in so there aren't necessarily going to be witnesses.
In the case-- >> David H. Souter: But that's not the government's
problem. I mean, that may be the problem of the person
who has the burden of proof to carry on the affirmative defense and if it is a problem
then the government is the... in effect going to be the winning party in resolving that
problem, but like Justice Stevens, I don't see what is essentially unique in the probative
process to acclaim that it was a computer generation rather than a claim that the kid
shown was over 18. >> Paul D. Clement: --Well, I'm not sure it's
absolutely unique but I do think age is uniquely subject to verification.
And if I could get to the second reason that this Court pointed out in Ferber why you didn't
need to have a limitation just to pictures generated in the State of New York, the Court
recognized in footnote 19 that those materials, even if produced outside the State of New
York, pose harms and potential risk to children inside the State of New York.
>> Sandra Day O'Connor: Mr. Clement, may I ask you a question again relating to the affirmative
defenses or youthful adult ***. There appears to be no affirmative defense
for possession of something that in fact used adults, is that right?
>> Paul D. Clement: That's right as a matter of the statute.
There's no express affirmative defense for possession.
>> Sandra Day O'Connor: Well, let's relate that to something that perhaps a number of
people in this courtroom have seen. The film, Traffic, which depicts I guess someone
who purports to be under 18 engaged in conduct that would fit under the definition of the
statute to be banned, right. >> Paul D. Clement: I believe that's true.
>> Sandra Day O'Connor: Did you see it? >> Paul D. Clement: I did see it.
[Laughter] >> Sandra Day O'Connor: Okay.
So presumably it would be covered. Now, there is no defense to someone who rents
the movie, they possess it, no affirmative defense.
>> Paul D. Clement: There's no affirmative defense for possession but I think what the
statute does is it effectively makes it so that in virtually, in the vast majority of
cases where the producers and distributors of a film will be able to claim the affirmative
defense, the individual possessor will be able to claim the affirmative defense because
of a failure of the government's ability to prove scienter, because if you think about
the affirmative defense it gives people the ability to distribute a movie if it involves
actors. But if they have the right to distribute a
movie that nobody can lawfully possess, it doesn't give them much, that's not much comfort
to them. >> Stephen G. Breyer: I don't understand.
I mean I buy at the video store three films, Traffic, Lolita, and Titanic.
Each film has a scene of simulated *** behavior by 17-year-olds, all right?
I think that was the question. The question is, why am I not guilty under
your interpretation of the statute of a federal crime for possessing those three films?
>> Paul D. Clement: There's two reasons. One is precisely in order to deal with this
anomaly that they don't want to be producing a film that nobody can lawfully possess, the
affirmative defense gives an incentive to producers and distributors to make it clear
in the marketing of the material that those scenes that you're talking about were scenes
that were produced using adults or scenes used with body doubles, and so in that sense
through the marketing of the material they can make it clear to people that it involved
adults. >> Sandra Day O'Connor: There is the defense
for the producer, but there isn't for the person who rents the film.
It's just I-- >> Paul D. Clement: Exactly.
>> Sandra Day O'Connor: --I'm struck by what we're supposed to do with a statute like this.
>> Paul D. Clement: There is a requirement, though, that the government prove scienter
with respect to age in any prosecution for possession and I don't see how the government
could prove scienter as to age in the case of these films where they're marketed in a
way where it's clear that they involve adult actors.
There's a second aspect in which this Court could find the affirmative defense to cover
individuals and that... individual possessors, and that is the statute does give an affirmative
defense for receipt and as the government argued in its briefs that naturally would
cover possession incident to receipt. What it doesn't cover, though, and why I think
Congress didn't have a blanket affirmative defense for possession is it doesn't apply
to somebody who receives some material that's marketed in a way or has a disclaimer that
makes it clear that it involves adult actors, but then the individual somehow modifies it,
strips out the disclaimer. In that case, the possession is covered by
the statute and I think rightly so. >> John Paul Stevens: Does it trouble you
at all that the statute would prohibit a motion picture company from employing an 18-year-old
actress to play the three roles that Justice Breyer identified?
>> Paul D. Clement: Well, it would trouble me if the statute had that effect but it doesn't
have that effect. The affirmative defense makes it crystal clear.
>> John Paul Stevens: Even though the actress is under the statutory age, 18?
>> Paul D. Clement: Oh, I'm sorry, I thought you said 18.
>> John Paul Stevens: Would it trouble you that the statute would prohibit an 18-year-old
who is a child under the statute from performing those three roles?
>> Paul D. Clement: Well, I think it's 17, but in any event it doesn't trouble me if
it's a 17-year-old is prohibited because they wouldn't be prohibited from playing those
roles if... the studio would have two options. They could either not include the sexually
explicit conduct which is all that's covered by the statute, and I think it would be possible
to have made the film Traffic without involving simulated *** activity.
But putting that to the side, the other option is to use a body double and make it clear
in the marketing of the film that that's precisely what you've done.
>> Stephen G. Breyer: I take it your answer to the question if this afternoon I go out,
go to the video store, buy the three films and bring them home is, yes, I am guilty of
a federal crime. >> Paul D. Clement: Not at all.
You could not be guilty because the government could not prove scienter and because you would
have lawful-- >> Stephen G. Breyer: What do you mean you
can't prove scienter? It says that it is a crime to buy, to possess
a film that has simulated *** activity by persons who appear to be under the age
of 18. Well, I would tell you right now, I think
that film did contain simulated *** activity by persons who appeared to be under the age
of 18. >> Paul D. Clement: --And again--
>> Stephen G. Breyer: I don't think it was real activity, I think it was simulated, and
I think they did appear to me to be under the age of 18.
