OCTOBER TERM, 1994
Syllabus
UNITED STATES
v. X-CITEMENT VIDEO, INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 93-723. Argued October 5, 1994-Decided November 29,1994
Respondents were convicted under the Protection of Children
Against Sexual Exploitation Act of 1977, which prohibits
"knowingly" transporting, shipping, receiving, distributing, or
reproducing a visual depiction, 18 U. S. C. §§ 2252(a)(I) and (2),
if such depiction "involves the use of a minor engaging in sexually
explicit conduct," §§ 2252(a)(I)(A) and (2)(A). In reversing, the
Ninth Circuit held,
inter alia, that § 2252 was facially
unconstitutional under the First Amendment because it did not
require a showing that the defendant knew that one of the
performers was a minor.
Held: Because the term "knowingly" in §§ 2252(1) and (2)
modifies the phrase "the use of a minor" in subsections (1)(A) and
(2)(A), the Act is properly read to include a scienter requirement
for age of minority. This Court rejects the most natural
grammatical reading, adopted by the Ninth Circuit, under which
"knowingly" modifies only the relevant verbs in subsections (1) and
(2), and does not extend to the elements of the minority of the
performers, or the sexually explicit nature of the material,
because they are set forth in independent clauses separated by
interruptive punctuation. Some applications of that reading would
sweep within the statute's ambit actors who had no idea that they
were even dealing with sexually explicit material, an anomalous
result that the Court will not assume Congress to have intended.
Moreover,
Morissette v.
United States, 342 U. S. 246,271,
reinforced by
Staples v.
United States, 511 U. S. 600, 619,
instructs that the standard presumption in favor of a scienter
requirement should apply to each of the statutory elements that
criminalize otherwise innocent conduct, and the minority status of
the performers is the crucial element separating legal innocence
from wrongful conduct under § 2252. The legislative history,
although unclear as to whether Congress intended "knowingly" to
extend to performer age, persuasively indicates that the word
applies to the sexually explicit conduct depicted, and thereby
demonstrates that "knowingly" is emancipated from merely modifying
the verbs in subsections (1) and (2). As a matter of grammar, it is
difficult to conclude that the word modifies one of the elements in
subsections (1)(A) and (2)(A), but not the other. This
interpretation is supported by the canon that a
65
statute is to be construed where fairly possible so as to avoid
substantial constitutional questions. pp. 67-79.
982 F.2d
1285, reversed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
STEVENS, O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ.,
joined. STEVENS, J., filed a concurring opinion,
post, p.
79. SCALIA, J., filed a dissenting opinion, in which THOMAS, J.,
joined,
post, p. 80.
Solicitor General Days argued the cause for the United States.
With him on the briefs were Assistant Attorney General Harris,
Deputy Solicitor General Kneedler, Malcolm L. Stewart, and Joel M.
Gershowitz.
Stanley Fleishman argued the cause for respondents.
With him on the briefs were
Barry A. Fisher and
David
Grosz. *
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
The Protection of Children Against Sexual Exploitation Act of
1977, as amended, prohibits the interstate transpor-
*Briefs of
amici curiae urging reversal were filed for
the State of Ohio et al. by
Lee Fisher, Attorney General of
Ohio,
Richard A. Cordray, State Solicitor, and
Simon B.
Karas, and by the Attorneys General for their respective
jurisdictions as follows:
Jimmy Evans of Alabama,
Bruce
M. Botelho of Alaska,
Robert Marks of Hawaii,
Roland
W Burris of Illinois,
Richard P. Ieyoub of Louisiana,
Frank J. Kelley of Michigan,
Joseph P.
Mazurek of Montana,
Frankie Sue Del Papa of Nevada,
Michael F.
Easley of North Carolina,
Ernest D.
Preate, Jr., of Pennsylvania,
Pedro R. Pierluisi of
Puerto Rico,
T. Travis Medlock of South Carolina,
Mark
Barnett of South Dakota,
Rosalle Simmonds Ballentine of
the Virgin Islands,
James S.
Gilmore III of Virginia,
and
James E. Doyle of Wisconsin; for the National Family
Legal Foundation by
Len L. Munsil; and for the National Law
Center for Children and Families et al. by
H. Robert Showers
and
Cathleen A. Cleaver.
Briefs of
amici curiae were filed for the American
Booksellers Foundation for Free Expression et al. by
Michael A.
Bamberger and
Margaret S.
Determan; for the Law
and Linguistics Consortium by
Clark D. Cunningham; for
Morality in Media, Inc., by
Paul J. McGeady;
and for PHE, Inc., by
Bruce J. Ennis, Jr., and
John B. Morris, Jr.
66
tation, shipping, receipt, distribution, or reproduction of
visual depictions of minors engaged in sexually explicit conduct.
18 U. S. C. § 2252. The Court of Appeals for the Ninth Circuit
reversed the conviction of respondents for violation of this Act.
It held that the Act did not require that the defendant know that
one of the performers was a minor, and that it was therefore
facially unconstitutional. We conclude that the Act is properly
read to include such a requirement.
Rubin Gottesman owned and operated X-Citement Video, Inc.
Undercover police posed as pornography retailers and targeted
X-Citement Video for investigation. During the course of the sting
operation, the media exposed Traci Lords for her roles in
pornographic films while under the age of 18. Police Officer Steven
Takeshita expressed an interest in obtaining Traci Lords tapes.
