# United States v. X-Citement Video, Inc.

Supreme Court of the United States
513 U.S. 64
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: Oct. 5, 1994 --- Decided: Nov. 29, 1994

## Concurring Opinion

    Stevens

## Dissenting Opinion

    Scalia
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)(1) and (2), if such depiction "involves the use of a minor engaging in sexually explicit conduct," §§ 2252(a)(1)(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(a)(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 [p65] 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. 472. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined, post, p. 473.
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.

## Notes

* ↑ 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, Rosalie 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.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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