So am I guilty or not? >> Paul D. Clement: --You are not guilty for
the two reasons that I've said and let me just say that you would have the same problem
with respect to the statute at issue in Ferber. >> Antonin Scalia: Mr. Clement, I'm not sure
what simulated *** activity consists of. I didn't see any of these movies.
[Laughter] >> Stephen G. Breyer: They were pretty good
actually. [Laughter]
>> Antonin Scalia: One described in the briefs supposedly was the shot of a juvenile, whether
played by a juvenile or not, from the waist up supposedly engaged in *** activity.
Would you consider that to be covered by the statute as sexually explicit conduct?
I mean what if it was just the hand? >> Paul D. Clement: Well, certainly if it
was just the hand and certainly... I think there would be certainly a number of ways--
>> Antonin Scalia: Don't you think, I mean the definition of sexually explicit conduct
is and what the statute prohibits is this conduct by minors under 17 or younger, ***
intercourse, engaging in *** intercourse, ***, ***, sadistic or masochistic
abuse or lascivious exhibition of the genitals or *** area.
Now, the government has not made the argument that at least as applied to juveniles this
is unprotected speech anyway and consists of obscenity which a state or federal government
is free, if it wishes, to prohibit? >> Paul D. Clement: --To the contrary, the
government has argued throughout this case that it's all unprotected speech because it's
child ***. And I think--
>> Ruth Bader Ginsburg: Not because it's obscenity, you're creating, you would have us create
yet another category of prohibitive, something that falls totally outside the first amendment.
Have you claimed, as Justice Scalia suggested you might have, that at least some of this
material is obscene and therefore covered without regard to any new, any child ***
catalog... category. >> Paul D. Clement: --Well, I want to be clear,
I think government would take the position that virtually all the material covered by
this statute is independently obscene, but that's not how the government chose to regulate
it. >> John Paul Stevens: If the scene of a head
of a person who the other information in the movie makes it appear they're engaged in ***
intercourse and all that is seen is the head of a male and a female kissing one another,
that would come covered by the statute. >> Paul D. Clement: No, I don't think that
would be covered by the statute. >> John Paul Stevens: Why not?
It's simulated *** intercourse. >> Paul D. Clement: I think you have to read
the term simulated *** intercourse in conjunction with the other terms in the statute.
>> John Paul Stevens: It expressly says there's no patently offensive requirement.
>> Paul D. Clement: That's certainly true but I think if you read the statute in context,
I think there's some requirement that the *** intercourse that would be depicted
would require some display of nudity in the process.
Certainly... well, it doesn't... it may not say that and the statute itself may not address
that case. And I would suggest that the proper way to
resolve that case is in an as applied challenge. Wait for the government to bring that prosecution.
In fact, I think the government won't bring that prosecution.
I mean, it's interesting to talk about the film version of Lolita and the like but that
involves just a tiny fraction of materials covered by this statute, and if you want to
bet-- >> William H. Rehnquist: Ferber pretty much
said that child *** is of almost no value, did it not?
>> Paul D. Clement: --Absolutely, and that's why this material that we're talking about
is all probably virtually, the government could capture it as obscenity but of course
if it tried to do that it couldn't ban the possession, and child *** was treated
as a different case in Ferber. >> William H. Rehnquist: Child ***
is a different case but very much like obscenity. >> Paul D. Clement: Absolutely, like obscenity,
what this Court said in Ferber is the reason the statute was permissible is because it
defined a category of conduct that could be proscribed and was outside the protection
of the First Amendment. >> Ruth Bader Ginsburg: There's a vast difference
between an actual child who was violated and a picture, a simulation in Ferber that you
have relied on so heavily, what do you make of a sentence that is not in the footnote,
it is the text, that simulation outside the prohibition and the prohibition was using
an actual child, simulation outside the prohibition could provide an alternative?
>> Paul D. Clement: Well, let me just clarify one thing because the statute in Ferber itself
also covered simulated *** activity so all these line drawing problems about what,
you know, at what point does the scene in Traffic come under the coverage of the statute
also applied in Ferber because it also captured simulated acts involving adults.
So the only difference between the coverage of this statute and Ferber is that this statute
does attempt to prohibit materials that do not involve actual individuals but are virtually
indistinguishable from-- >> Ruth Bader Ginsburg: Yes, but even that
sentence in Ferber said we're not touching in this case, here we have an actual child
simulation outside that prohibition could provide an alternative.
>> Paul D. Clement: --With respect, I don't think that's what Ferber meant to say.
I mean, Ferber, after all, was decided in 1982.
>> Ruth Bader Ginsburg: It used those words. It used those words.
>> Paul D. Clement: It did, but it was decided in 1982 before this technology even existed.
And interestingly, if you look at footnote 20 in the Ferber opinion the Court went out
of its way to invoke the general doctrine that you don't apply cases before they arise
and you don't adopt a rationale any broader than necessary to decide the case before it.
And it just seems to me-- >> Ruth Bader Ginsburg: What if we read that
sentence as though it were not there? >> Paul D. Clement: --No I think you read
it in the context-- >> Ruth Bader Ginsburg: Not in the opinion.
>> Paul D. Clement: --with respect, I think you treat it in the context of what was prohibited
by the New York statute and the technology that was available at the time.
And I think what's important here is any avenues for speech that were left open in Ferber are
left open by the statute in conjunction with the affirmative defense.