Gottesman complied, selling Takeshita 49 videotapes featuring Lords
before her 18th birthday. Two months later, Gottesman shipped eight
tapes of the underage Traci Lords to Takeshita in Hawaii.
These two transactions formed the basis for a federal indictment
under the child pornography statute. The indictment charged
respondents with one count each of violating 18 U. S. C. §§
2252(a)(1) and (a)(2), along with one count of conspiracy to do the
same under 18 U. S. C. § 371.1 Evidence at trial suggested that
Gottesman had full awareness of Lords' underage performances.
United States v.
Gottesman, No. CR 88-295KN, Findings
of Fact' 7 (CD Cal., Sept. 20, 1989), App. to Pet. for Cert. 39a
("Defendants knew that Traci Lords was underage when she made the
films defendant's
[sic] transported or shipped in interstate
commerce"). The District Court convicted respondents of all three
counts. On appeal, Gottesman argued,
inter alia, that the
Act was facially unconstitutional because it lacked a necessary
scien-
1 The indictment also charged six counts of violating federal
obscenity statutes and two racketeering counts involving the same.
Respondents were acquitted of these charges.
67
ter requirement and was unconstitutional as applied because the
tapes at issue were not child pornography. The Ninth Circuit
remanded to the District Court for reconsideration in light of
United States v.
Thomas, 893 F.2d
1066 (CA9), cert. denied, 498 U. S. 826 (1990). In that case,
the Ninth Circuit had held § 2252 did not contain a scienter
requirement, but had not reached the constitutional questions. On
remand, the District Court refused to set aside the judgment of
conviction.
On appeal for the second time, Gottesman reiterated his
constitutional arguments. This time, the court reached the merits
of his claims and, by a divided vote, found § 2252 facially
unconstitutional. The court first held that 18 U. S. C. § 2256 met
constitutional standards in setting the age of majority at age 18,
substituting lascivious for lewd, and prohibiting actual or
simulated bestiality and sadistic or masochistic abuse.
982 F.2d
1285, 1288-1289 (CA9 1992). It then discussed § 2252, noting it
was bound by its conclusion in
Thomas to construe the Act as
lacking a scienter requirement for the age of minority. The court
concluded that case law from this Court required that the defendant
must have knowledge at least of the nature and character of the
materials. 982 F. 2d, at 1290, citing
Smith v.
California, 361 U. S. 147 (1959);
New York v.
Ferber, 458 U.
S. 747 (1982); and
Hamling v.
United States,
418 U. S. 87
(1974). The court extended these cases to hold that the First
Amendment requires that the defendant possess knowledge of the
particular fact that one performer had not reached the age of
majority at the time the visual depiction was produced. 982 F. 2d,
at 1291. Because the court found the statute did not require such a
showing, it reversed respondents' convictions. We granted
certiorari, 510 U. S. 1163 (1994), and now reverse.
Title 18 U. S. C. § 2252 (1988 ed. and Supp. V) provides, in
relevant part:
68
"(a) Any person who-
"(1) knowingly transports or ships in interstate or foreign
commerce by any means including by computer or mails, any visual
depiction, if-
"(A) the producing of such visual depiction involves the use of
a minor engaging in sexually explicit conduct; and
"(B) such visual depiction is of such conduct;
"(2) knowingly receives, or distributes, any visual depiction
that has been mailed, or has been shipped or transported in
interstate or foreign commerce, or which contains materials which
have been mailed or so shipped or transported, by any means
including by computer, or knowingly reproduces any visual depiction
for distribution in interstate or foreign commerce or through the
mails, if-
"(A) the producing of such visual depiction involves the use of
a minor engaging in sexually explicit conduct; and
"(B) such visual depiction is of such conduct;
"shall be punished as provided in subsection (b) of this
section."
The critical determination which we must make is whether the
term "knowingly" in subsections (1) and (2) modifies the phrase
"the use of a minor" in subsections (l)(A) and (2)(A). The most
natural grammatical reading, adopted by the Ninth Circuit, suggests
that the term "knowingly" modifies only the surrounding verbs:
transports, ships, receives, distributes, or reproduces. Under this
construction, the word "knowingly" would not modify the elements of
the minority of the performers, or the sexually explicit nature of
the material, because they are set forth in independent clauses
separated by interruptive punctuation. But we do not think this is
the end of the matter, both because of anomalies which
69
result from this construction, and because of the respective
presumptions that some form of scienter is to be implied in a
criminal statute even if not expressed, and that a statute is to be
construed where fairly possible so as to avoid substantial
constitutional questions.
If the term "knowingly" applies only to the relevant verbs in §
2252-transporting, shipping, receiving, distributing, and
reproducing-we would have to conclude that Congress wished to
distinguish between someone who knowingly transported a particular
package of film whose contents were unknown to him, and someone who
unknowingly transported that package. It would seem odd, to say the
least, that Congress distinguished between someone who
inadvertently dropped an item into the mail without realizing it,
and someone who consciously placed the same item in the mail, but
was nonetheless unconcerned about whether the person had any
knowledge of the prohibited contents of the package.
