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United States v. X-Citement Video, Inc.
513 U.S. 64 (1994)

Chief Justice REHNQUIST delivered the opinion of the Court.

The Protection of Children Against Sexual Exploitation Act of 1977 prohibits the interstate transportation, 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. * * *

Title 18 U.S.C. § 2252 provides, in relevant part:

"(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 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.

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, discussed the common-law 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. 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. See also United States v. United States Gypsum Co. ("[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 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, the Court held the scienter requirement applied to 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." 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, 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. The Court first rejected the argument that the statute described a public welfare offense, traditionally excepted from the background principle favoring scienter. Morissette. 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. 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.

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, that presume a scienter requirement in the absence of express contrary intent.¹ 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.

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. 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. In the light of these 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.²

[The Court took an extensive look at the legislative history of the several bills that led to adoption of §2252.]

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 difficult to conclude that the word "knowingly" modifies one of the elements in subsections (1)(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 ("As with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant"); Smith v. California, Hamling v. United States, and Osborne v. Ohio, 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.

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.

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 and United States Gypsum applied the background common-law rule of scienter to a statute that said nothing about the matter. Morissette 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 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 that "the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct," 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, 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. To say, as the Court does, that this interpretation is "the most grammatical reading," or "[t]he most natural grammatical reading," 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 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.

[Justice Scalia concluded that knowingly does not apply to the elements in the subparagraphs and, as a result, found the statute to be unconstitutional as violative of the First Amendment.]