The only materials that are covered by the statute and not covered by Ferber are materials
that didn't exist at the time of Ferber and it seems to me that Congress is entitled to
update the tech... the *** and obscenity laws to deal with technological developments.
The first federal obscenity statute in 1842 didn't cover photographs because the technology
wasn't in widespread use at the time. Subsequently Congress added photographs to
the cover to the obscenity statutes because technology developed and new problems arose.
>> Sandra Day O'Connor: The Court relied very heavily on the notion that if you use actual
children they are harmed, they are actually harmed, so what is the primary reliance that
you make for applying the same prohibition to these video images?
>> Paul D. Clement: Well I think there's... I would make two responses.
First, I think this Court has never strictly limited itself to the protection of the child
depicted in the image and it recognizes that legislatures in Congress have an interest
in protecting all children but secondly-- >> Sandra Day O'Connor: It did seem to me
that the Court, and I was here, played heavy reliance on harm to children.
>> Paul D. Clement: --Absolutely. >> Sandra Day O'Connor: Actual children.
So I'm asking you what is your primary reliance when you don't have that?
>> Paul D. Clement: Well, I don't know that we have to answer that question in this case
because we do have that, because this statute enables the government to continue to prosecute
effectively cases involving traditional forms of child ***, because the advent--
>> Anthony M. Kennedy: But that's not an answer to Justice O'Connor's question.
Basically we're talking here about overbreadth and the government's argument seems to be
that since there is a class of materials that we can proscribe, the fact that it's overly
broad is the respondent's problem. But the law works the other way around, you
have to show that this statute is precise as to its coverage and that it covers no more
and let's just for argument's sake, although I don't think that's the law, concede not
substantially more than what can be prohibited. And Justice O'Connor's question was directed
to this latter problem and it seems to me you're not answering the question.
>> Paul D. Clement: --Well, I'm trying to and I think that, I mean, first of all, even
in an overbreadth challenge the burden does lie on the party challenging the statute and
they have to show things from actual fact in order to challenge the statute and I don't
think they've carried that burden. Second, this statute is responsive to the
problem of protecting both the children depicted in the image and all children who can be seduced
or enticed into this kind of activity can be depicted themselves.
>> Anthony M. Kennedy: But the gravamen of her question, Justice O'Connor can explain
her own question, but as I understood it, is that there's a substantial area here where
adults who are play acting roles of children are covered, and the question is what is the
government's interest in that? >> Paul D. Clement: There isn't an interest
in those play acting cases and that's why the affirmative defense allows those to take
place. But again, the question is as you indicated
substantial overbreadth and these questions we're talking about, about Traffic and the
film version of Lolita really are a tiny fraction of the cases covered by the statute.
>> Stephen G. Breyer: Why is it that the question I really would like you to get to if you can
is one that's really bothering me very much is the question that Justice Scalia asked
and the thing in this area I do not understand, in the entire area is why doesn't Miller work?
There is obviously a set of materials which Justice Stewart used to refer to as I know
it when I see it and that material does not have at its object communication.
It has at its object a certain activity which is not communication.
Now that's all over our society, and why, given this Court's decision in Miller, is
that so? And if I knew the answer to that question
I would be better able to deal with this kind of case.
>> Paul D. Clement: Well, let me first try to say two reasons why I don't think Miller
is directly relevant and if those aren't responsive to your questions, maybe--
>> Stephen G. Breyer: I'd rather not hear why it's directly... not directly relevant
because my question, which is my own problem, not your problem, is I'm trying to understand
the area. There are several cases in this area coming
up, this is not the only one, and I want to know from the government why it is, you've
read in this area, maybe you just should direct me to an article.
The problem I personally am having as a judge is I think what Justice Scalia was driving
at, maybe, that's his question, is why doesn't Miller work.
Now maybe you'll tell me that it does, but that's contrary to my experience because it
seems to me I see much material that would have flunked Justice Stewart's test all over
the place. And it seems to me that that's the material
that parents are worried about their children getting a hold of.
Now, if I knew why Miller was insufficient to deal with that problem I would know better
how to deal with this kind of a case. >> Paul D. Clement: --Well, one reason that
Miller is a difficult case and doesn't... isn't terribly satisfying is it requires a
case by case adjudication of that three-prong test which I would say with deference is not
self-defining. And what Congress decided to do in this context
is follow the lead of Ferber where it said that Miller wasn't the test of child ***
and defined a much clearer class of material that whether or not it applies in Miller,
whether or not the work as a whole is implicated, this is a definable class of material that
is outside the protection of the First Amendment. If you have concerns about the Miller test
then you really should seize upon this statute and Ferber and the analysis in Osborne as
one way to deal with that problem because here's a test that doesn't rely on community
standards or other difficult considerations to apply in practice.
It has a test that says when we're talking about visual depictions only, we're not talking
about novels here, and we're talking about material that depicts children engaged in
sexually explicit conduct then we don't have to look to the value of the work as a whole.
You can put all the Shakespeare around these visual depictions you'd like and they're still
visual depictions of children engaged in sexually explicit conduct.
>> Ruth Bader Ginsburg: Mr. Clement, before you finish there's something of great concern
to me too because it seems that this is a big step away from actual child, injury to
an actual child to the effect on the viewer and the same thing could be said for women
with respect to ***, portraying women in a degrading way.
The same thing could be said for hate speech. So this, where there is no actual child victim,
where it's a picture and you're talking about the effect of that on the viewer, why isn't
it the same for all these other things that can have a very bad effect on the viewer?