Some applications of respondents' position would produce results
that were not merely odd, but positively absurd. If we were to
conclude that "knowingly" only modifies the relevant verbs in §
2252, we would sweep within the ambit of the statute actors who had
no idea that they were even dealing with sexually explicit
material. For instance, a retail druggist who returns an
uninspected roll of developed film to a customer "knowingly
distributes" a visual depiction and would be criminally liable if
it were later discovered that the visual depiction contained images
of children engaged in sexually explicit conduct. Or, a new
resident of an apartment might receive mail for the prior resident
and store the mail unopened. If the prior tenant had requested
delivery of materials covered by § 2252, his residential successor
could be prosecuted for "knowing receipt" of such materials.
Similarly, a Federal Express courier who delivers a box in which
the shipper has declared the contents to be "film" "knowingly
transports" such film. We do not assume that Congress, in passing
laws, intended such results.
Public Citi-
70
zen v.
Department of Justice, 491 U. S. 440, 453-455
(1989);
United States v.
Turkette, 452 U. S. 576, 580
(1981).
Our reluctance to simply follow the most grammatical reading of
the statute is heightened by our cases interpreting criminal
statutes to include broadly applicable scienter requirements, even
where the statute by its terms does not contain them. The landmark
opinion in
Morissette v.
United States, 342 U. S. 246 (1952),
discussed the commonlaw history of
mens rea as applied to
the elements of the federal embezzlement statute. That statute
read: "Whoever embezzles, steals, purloins, or knowingly converts
to his use or the use of another, or without authority, sells,
conveys or disposes of any record, voucher, money, or thing of
value of the United States ... [s]hall be fined." 18 U. S. C. §
641, cited in
Morissette, 342 U. S., at 248, n. 2. Perhaps
even more obviously than in the statute presently before us, the
word "knowingly" in its isolated position suggested that it only
attached to the verb "converts," and required only that the
defendant intentionally assume dominion over the property. But the
Court used the background presumption of evil intent to conclude
that the term "knowingly" also required that the defendant have
knowledge of the facts that made the taking a conversion-i.
e., that the property belonged to the United States.
Id., at 271. See also
United States v.
United
States Gypsum Co., 438 U. S. 422, 438 (1978)
("[F]ar more than the simple omission of the appropriate phrase
from the statutory definition is necessary to justify dispensing
with an intent requirement").
Liparota v.
United States, 471 U. S. 419 (1985),
posed a challenge to a federal statute prohibiting certain actions
with respect to food stamps. The statute's use of "knowingly" could
be read only to modify "uses, transfers, acquires, alters, or
possesses" or it could be read also to modify "in any manner not
authorized by [the statute]." Noting that neither interpretation
posed constitutional problems,
id., at 424, n. 6, the Court
held the scienter requirement applied to
71
both elements by invoking the background principle set forth in
Morissette. In addition, the Court was concerned with the
broader reading which would "criminalize a broad range of
apparently innocent conduct." 471 U. S., at 426. Imposing criminal
liability on an unwitting food stamp recipient who purchased
groceries at a store that inflated its prices to such purchasers
struck the Court as beyond the intended reach of the statute.
The same analysis drove the recent conclusion in
Staples
v.
United States, 511 U. S. 600 (1994),
that to be criminally liable a defendant must know that his weapon
possessed automatic firing capability so as to make it a machinegun
as defined by the National Firearms Act. Congress had not expressly
imposed any
mens rea requirement in the provision
criminalizing the possession of a firearm in the absence of proper
registration. 26 U. S. C. § 5861(d). The Court first rejected the
argument that the statute described a public welfare offense,
traditionally excepted from the background principle favoring
scienter.
Morissette, supra, at 255. The Court then
expressed concern with a statutory reading that would criminalize
behavior that a defendant believed fell within "a long tradition of
widespread lawful gun ownership by private individuals."
Staples, 511 U. S., at 610. The Court also emphasized the
harsh penalties attaching to violations of the statute as a
"significant consideration in determining whether the statute
should be construed as dispensing with
mens rea." Id., at
616.
Applying these principles, we think the Ninth Circuit's plain
language reading of § 2252 is not so plain. First, § 2252 is not a
public welfare offense. Persons do not harbor settled expectations
that the contents of magazines and film are generally subject to
stringent public regulation. In fact, First Amendment constraints
presuppose the opposite view. Rather, the statute is more akin to
the common-law offenses against the "state, the person, property,
or public morals,"
Morissette, supra, at 255, that presume a
scienter require-
72
ment in the absence of express contrary intent.2 Second,
Staples' concern with harsh penalties looms equally large
respecting § 2252: Violations are punishable by up to 10 years in
prison as well as substantial fines and forfeiture. 18 U. S. C. §§
2252(b), 2253, 2254. See also
Morissette, supra, at 260.
Morissette, reinforced by
Staples, instructs that
the presumption in favor of a scienter requirement should apply to
each of the statutory elements that criminalize otherwise innocent
conduct.
Staples held that the features of a gun as
technically described by the firearm registration Act was such an
element. Its holding rested upon "the nature of the particular
device or substance Congress has subjected to regulation and the
expectations that individuals may legitimately have in dealing with
the regulated items."
Staples, supra, at 619. Age of
minority in § 2252 indisputably possesses the same status as an
elemental fact because nonobscene, sexually explicit materials
involving persons over the age of 17 are protected by the First
Amendment.
Alexander v.
United States, 509 U. S. 544, 549-550
(1993);
Sable Communications of Cal., Inc. v.
FCC,
492 U. S. 115,
126
(1989); FW/PBS, Inc. v.
Dallas, 493 U. S. 215, 224
(1990);
Smith v.
