The Supreme Court decided U.S. v. Williams yesterday, a case nominally about Congress' repeated attempts to pass an online obscenity law that could pass constitutional muster. Eugene Volokh suggests that the case is not so much about child pornography as it is about confirming the existence of a "solicitation of a crime" exception to the First Amendment. Volokh is therefore unconcerned that the opinion validates laws criminalizing the solicitation of criminal acts, even when the acts are impossible (as when a person offers what he believes to be child pornography for sale, even though it is not):
So the opinion strikes me as generally quite sound, not much of a change in child pornography law, and an important but fully expected recognition of the solicitation/offer exception. The recognition of this exception requires the Court to define and police the "important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality," the latter of which is protected under Brandenburg v. Ohio and many other cases; but the Court's recognition of this distinction, which I just quoted, and the necessity for such a distinction, leads me not to worry too much about the future on this score. So on balance it's not surprising to me that the result was a lopsided 7-2.
Volokh's discussion seems sensible; I was surprised that the solicitation exception was not already well-established by SCOTUS. Certainly the notion that you can break the law by attempting something factually impossible (like buyinging flour you think is cocaine) is well-established.
Last 5 posts by Ken White
- Department of Justice Uses Search Warrant To Get Data On Visitors to Anti-Trump Site - August 14th, 2017
- America At The End of All Hypotheticals - August 14th, 2017
- Lawsplainer: Why John Oliver Is Anti-Diversity Now - August 11th, 2017
- Anatomy of a Scam, Chapter 15: The Wheels, They Grind - August 10th, 2017
- We Interrupt This Grand Jury Lawsplainer For A Search Warrant Lawsplainer - August 9th, 2017