>> Paul D. Clement: Well, I think there are two principal reasons why you shouldn't be
worried about that particular slippery slope. One is this Court already put one foot down
that slope in Osborne when it relied on the seduction rationale in conjunction with the
concern for the children who were depicted. And in the same way this statute responds
both to harm, potential harm, to other children in the seduction rationale and to children
actually depicted because as a matter of practical reality it's become very difficult for the
government to prosecute cases involving actual, traditional child ***.
>> Ruth Bader Ginsburg: If you have this out you can use simulated children, that will
protect the actual children from being exploited. Why can't you say one as much as the other?
>> Paul D. Clement: Because I think, as I indicated before, there are real verifiability
problems that don't arise in the context of age that do arise in computer.
The second reason, though, I think that you have to be less worried about the slippery
slope in this context is the government has consistently gone to the courts and told them
to interpret appears to be to cover images that are virtually indistinguishable from
traditional child ***. It doesn't seem to put this Court on a slippery
slope to say that material that is virtually indistinguishable from material that's already
been held to be outside the protection of the First Amendment also will be outside the
protection of the First Amendment. >> John Paul Stevens: Are you asking us to
read that phrase into the statute, the virtually indistinguishable phrase?
>> Paul D. Clement: Well, the virtually indistinguishable phrase already appears in the text of the
statute, it just doesn't appear in the operative provision.
So what we're asking you to do is to read that term, appears to be, in light of the
legislative finding, where it's not just the legislative finding where it's virtually indistinguishable.
>> John Paul Stevens: You're asking us to construe the statute narrowly to apply only
to things that are virtually indistinguishable from actual behavior, it would eliminate cartoons
and that sort of stuff? >> Paul D. Clement: That's absolutely right
and that's the position we've taken in all the lower courts.
>> Sandra Day O'Connor: Even the language that says conveys the impression, you want
us to give the same meaning to that? >> Paul D. Clement: Well, I actually think
that the conveys the impression language could be given that meaning but I think the conveys
the impression language is much less problematic from a constitutional standpoint if you understand
subsection D of the statute to be addressed to pandering and in that context the concerns
about vagueness are much reduced because you're not going to be focused on just the image,
you're going to be focused on the way it's marketed, and I think in that context it won't
be difficult to see whether or not it conveys the image.
I'd like to reserve the remainder of my time for rebuttal.
>> William H. Rehnquist: Very well, Mr. Clement. Mr. Sirkin, we'll hear from you.
>> H. Louis Sirkin: Mr. Chief Justice and may it please the Court: The petitioner's
argument if adopted would have three radical tragic consequences for First Amendment jurisprudence.
First in the name of protecting children all visual messages of adolescent sexuality will
be forever barred regardless of their scientific, artistic or educational value.
Second, countless visual depictions-- >> Antonin Scalia: Excuse me, such as what?
Such as what? You know, I try to think what great works
of art would be taken away from us if we were unable to show minors copulating or any of
the other acts set forth in the definition here.
Can you give me a couple of examples? >> H. Louis Sirkin: --Certainly, in the film
area. >> Antonin Scalia: Lolita?
>> H. Louis Sirkin: Lolita, Traffic. >> Antonin Scalia: That would be a great...
leaving the book, the movie Lolita, the book is perfectly okay, right?
This only applies to the movie? >> H. Louis Sirkin: That's correct.
>> Antonin Scalia: The great work of western art.
>> H. Louis Sirkin: It's gotten critical acclaim. The movie Traffic, I think, won an Academy
Award. There's the movie Tin Drum.
>> Antonin Scalia: What else besides the movie Lolita would we be deprived of in order to
prevent little children from being exploited? >> H. Louis Sirkin: There's the movie Traffic,
there's the movie Tin Drum, there's a whole bunch of, you know, there's the Brooke Shields
movies that maybe some people don't enjoy, but again it's there, the Blue Lagoon and
the series of movies such as that. >> Antonin Scalia: In respect, this is not,
you know, the Mona Lisa or Venus de Milo or anything that has lasted more than 30 years.
>> H. Louis Sirkin: It could very well affect, I think, painters because the statute... excuse
me. >> John Paul Stevens: How about Romeo and
Juliet? It interprets one scene there that way.
>> H. Louis Sirkin: It could, if the movie... a movie of Romeo and Juliet were made.
>> Antonin Scalia: Gee, you've seen a different version of that play than I have.
[Laughter] >> H. Louis Sirkin: Well, it depends on how
they wanted to portray it. I think they would have to be prevented from
showing or simulated *** activity because if they are in fact, you know, to be considered
to be underage. And secondly, countless visual depictions
of adult sexuality will be prohibited where the adults depicted appear to some unknown
censor to be younger than 18. And third, it would open the door to banning
other forms of expression simply because the expression could be misused and/or abused
by a small segment of society. >> Stephen G. Breyer: Very well, how should
it be read? How would you write the statute so that it
did take Justice Stewart's material that flunks. >> H. Louis Sirkin: One is, I think, enforcement
of the obscenity laws would be one way. >> Stephen G. Breyer: Apparently that doesn't
work and that's why I'm puzzled. And where children, where you're depicting
children engaged in this activity, let's say that flunks the Algerian *** test or whatever
it was he used to have. >> H. Louis Sirkin: Your honor, there's--
>> Stephen G. Breyer: How is Congress to write a statute in the area of children that gets
at that problem, which is a problem? >> H. Louis Sirkin: --I believe that Title
18, section 2251 covers that problem. In the past there have been numerous prosecutions,
I think, prior to the passages of this Act. In 1995 a member of the Department of Justice
testified before the Senate committee that heard evidence about this statute and indicated
that there had been a conviction rate of over 97 percent in cases that had been brought
against people for the possession or dissemination of material containing a depiction of a minor.