California, 361 U. S., at 152.3 In
the light of these
2
Morissette's treatment of the common-law presumption of
mens rea recognized that the presumption expressly excepted
"sex offenses, such as rape, in which the victim's actual age was
determinative despite defendant's reasonable belief that the girl
had reached age of consent." 342 U. S., at 251, n. 8. But as in the
criminalization of pornography production at 18 U. S. C. § 2251,
see
infra, at 76, n. 5, the perpetrator confronts the
underage victim personally and may reasonably be required to
ascertain that victim's age. The opportunity for reasonable mistake
as to age increases significantly once the victim is reduced to a
visual depiction, unavailable for questioning by the distributor or
receiver. Thus we do not think the common-law treatment of sex
offenses militates against our construction of the present
statute.
3 In this regard, age of minority is not a "jurisdictional fact"
that enhances an offense otherwise committed with an evil intent.
See,
e. g., United States v.
Feola,
420 U. S. 671
(1975). There, the Court did not
73
decisions, one would reasonably expect to be free from
regulation when trafficking in sexually explicit, though not
obscene, materials involving adults. Therefore, the age of the
performers is the crucial element separating legal innocence from
wrongful conduct.
The legislative history of the statute evolved over a period of
years, and perhaps for that reason speaks somewhat indistinctly to
the question whether "knowingly" in the statute modifies the
elements of subsections (l)(A) and (2)(A)-that the visual depiction
involves the use of a minor engaging in sexually explicit
conduct-or merely the verbs "transport or ship" in subsection (1)
and "receive or distribute ... [or] reproduce" in subsection (2).
In 1959, we held in
Smith v.
California, supra, that
a California statute that dispensed with any
mens rea
requirement as to the contents of an obscene book would violate the
First Amendment.
Id., at 154. When Congress began dealing
with child pornography in 1977, the content of the legislative
debates suggest that it was aware of this decision. See,
e.
g., 123 Congo Rec. 30935 (1977) ("It is intended that they
have knowledge of the type of material ... proscribed by this bill.
The legislative history should be clear on that so as to remove any
chance it will lead into constitutional problems"). Even if that
were not the case, we do not impute to Congress an intent to pass
legislation that is inconsistent with the Constitution as construed
by this Court.
Yates v.
United States, 354 U. S. 298, 319 (1957)
("In [construing the statute] we should not assume that Congress
chose to disregard a constitutional danger zone so clearly
marked"). When first passed, § 2252 pun-
require knowledge of "jurisdictional facts" -that the target of
an assault was a federal officer. Criminal intent serves to
separate those who understand the wrongful nature of their act from
those who do not, but does not require knowledge of the precise
consequences that may flow from that act once aware that the act is
wrongful.
Id., at 685. Cf.
Hamling v.
United
States, 418 U. S.
87, 120 (1974) (knowledge that the materials at issue are
legally obscene not required).
74
ished one who "knowingly transports or ships in interstate or
foreign commerce or mails, for the purpose of sale or distribution
for sale, any
obscene visual or print medium" if it involved
the use of a minor engaged in sexually explicit conduct. Pub. L.
95-225, 92 Stat. 7 (emphasis added). Assuming awareness of
Smith, at a minimum, "knowingly" was intended to modify
"obscene" in the 1978 version.
In 1984, Congress amended the statute to its current form,
broadening its application to those sexually explicit materials
that, while not obscene as defined by
Miller v.
California, 413
U. S. 15 (1973),4 could be restricted without violating the
First Amendment as explained by
New York v.
Ferber,
458 U. S. 747
(1982). When Congress eliminated the adjective "obscene," all of
the elements defining the character and content of the materials at
issue were relegated to subsections (l)(a) and (2)(a). In this
effort to expand the child pornography statute to its full
constitutional limits, Congress nowhere expressed an intent to
eliminate the
mens rea requirement that had previously
attached to the character and content of the material through the
word obscene.
The Committee Reports and legislative debate speak more opaquely
as to the desire of Congress for a scienter requirement with
respect to the age of minority. An early form of the proposed
legislation, S. 2011, was rejected principally because it failed to
distinguish between obscene and nonobscene materials. S. Rep. No.
95-438, p. 12 (1977). In evaluating the proposal, the Justice
Department offered its thoughts:
"[T]he word 'knowingly' in the second line of section 2251 is
unnecessary and should be stricken .... Unless 'knowingly' is
deleted here, the bill might be subject to an interpretation
requiring the Government to prove
4 The
Miller test for obscenity asks whether the work,
taken as a whole, "appeals to the prurient interest," "depicts or
describes [sexual conduct] in a patently offensive way," and "lacks
serious literary, artistic, political, or scientific value."
Miller, 413 U. S., at 24.
75
the defendant's knowledge of everything that follows
'knowingly', including the age of the child. We assume that it is
not the intention of the drafters to require the Government to
prove that the defendant knew the child was under age sixteen but
merely to prove that the child was, in fact, less than age sixteen
....
"On the other hand, the use of the word 'knowingly' in
subsection 2252(a)(1) is appropriate to make it clear that the bill
does not apply to common carriers or other innocent transporters
who have no knowledge of the nature or character of the material
they are transporting. To clarify the situation, the legislative
history might reflect that the defendant's knowledge of the age of
the child is not an element of the offense but that the bill is not
intended to apply to innocent transportation with no knowledge of
the nature or character of the material involved." Id., at
28-29.
