Lead Opinion
delivered the opinion of the Court.
The Protection of Children Against Sexual Exploitation Act of 1977, as amended, prohibits the interstate transpor
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.
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.
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 (1)(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
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
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,
Liparota v. United States,
The same analysis drove the recent conclusion in Staples v. United States,
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
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 defiling with the regulated items.” Staples, supra, at 619. Age of minority in §2252 indisputably possesses the same status as an elemental fact because nonob-scene, sexually explicit materials involving persons over the age of 17 are protected by the First Amendment. Alexander v. United States,
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 (1)(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 Cong. 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,
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,
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 non-obscene 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*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 Cong. 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. 95-601, 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.
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
A final canon of statutory construction supports the reading that the term “knowingly” applies to both elements. Cases such as Ferber,
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 cer-tiorari, 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,
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.
Notes
The indictment also charged six counts of violating federal obscenity statutes and two racketeering counts involving the same. Respondents were acquitted of these charges.
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.”
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,
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,
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,
Congress amended §2251 to insert subsection (c) in 1986. Pub. L. 99-628, 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,
Concurrence Opinion
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,
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,
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
In United States v. Thomas,
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.,
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 uncon-tradicted) 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
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 (1)(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,”
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
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
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.”