So that in fact has not been a problem in the past and apparently in this all in umbrella
statute where they used any visual depiction, which in fact if you use the terminology any
visual depiction it's not just limited to virtually indistinguishable--
>> William H. Rehnquist: You have no problem then with the statute before it was amended.
>> H. Louis Sirkin: --I have no problem, this is a new statute, 2251 and 2252 did exist.
>> William H. Rehnquist: What did it do? How did it change the law?
>> H. Louis Sirkin: It used the terminology, it created a category of computer images that
would be nonreal or other pictures or images that are nonreal and that are fictional characters
into the act and it would be prohibited if disseminated or possessed.
>> William H. Rehnquist: So, well, whatever was going to be threatened in the way of free
expression and so forth under the new act was simply computer images of things that
were already prohibited if done by real people? >> H. Louis Sirkin: No it did not, it included,
it said any visual depiction, that would include that could be considered cartoons, illustrations,
drawings, paintings. >> William H. Rehnquist: If the statute is
construed to be, say, virtually indistinguishable then I think cartoons would not be covered.
>> H. Louis Sirkin: But the problem is it would still suffer from the vagueness because
what would happen is that in fact I had a computer image of a fictional character I'd
never have a defense because I could not come forward and prove that that fictional character
was over 18. So if someone believed--
>> William H. Rehnquist: That seems way out at the fringes somewhat.
>> H. Louis Sirkin: --Well but that leaves it to the discretion.
It may be that the current administration may not enforce this language but down the
road nobody knows what will happen. >> William H. Rehnquist: You could cross that
bridge when you come to it then. >> H. Louis Sirkin: Well, I believe when you
begin to talk about First Amendment rights to put it on to a case by case basis I think
you are abridging, you know, a fundamental right and I think that in addition to that
you have the problem that if I get charged you're not just being charged with a violation
of an obscenity law, you're being accused of being a child pornographer and that does
have some connotation and that has some ill effects just from the fact of being charged.
And I would have no defense. >> Sandra Day O'Connor: Well, does it cover
things beyond obscene speech? >> H. Louis Sirkin: Well--
>> Sandra Day O'Connor: In your view. >> H. Louis Sirkin: --In this it does, it
would cover, you know, the morphing situation-- >> Sandra Day O'Connor: Excuse me?
>> H. Louis Sirkin: --I'm using the term morphing where you use an identifiable and you can
merge it in on the computer to, you know, into similar--
>> Sandra Day O'Connor: Images of obscenity. >> H. Louis Sirkin: --That's correct, or of
a *** act-- >> Sandra Day O'Connor: That is the expansion,
is covering images of obscenity. >> H. Louis Sirkin: --Well, it would be images,
it would be copying images of obscenity with an identifiable individual or in *** conduct
and that is harm to a real child because that person is an identifiable child and that becomes
a permanent record. >> Sandra Day O'Connor: But does it cover
depictions of something more than obscenity? >> H. Louis Sirkin: Well, when you use the
terminology simulated *** activity it would, you know, it depends, I guess that goes community
to community. But what you have is like in the movie Trafficking
where you have a young lady under a cover with a man on top of her, you only see their
heads but, you know, the simulated means the appearance of, and that in fact does give
the appearance and, you know, in that situation it is a representation in the movie that that
person is under the age of 18-- >> Antonin Scalia: Don't you think the statute
can reasonably be read giving the definition of the activities covered not to cover two
people under a bed with no depiction of *** organs or anything else.
>> H. Louis Sirkin: --The problem is, is that the statute uses the term actual *** activity
and/or simulated, and again-- >> Antonin Scalia: It depends on what you
mean by *** activity. If it's just a depiction without any indication
of the *** organs it's certainly reasonable to say that that isn't covered.
>> H. Louis Sirkin: --But that's not what the statute says, though.
>> Anthony M. Kennedy: Well, the statute does say explicit.
Doesn't that cover what Justice Scalia-- >> H. Louis Sirkin: No it doesn't, because
it says explicit *** conduct, actual or simulated and I guess it depends on how you
read that word simulated. >> Anthony M. Kennedy: --You say explicit.
What work does the term explicit do? >> H. Louis Sirkin: It means clearly and again
clearly would mean to me that if it appears that they're under the blanket and that's
what they're doing I think it's a reasonable inference to be made and I think that it would
cover that as simulated activity. >> William H. Rehnquist: But explicit certainly
can mean something different than clearly. >> H. Louis Sirkin: It can, but it's not defined
in the statute. They could have gotten rid of the word simulated.
>> William H. Rehnquist: Then maybe the courts will define it so that it wouldn't cover the
kind of thing you're talking about. >> John Paul Stevens: It is defined in the
statute, sexually explicit conduct that was in quotes means actual or simulated ***
intercourse. >> H. Louis Sirkin: And some other things,
and it uses *** and-- >> John Paul Stevens: It includes *** intercourse,
it seems to me it's *** intercourse whether you see the entire body or only part of it.
>> H. Louis Sirkin: --I agree with Your Honor that it would be simulated if they're under
the blanket and you see the heads. >> Ruth Bader Ginsburg: I think the question
is whether you could, a court could say well, to keep this within constitutional bounds
we will read into the statute this broad requirement that there be an actual showing of ***
organs. >> H. Louis Sirkin: You know, legislatures
write statutes, I think the courts interpret them and I think to construe it you'd be basically
rewriting the statute if you did that, if you eliminated that terminology and I don't
think the government has urged that. >> John Paul Stevens: Am I not correct in
remembering that one of the amendments to this series of statutes by Congress specifically
eliminated the requirement of patently offensive and the like?