Respondents point to this language as an unambiguous revelation
that Congress omitted a scienter requirement. But the bill
eventually reported by the Senate Judiciary Committee adopted some,
but not all, of the Department's suggestions; most notably, it
restricted the prohibition in § 2251 to obscene materials.
Id., at 2. The Committee did not make any clarification with
respect to scienter as to the age of minority. In fact, the version
reported by the Committee eliminated § 2252 altogether.
Ibid. At that juncture, Senator Roth introduced an amendment
which would be another precursor of § 2252. In one paragraph, the
amendment forbade any person to "knowingly transport [or] ship ...
[any] visual medium depicting a minor engaged in sexually explicit
conduct." 123 Congo Rec. 33047 (1977). In an exchange during
debate, Senator Percy inquired:
"Would this not mean that the distributor or seller must have
either, first, actual knowledge that the materials do contain child
pornographic depictions or, second, cir-
76
cumstances must be such that he should have had such actual
knowledge, and that mere inadvertence or negligence would not alone
be enough to render his actions unlawful?" Id., at
33050.
Senator Roth replied:
"That is absolutely correct. This amendment, limited as it is by
the phrase 'knowingly,' insures that only those sellers and
distributors who are consciously and deliberately engaged in the
marketing of child pornography ... are subject to prosecution ....
" Ibid.
The parallel House bill did not contain a comparable provision
to § 2252 of the Senate bill, and limited § 2251 prosecutions to
obscene materials. The Conference Committee adopted the substance
of the Roth amendment in large part, but followed the House version
by restricting the proscribed depictions to obscene ones. The new
bill did restructure the § 2252 provision somewhat, setting off the
age of minority requirement in a separate subclause. S. Conf. Rep.
No. 95601, p. 2 (1977). Most importantly, the new bill retained the
adverb "knowingly" in § 2252 while simultaneously deleting the word
"knowingly" from § 2251(a). The Conference Committee explained the
deletion in § 2251(a) as reflecting an "intent that it is not a
necessary element of a prosecution that the defendant knew the
actual age of the child."
Id., at 5.5 Respondents point to
the appearance of "knowingly" in
5 The difference in congressional intent with respect to § 2251
versus § 2252 reflects the reality that producers are more
conveniently able to ascertain the age of performers. It thus makes
sense to impose the risk of error on producers.
United
States v.
United States District Court for Central District
of California, 858 F.2d
534, 543, n. 6
(CA9 1988). Although producers may be
convicted under § 2251(a) without proof they had knowledge of age,
Congress has independently required both primary and secondary
producers to record the ages of performers with independent
penalties for failure to comply. 18 U. S. C. §§ 2257(a) and (i)
(1988 ed. and Supp. V);
American Library Assn. v.
Reno, 33 F.3d
78 (CADC 1994).
77
§ 2251(c) and argue that § 2252 ought to be read like § 2251.
But this argument depends on the conclusion that § 2252(c) does not
include a knowing requirement, a premise that respondents fail to
support. Respondents offer in support of their premise only the
legislative history discussing an intent to exclude a scienter
requirement from
§2251(a). Because §§ 2251(a) and 2251(c)
were passed at different times and contain different wording, the
intent to exclude scienter from § 2251(a) does not imply an intent
to exclude scienter from § 2251(c).6
The legislative history can be summarized by saying that it
persuasively indicates that Congress intended that the term
"knowingly" apply to the requirement that the depiction be of
sexually explicit conduct; it is a good deal less clear from the
Committee Reports and floor debates that Congress intended that the
requirement extend also to the age of the performers. But, turning
once again to the statute itself, if the term "knowingly" applies
to the sexually explicit conduct depicted, it is emancipated from
merely modifying the verbs in subsections (1) and (2). And as a
matter of grammar it is
6 Congress amended § 2251 to insert subsection (c) in 1986. Pub.
L. 99628, 100 Stat. 3510. That provision created new offenses
relating to the advertising of the availability of child
pornography or soliciting children to participate in such
depictions. The legislative history of § 2251(c) does address the
scienter requirement: "The government must prove that the defendant
knew the character of the visual depictions as depicting a minor
engaging in sexually explicit conduct,
but need not prove that
the defendant actually knew the person depicted was in fact
under 18
years of age or that the depictions violated
Federal law." H. R. Rep. No. 99-910, p. 6 (1986). It may be argued
that since the House Committee Report rejects any requirement of
scienter as to the age of minority for § 2251(c), the House
Committee thought that there was no such requirement in § 2252. But
the views of one Congress as to the meaning of an Act passed by an
earlier Congress are not ordinarily of great weight,
United
States v.
Clark, 445 U. S. 23, 33, n. 9
(1980), citing
United States v.
Southwestern Cable
Co., 392 U. S.
157, 170 (1968), and the views of the committee of one House of
another Congress are of even less weight,
Pierce v.
Underwood, 487 U. S. 552, 566 (1988).
78
difficult to conclude that the word "knowingly" modifies one of
the elements in subsections (l)(A) and (2)(A), but not the
other.
A final canon of statutory construction supports the reading
that the term "knowingly" applies to both elements. Cases such as
Ferber, 458 U. S., at 765 ("As with obscenity laws, criminal
responsibility may not be imposed without some element of scienter
on the part of the defendant");
Smith v.
California,
361 U. S. 147
(1959);
Hamling v.
