# United States v. X-Citement Video, Inc./Dissent Scalia

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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 proposition [p81] 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)(1) 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 [p82] 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 4:30-to-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 element [p83] 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 (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," [p84] 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 risqué, 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 [p85] 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 [p86] 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 [p87] 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 child-pornography law that Congress did not enact, and by rendering congressional strengthening of that new law more difficult. I respectfully dissent.

## Notes

* ↑ 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."
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