>> H. Louis Sirkin: They've done that in the child *** area a long time ago.
They did that in Ferber when they said that it, just if it merely is children involved
in *** activity it's a violation of the law and it's not subject to the three-prong
test of Miller and the patently offensive is a part of the Miller test.
>> Sandra Day O'Connor: Do you have any examples of the use of computer generated images covered
by this statute where it has serious literary or educational value or scientific value?
>> H. Louis Sirkin: Well-- >> Sandra Day O'Connor: Do we have examples
of that? >> H. Louis Sirkin: --Today I don't know that
we have examples today of that. I mean, I would think that if we convert the
videos and the films that are being made today into DVD, those are, that's a computer, digital
computer-- >> Sandra Day O'Connor: Because your concern
is with the expansion to these images of things that are already prohibited and yet I don't
think we have examples of any serious use of them in--
>> H. Louis Sirkin: --Well, if I-- >> Sandra Day O'Connor: --areas which would
be of concern. The examples that we've talked about today
and that I think you've identified seem to be of films using youthful adults.
>> H. Louis Sirkin: --Well, that would be correct but I think it's not, you know, too
in the distant future that we will be making films that will be virtual reality.
>> Stephen G. Breyer: But they're their strongest argument is... I mean, I thought their argument
is you're right, those things you're talking about are not covered.
They're not covered today because everybody knows they're not really under the age of
18, the actors. And tomorrow if we have a new system we'll
worry about it tomorrow on a case by case basis.
Maybe all they'd have to do is put on the top these are not real, I don't know what
they'd have to do, but they're so few and far between that we shouldn't strike the statute
down on its face. Now that's why I think people are asking you
for particular examples because if you have to make up an imaginary example that doesn't
really exist then maybe the correct thing to do is say the statute shouldn't be struck
down on its face and we'll proceed case by case as a reasonable literary or scientific
virtue to a particular thing. Of course the person can't be convicted.
Now that's case by case. I'm putting what I take it is their argument
here. >> H. Louis Sirkin: But the problem with that
is it creates a chilling effect because who's going to take the chance?
I mean that's it, if the government says if it's close to the line I think the petitioners
have indicated in their brief that if it's close to the line then just don't do it, you
know, don't publish it, don't make it, and that's censorship.
>> Stephen G. Breyer: What about the other argument which is look, we're trying to protect
the real children who are the subjects of the film and the reason we need this to protect
them is because there is no way for any expert or anyone else to say when they see a film
whether this is a film of a real person or whether it is a fake film made through virtual
technology. The experts just can't tell us.
>> H. Louis Sirkin: Well, I think that becomes, you know, an excuse.
>> Stephen G. Breyer: Is it true? >> H. Louis Sirkin: It is not true.
>> Stephen G. Breyer: All right. You think it is not true, they think it is
true. Is there somewhere in the record I could look
or some place I could find out as to what experts think?
>> H. Louis Sirkin: Yes, because I think you can look at the Senate hearing report where
it's indicated that in 1995 in relation to cases that were brought there was a conviction
rate of 97.6 percent. In addition to that, that since the enactment
of this law the government has not lost a case and it was raised in the Kimbrough case
and it was raised in the Fox case, they were able to get a conviction.
>> Antonin Scalia: You say the congressional finding is wrong then because the statute
begins with, among other findings, new photographic and computer imaging technologies make it
possible to produce by electronic, mechanical or other means visual depictions of what appear
to be children engaging in sexually explicit conduct that are virtually indistinguishable
to the unsuspecting viewer from unretouched photographic images.
You say that that congressional finding is wrong?
>> H. Louis Sirkin: That congressional finding, I don't think it was empirically, there was
no empirical evidence that was really shown to Congress that that is correct, that the
computer, and I believe, and I think it's clear--
>> Antonin Scalia: So you have both your opponent and the Congress who think you're wrong on
this point. >> H. Louis Sirkin: --Yes.
>> Stephen G. Breyer: Okay. But your point still is, I take it is, even
if in fact the Congress is correct on that, there's no evidence that cases are being lost
because of this virtual indistinguishability problem, cases involving real children.
>> H. Louis Sirkin: That's correct. And I believe if you want to make it easier
for the government to make convictions I think that we could get rid of the Bill of Rights
and it would be much easier for the government then to get convictions.
>> Antonin Scalia: Mr. Clement gave an example of another case in which the government did
obtain a conviction but only because of the new statute in which the government witness
was unable to say. >> H. Louis Sirkin: That was that government
witness. That doesn't mean that there are not witnesses
out there and experts that can make that distinction that if, you know, there clearly would be,
pardon? >> Antonin Scalia: This was just a bad government
witness, you say? >> H. Louis Sirkin: It could have been.
I didn't hear the testimony in that case but they did in fact get a conviction in that
case. But I think it's equally as dangerous to create
a barrier to First Amendment. >> Antonin Scalia: Wouldn't have gotten a
conviction if the law had been what you want it to be, isn't that right?
>> H. Louis Sirkin: We don't know they wouldn't have gotten a conviction with that... the
testimony in that case was that the expert indicated that he was not sure and could not
positively say whether it was real or not real.