United States, 418 U. S. 87 (1974); and
Osborne v.
Ohio, 495 U. S. 103, 115
(1990), suggest that a statute completely bereft of a scienter
requirement as to the age of the performers would raise serious
constitutional doubts. It is therefore incumbent upon us to read
the statute to eliminate those doubts so long as such a reading is
not plainly contrary to the intent of Congress.
Edward
J. DeBartolo Corp. v.
Florida Gulf Coast
Building &
Constr. Trades Council, 485 U. S. 568, 575
(1988).
For all of the foregoing reasons, we conclude that the term
"knowingly" in § 2252 extends both to the sexually explicit nature
of the material and to the age of the performers.
As an alternative grounds for upholding the reversal of their
convictions, respondents reiterate their constitutional challenge
to 18 U. S. C. § 2256. These claims were not encompassed in the
question on which this Court granted certiorari, but a prevailing
party, without cross-petitioning, is "entitled under our precedents
to urge any grounds which would lend support to the judgment
below."
Dayton Bd. of Ed. v.
Brinkman, 433 U. S. 406, 419
(1977). Respondents argue that § 2256 is unconstitutionally vague
and overbroad because it makes the age of majority 18, rather than
16 as did the New York statute upheld in
New York v.
Ferber, supra, and because Congress replaced the term "lewd"
with the term "lascivious" in defining illegal exhibition of the
genitals of children. We regard these claims as insubstantial,
79
and reject them for the reasons stated by the Court of Appeals
in its opinion in this case.
Respondents also argued below that their indictment was fatally
defective because it did not contain a scienter requirement on the
age of minority. The Court of Appeals did not reach this issue
because of its determination that § 2252 was unconstitutional on
its face, and we decline to decide it here.
The judgment of the Court of Appeals is
Reversed.
JUSTICE STEVENS, concurring.
In my opinion, the normal, commonsense reading of a subsection
of a criminal statute introduced by the word "knowingly" is to
treat that adverb as modifying each of the elements of the offense
identified in the remainder of the subsection. Title 18 U. S. C. §
2252(a)(1) (1988 ed. and Supp. V) reads as follows:
"(a) Any person who-
"(1) knowingly transports or ships in interstate or
foreign commerce by any means including by computer or mails, any
visual depiction, if-
"(A) the producing of such visual depiction involves the use of
a minor engaging in sexually explicit conduct; and
"(B) such visual depiction is of such conduct." (Emphasis
added.)
Surely reading this provision to require proof of scienter for
each fact that must be proved is far more reasonable than adding
such a requirement to a statutory offense that contains no scienter
requirement whatsoever. Cf.
Staples v.
United States,
511 U. S. 600,
624 (1994) (STEVENS, J., dissenting). Indeed, as the Court
demonstrates,
ante, at 69-70, to give the statute its most
grammatically correct reading, and merely require knowledge that a
"visual depiction" has been
80
shipped in interstate commerce, would be ridiculous.
Accordingly, I join the Court's opinion without qualification.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.
Today's opinion is without antecedent. None of the decisions
cited as authority support interpreting an explicit statutory
scienter requirement in a manner that its language simply will not
bear.
Staples v.
United States, 511 U. S. 600 (1994),
discussed
ante, at 71, and
United States v.
United
States Gypsum Co., 438 U. S. 422 (1978),
discussed
ante, at 70, applied the background common-law
rule of scienter to a statute that said
nothing about the
matter.
Morissette v.
United States, 342 U. S. 246 (1952),
discussed
ante, at 70, applied that same background rule to
a statute that
did contain the word "knowingly," in order to
conclude that "knowingly converts" requires knowledge not merely of
the fact of one's assertion of dominion over property, but also
knowledge of the fact that that assertion
is a conversion,
i.
e., is wrongful. *
Liparota v.
United
States, 471 U. S.
419 (1985), discussed
ante, at 70, again involved a
statute that did contain the word "'knowingly,'" used in such a
fashion that it could reasonably and grammatically be thought to
apply (1) only to the phrase "'uses, transfers, acquires, alters,
or possesses'" (which would cause a defendant to be liable without
wrongful intent), or (2) also to the later phrase" 'in any manner
not authorized by [the statute].'" Once again applying the
background rule of scienter, the latter reasonable and permissible
reading was preferred.
There is no way in which any of these cases, or all of them in
combination, can be read to stand for the sweeping propo-
*The case did not involve, as the Court claims, a situation in
which, "even more obviously than in the statute presently before
us, the word 'knowingly' in its isolated position suggested that it
only attached to the verb 'converts,'"
ante, at 70, and we
nonetheless applied it as well to another word. The issue was
simply the meaning of "knowingly converts."
81
sition that "the presumption in favor of a scienter requirement
should apply to each of the statutory elements that criminalize
otherwise innocent conduct,"
ante, at 72,
even when the
plain text of the statute says otherwise. All those earlier
cases employ the presumption as a rule of interpretation which
applies when Congress has not addressed the question of criminal
intent
(Staples and
Gypsum), or when the import of
what it has said on that subject is ambiguous
(Morissette
and
Liparota). Today's opinion converts the rule of
interpretation into a rule of law, contradicting the plain import
of what Congress has specifically prescribed regarding criminal
intent.
In
United States v.