>> Antonin Scalia: And on that basis can you find beyond a reasonable doubt that it was
a depiction of an actual minor. >> H. Louis Sirkin: It creates an inference
and a jury can draw inferences from the evidence. >> Ruth Bader Ginsburg: Suppose the law put
the burden on you, on the defendant to show that this depiction does not use an actual
child. The defendant, because of this proof problem,
is not brought out, the confusion is it a real child, is it a simulation.
Suppose it were made the defendant's burden to show that no actual child was used in this
picture, would you have a constitutional objection to that?
>> H. Louis Sirkin: Yes, I would. And the reason being is that at least in the
possession area that is not an affirmative defense because all it has to be in the affirmative
defense, there is no, the element of age, of being able to come forward and show that
it's not a real child or that it's underage is not available--
>> David H. Souter: Okay, let's assume that that too was fixed.
Those two features, Justice Ginsburg's and the inclusion of the possession is subject
to the defense, would the statute then be constitutional?
>> H. Louis Sirkin: --I, the possessor though, you'd be switching the burden of proof then
I believe and I think that would be an unconstitutional shifting of the burden.
>> David H. Souter: Well, you'd be making, you be... are you saying that the affirmative
defense therefore is, in effect, has got to be constitutionally relevant across the board?
>> H. Louis Sirkin: I believe that it is. I think the affirmative defense that's in
this statute is unconstitutional. >> David H. Souter: So there's no way to tailor
it by affirmative defense in effect is your argument.
>> H. Louis Sirkin: That's correct. >> Antonin Scalia: And how would that affirmative
defense prevent some of the evils that the government is trying to prevent, for example
the seduction of minors to *** conduct by showing things that appear to be minors?
How would this, affirm... the existence of this affirmative defense still enable the
government to do that? >> H. Louis Sirkin: There are currently, there
are currently lots of laws that deal with anyone who attempts to entice a child and
I believe that those laws could be enforced and I believe that the penalties could be
increased and that could be a deterrent effect on that.
We're talking about the use of this material potentially by a very small segment of the
population and I think it affects-- >> William H. Rehnquist: Well, you could say
the same thing about a *** statute, you know, you don't expect a whole lot of people
to go out and commit murders but that doesn't mean Congress can't legislate against it.
>> H. Louis Sirkin: --But here you can't legislate that if it's not, if it's a virtual ***
and there has been no ***, you don't go out and arrest people.
Here if you use a virtual, a fictional character you can go out and arrest people.
>> Antonin Scalia: Well, if you want to talk about a very small portion of the population
I would think there's a very small portion of the population that wants either to produce
or to watch adolescents and children engaging in *** conduct of the sort described in
this statute. You're dealing with a small portion of the
population to begin with. >> H. Louis Sirkin: But if you use the principle
that's involved here then I do believe you begin the slippery slope.
You go from the idea you can use this and expand it, you can use it, you know, that
if you have depictions such as, you know, the movie the Godfather, the movie Pulp Fiction
which are cult, you know, movies that are attractive to children, someone could come
out and say, hey, look, join my gang, look how much fun it can be if we go out and become
extremely violent. >> Stephen G. Breyer: What's worrying me about
what you're saying now is that if their factual hypothesis is true, which I tend to doubt,
but I'm not an expert, that there is no technical way to distinguish between a photograph of
a real child and an imaginary child, if it were true, there is no expert who could tell
you the difference and you tell me I can not have an affirmative defense, then the government
cannot prosecute real child ***. >> H. Louis Sirkin: I think they can--
>> Stephen G. Breyer: Because there would be no way to prove beyond a reasonable doubt
that it was a real child. So if you deny the government the possibility
of the affirmative defense weapon you are denying them the possibility of prosecuting
real child ***. >> H. Louis Sirkin: --That's not correct because
they've been able to get convictions and they've gone forward and they've gotten convictions.
>> Stephen G. Breyer: Well, presumably people think that it is possible to distinguish between
the real child and the virtual fake. >> H. Louis Sirkin: But I don't believe, you
know, at least currently they've not lost any of the cases and there's only been the
one where someone has raised the issue and that expert had indicated that they weren't
sure. >> Stephen G. Breyer: I think what you're
doing is in effect varying the question, you're saying, look, in the real world it doesn't
happen, they can tell. But if you assume the hypothesis that Justice
Breyer started with, the factual hypothesis that if these are well enough made you can't
tell the difference, then doesn't it follow that if you rule out the affirmative defense
route for the government, the government simply won't be able to prove the case in the instances
in which real children are being used. >> H. Louis Sirkin: I'm going to go back and
I'm not begging the question, again, if I have, if there is virtual *** that looks
so real on the screen, I don't go out and charge anyone with ***.
>> Antonin Scalia: Well, we can distinguish attraction to other forms of socially damaging
behavior from that particular category of social... socially damaging behavior that
has for hundreds of years been treated as obscenity.
I don't think there's any risk of the Court suddenly declaring that excessive violence
constituted obscenity. We know what obscenity is.
There have been laws against this particularly infectious kind of solicitation to conduct
for centuries. I don't know why you think we're going to
suddenly flop over into prohibiting the Godfather because that also portrays socially undesirable
conduct. >> H. Louis Sirkin: If you take the logic
that's behind here about people, you're getting at the person who is misusing the material
and there certainly I think is, you can't even do medical--
>> Antonin Scalia: *** material in a category called obscenity which has traditionally for
hundreds of years been regulable by government. >> H. Louis Sirkin: --But the obscenity here
we're making just because it's a fictional character visually participating in an activity
that I can write about, we're now saying you cannot express, that we're saying, we're giving
it a social status, and I think when we start to do that then we start to eliminate, we
can start eliminating other areas equally. I further believe that, you know, as I've
indicated, that the affirmative defense seems to be inadequate.
It certainly does not cover the individual possession and that individual is in a position
where if he has three images, if he gets a DVD movie and he takes, and it has more than
three images in it, he's now, you know, can be prosecuted for possession of child ***.
And, again, with the definition, when you put it together with the definition of simulated.
I think that it is not narrowly tailored, it is overly broad because I think, again,
it covers literary material, it carries certainly for medical research, one cannot, there is
no bona fide exception here for medical, scientific or educational or artistic merit, it's a blanket
across the board prohibition. I believe the Court clearly indicated in Ferber--
>> Ruth Bader Ginsburg: But what if we accept the government's limiting construction, the
government is urging that we use this, take the congressional finding, read it into the
text of the statute and then it would cut out all the good things.
>> H. Louis Sirkin: --I believe that the Court has indicated in the past in Turner Broadcasting
and in the landmark communications case that it's not for the Court to be rewriting statutes
as they come out of Congress and particularly in the area when it deals in areas of First
Amendment. And I think that the Act, you know, and what
we're proposing here-- >> Ruth Bader Ginsburg: Supposing that...
suppose we could consult Congress, they would say yeah, preserve as much of this as is constitutional.
We wanted to do a whole lot but if the constitution only allows us to do a little we'd rather
have the Court say that than to throw out our entire product.
>> H. Louis Sirkin: --All we're asking is, is the Court sever out two phrases and that
is that is, is it appears to be and that it, you know, and where it conveys the impression
that a minor is engaged in *** activity. >> William H. Rehnquist: Well, in X-Citement
Video we did something not too different from this, reading in a requirement that wasn't
express in the statute. >> H. Louis Sirkin: You did read in the elements
of knowingly and you have to do that. Basically the government is doing the same
thing in this particular statute because the knowingly appears in this statute exactly
as it appeared in the statute that was interpreted by the Court in X-Citement Video.
It says knowingly in relation to mailing or to transporting, it doesn't say knowing as
to the knowledge of the particular minority. >> William H. Rehnquist: But that's an example
of a case where there was a First Amendment challenge where we have read something into
a statute that we might not necessarily have done.
>> H. Louis Sirkin: The Court has the power to do that.
>> William H. Rehnquist: And there's precedent for our doing it.
>> H. Louis Sirkin: Yes, in X-Citement Video the Court did do that.
But we're urging here that the fact is that the Ferber and Osborne were based upon the
harm to real children and we're now limiting something because of the message.
We are socially making a determination here that this is speech we don't like.
>> Anthony M. Kennedy: Are you saying that if real children are not used in the depiction
of simulated *** activity that it cannot be barred unless it meets the Miller standard?
>> H. Louis Sirkin: Yes. It would mean--
>> Anthony M. Kennedy: Eight year olds, ten year olds, twelve year olds.
>> H. Louis Sirkin: --They're fictional characters, because I think they do have a valid use in
medical research. >> Stephen G. Breyer: Suppose you said...
suppose you said... suppose I... I don't know how I'd do it, suppose I could draft a statute
which had a medical research exemption. >> H. Louis Sirkin: It would make it narrower.
>> Anthony M. Kennedy: Would it be constitutional? >> H. Louis Sirkin: Again, I'd have to see
the whole statute and, again, I think that it would depend on how it works and whether
it still had the problems with the affirmative defense.
>> Stephen G. Breyer: Suppose you took... I just want to follow up on what Justice Kennedy
said. Suppose you took Miller and said where you
have clearly minors we as a matter of law assume that it's patently offensive.
>> H. Louis Sirkin: That could be done. >> Stephen G. Breyer: That could be done,
you'd still have the other two parts. >> H. Louis Sirkin: Yes, and I think that
most communities would feel, I think that all communities would feel that that is patently
offensive. >> Stephen G. Breyer: I wonder if Miller would
work more satisfactorily if you did that in the case of people who clearly appear to be
minors. >> H. Louis Sirkin: I believe that it would.
>> Stephen G. Breyer: You think it would. >> H. Louis Sirkin: Thank you.
>> William H. Rehnquist: Thank you Mr. Sirkin, Mr. Clement you have one minute remaining.
>> Paul D. Clement: Thank you Mr. Chief Justice. Counsel for Respondent notes the 97 percent
conviction figure. Well, that reflects a couple of things.
One, it reflects that the 1996 Act has allowed us to prosecute cases even where there is
a reasonable doubt about whether it is a virtual image or not.
The other thing that the 97 percent conviction rate reflects is that we are not out there
prosecuting people who pick up Traffic at the Blockbuster.
It's no accident that the one court that considered this case in a facial challenge struck the
statute down, but the four courts of appeals that considered it in an as applied challenge
upheld the statute. Those cases give you an illustration of what
the statute is really applied to. The Mento case involved over 100 images of
prepubescent children. The Acheson case in the 11th Circuit--
>> Anthony M. Kennedy: Is there any precedent that we judge a free speech statute based
on the kind of prosecutions the government has been bringing?
>> Paul D. Clement: --There is precedent and the best one I can think of is Ferber for
waiting until as applied challenges to deal with the fringe cases, the tiny fraction cases.
And I think, as in Ferber, if you wait for those cases to be brought you'll find that
they are not brought in these cases. Another point I think worth emphasizing is
that I don't think given that this statute only covers explicit *** conduct that there'll
be much medical research involved. >> William H. Rehnquist: Thank you, Mr. Clement.
The case is submitted.