Thomas, 893
F.2d 1066, 1070 (CA9), cert. denied, 498 U. S. 826 (1990), the
Ninth Circuit interpreted 18 U. S. C. § 2252 to require knowledge
of neither the fact that the visual depiction portrays sexually
explicit conduct, nor the fact that a participant in that conduct
was a minor. The panel in the present case accepted that
interpretation. See
982 F.2d
1285, 1289 (CA9 1992). To say, as the Court does, that this
interpretation is "the most grammatical reading,"
ante, at
70, or "[t]he most natural grammatical reading,"
ante, at
68, is understatement to the point of distortion-rather like saying
that the ordinarily preferred total for two plus two is four. The
Ninth Circuit's interpretation is in fact and quite obviously
the only grammatical reading. If one were to rack his brains
for a way to express the thought that the knowledge requirement in
subsection (a)(l) applied
only to the transportation or
shipment of visual depiction in interstate or foreign commerce, and
not to the fact that that depiction was produced by use of a
minor engaging in sexually explicit conduct, and was a depiction of
that conduct,
it would be impossible to construct a sentence
structure that more clearly conveys that thought, and that thought
alone. The word "knowingly" is contained, not merely in a distant
phrase, but in an entirely separate clause from the one into which
today's opinion inserts it. The
82
equivalent, in expressing a simpler thought, would be the
following: "Anyone who knowingly double-parks will be subject to a
$200 fine if that conduct occurs during the 4:30to-6:30 rush hour."
It could not be clearer that the scienter requirement applies only
to the double-parking, and not to the time of day. So also here, it
could not be clearer that it applies only to the transportation or
shipment of visual depiction in interstate or foreign commerce.
There is no doubt. There is no ambiguity. There is no possible
"less natural" but nonetheless permissible reading.
I have been willing, in the case of civil statutes, to
acknowledge a doctrine of "scrivener's error" that permits a court
to give an unusual (though not unheard-of) meaning to a word which,
if given its normal meaning, would produce an absurd and arguably
unconstitutional result. See
Green v.
Bock Laundry
Machine Co., 490
U. S. 504, 527 (1989) (SCALIA, J., concurring). Even if I were
willing to stretch that doctrine so as to give the problematic text
a meaning it cannot possibly bear; and even if I were willing to
extend the doctrine to criminal cases in which its application
would produce conviction rather than acquittal; it would still have
no proper bearing here. For the
sine qua non of any
"scrivener's error" doctrine, it seems to me, is that the meaning
genuinely intended but inadequately expressed must be absolutely
clear; otherwise we might be rewriting the statute rather than
correcting a technical mistake. That condition is not met here.
The Court acknowledges that "it is a good deal less clear from
the Committee Reports and floor debates that Congress intended that
the requirement [of scienter] extend ... to the age of the
performers."
Ante, at 77. That is surely so. In fact, it
seems to me that the dominant (if not entirely uncontradicted) view
expressed in the legislative history is that set forth in the
statement of the Carter Administration Justice Department which
introduced the original bill: "[T]he defendant's knowledge of the
age of the child is not an ele-
83
ment of the offense but ... the bill is not intended to apply to
innocent transportation with no knowledge of the nature or
character of the material involved." S. Rep. No. 95-438, p. 29
(1977). As applied to the final bill, this would mean that the
scienter requirement applies to the element of the crime that the
depiction be of "sexually explicit conduct," but not to the element
that the depiction "involv[e] the use of a minor engaging" in such
conduct. See 18 U. S. C. §§ 2252(a)(1)(A) and (a)(2)(A). This is
the interpretation that was argued by the United States before the
Ninth Circuit. See 982 F. 2d, at 1289.
The Court rejects this construction of the statute for two
reasons: First, because "as a matter of grammar it is difficult to
conclude that the word 'knowingly' modifies one of the elements in
subsections (l)(A) and (2)(A), but not the other."
Ante, at
77-78. But as I have described, "as a matter of grammar" it is also
difficult (nay, impossible) to conclude that the word "knowingly"
modifies
both of those elements. It is really quite
extraordinary for the Court, fresh from having, as it says,
ibid., "emancipated" the adverb from the grammatical
restriction that renders it inapplicable to the
entire
conditional clause, suddenly to insist that the demands of syntax
must prevail over legislative intent-thus producing an end result
that accords
neither with syntax
nor with supposed
intent. If what the statute says must be ignored, one would think
we might settle at least for what the statute was meant to say; but
alas, we are told, what the statute says prevents this.
The Court's second reason is even worse: "[A] statute completely
bereft of a scienter requirement as to the age of the performers
would raise serious constitutional doubts."
Ante, at 78. In
my view (as in the apparent view of the Government before the Court
of Appeals) that is not true. The Court derives its "serious
constitutional doubts" from the fact that "sexually explicit
materials involving persons over the age of 17 are protected by the
First Amendment,"
84
ante, at 72. We have made it entirely clear, however,
that the First Amendment protection accorded to such materials is
not as extensive as that accorded to other speech. "[T]here is
surely a less vital interest in the uninhibited exhibition of
material that is on the borderline between pornography and artistic
expression than in the free dissemination of ideas of social and
political significance .... "
Young v.
American Mini
Theatres, Inc., 427 U. S. 50, 61 (1976).
See also
id., at 70-71 ("[E]ven though we recognize that the
First Amendment will not tolerate the total suppression of erotic
materials that have some arguably artistic value, it is manifest
that society's interest in protecting this type of expression is of
a wholly different, and lesser, magnitude than the interest in
untrammeled political debate ... ") (opinion of STEVENS, J., joined
by Burger, C. J., and White and REHNQUIST, JJ.). Cf.
FCC v.
Pacifica Foundation, 438 U. S. 726, 743 (1978)
(While some broadcasts of patently offensive references to
excretory and sexual organs and activities may be protected, "they
surely lie at the periphery of First Amendment concern"). Let us be
clear about what sort of pictures are at issue here. They are not
the sort that will likely be found in a catalog of the National
Gallery or the Metropolitan Museum of Art. "'[S]exually explicit
conduct,'" as defined in the statute, does not include mere nudity,
but only
conduct that consists of "sexual intercourse ...
between persons of the same or opposite sex," "bestiality,"
"masturbation," "sadistic or masochistic abuse," and "lascivious
exhibition of the genitals or pubic area." See 18 U. S. C. §
2256(2). What is involved, in other words, is not the clinical, the
artistic, nor even the risque, but hard-core pornography. Indeed, I
think it entirely clear that all of what is involved constitutes
not merely pornography but fully proscribable obscenity, except to
the extent it is joined with some other material (or perhaps some
manner of presentation) that has artistic or other social value.
See
Miller v.
California, 413 U. S. 15, 24 (1973).
(Such a requirement cannot be imposed, of
85
course, upon fully protected speech: one can shout "Down with
the Republic!," "Hooray for Mozart!," or even "Twenty-Three
Skidoo!,"
whether or not that expression is joined with
something else of social value.) And whereas what is on one side of
the balance in the present case is this material of minimal First
Amendment concern, the Court has described what is on the other
side-"prevention of sexual exploitation and abuse of children" -as
"a government objective of surpassing importance."
New York
v.
Ferber, 458
U. S. 747, 757 (1982).
I am not concerned that holding the purveyors and receivers of
this material absolutely liable for supporting the exploitation of
minors will deter any activity the United States Constitution was
designed to protect. But I am concerned that the Court's suggestion
of the unconstitutionality of such absolute liability will cause
Congress to leave the world's children inadequately protected
against the depredations of the pornography trade. As we recognized
in
Ferber, supra, at 766, n. 19, the producers of these
materials are not always readily found, and are often located
abroad; and knowledge of the performers' age by the dealers who
specialize in child pornography, and by the purchasers who sustain
that market, is obviously hard to prove. The First Amendment will
lose none of its value to a free society if those who knowingly
place themselves in the stream of pornographic commerce are obliged
to make sure that they are not subsidizing child abuse. It is no
more unconstitutional to make persons who knowingly deal in
hard-core pornography criminally liable for the underage character
of their entertainers than it is to make men who engage in
consensual fornication criminally liable (in statutory rape) for
the underage character of their partners.
I would dispose of the present case, as the Ninth Circuit did,
by reading the statute as it is written: to provide criminal
penalties for the knowing transportation or shipment of a visual
depiction in interstate or foreign commerce, and for
86
the knowing receipt or distribution of a visual depiction so
transported or shipped, if that depiction was (whether the
defendant knew it or not) a portrayal of a minor engaging in
sexually explicit conduct. I would find the statute, as so
interpreted, to be unconstitutional since, by imposing criminal
liability upon those not knowingly dealing in pornography, it
establishes a severe deterrent, not narrowly tailored to its
purposes, upon fully protected First Amendment activities. See
Smith v.
California, 361 U. S. 147, 153-154
(1959). This conclusion of unconstitutionality is of course no
ground for going back to reinterpret the statute, making it say
something that it does not say, but that
is constitutional.
Not every construction, but only" 'every
reasonable
construction must be resorted to, in order to save a statute from
unconstitutionality.'"
Edward J. DeBartolo
Corp. v.
Florida Gulf Coast Building &
Constr.
Trades Council, 485 U. S. 568, 575 (1988)
(quoting
Hooper v.
California, 155 U. S. 648, 657
(1895)) (emphasis added). '" "Although this Court will often strain
to construe legislation so as to save it against constitutional
attack, it must not and will not carry this to the point of
perverting the purpose of a statute ... " or judicially rewriting
it.'"
Commodity Futures Trading Comm'n v.
Schor,
478 U. S. 833,
841 (1986) (quoting
Aptheker v.
Secretary of State,
378 U. S. 500,
515 (1964)). Otherwise, there would be no such thing as an
unconstitutional statute. As I have earlier discussed, in the
present case no reasonable alternative construction exists, neither
any that can be coaxed from the text nor any that can be
substituted for the text on "scrivener's error" grounds. I
therefore agree with the Ninth Circuit that respondents' conviction
cannot stand.
I could understand (though I would not approve of) a disposition
which, in order to uphold this statute, departed from its text as
little as possible in order to sustain its constitutionality-i.
e., a disposition applying the scienter requirement to the
pornographic nature of the materials, but not to the age of the
performers. I can neither understand nor
87
approve of the disposition urged by the United States before
this Court and adopted today, which not only rewrites the statute,
but (1) rewrites it more radically than its constitutional survival
demands, and (2) raises baseless constitutional doubts that will
impede congressional enactment of a law providing greater
protection for the child-victims of the pornography industry. The
Court today saves a single conviction by putting in place a
relatively toothless childpornography law that Congress did not
enact, and by rendering congressional strengthening of that new law
more difficult. I respectfully dissent.
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