UPDATE -- On Friday afternoon, Judge Newsom wrote this concurring and dissenting opinion in U.S. v. Caniff. It starts this way:
If forced to choose a favorite movie, I’d have to go with A Man for All Seasons, which chronicles Sir Thomas More’s heroic, principled-to-the-death stand against King Henry VIII’s effort to procure a divorce from Catherine of Aragon—and in the process anoint himself the head of his own newly-formed church. (Christopher Nolan’s Inception runs a close second, for sheer mind-blowing awesomeness, but I digress . . . .) My favorite scene from my favorite movie: a testy dialogue between More and his son-in-law-to-be, the ever-zealous Richard Roper. Roper, anxious that the opportunistic hanger-on Richard Rich intends to double-cross More, who was then serving as the Lord Chancellor of England, pleads (along with More’s wife and daughter) to have Rich arrested on the ground that he’s “bad”—to which More responds, impassively, “There’s no law against that.” To the objection that while they go on “talk[ing],” Rich has “gone,” More rejoins, more emphatically: “And go he should even if he were the Devil himself until he broke the law.” Then, this gem—
Roper: So, now you’d give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: Yes, I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down—and you’re just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.
* * *
I knew this day would come—eventually, I’d have to hold my nose and cast (and then explain) a vote that I found utterly nauseating. Well, here we are. I couldn’t agree more with the majority—and the staffer-drafters of H.R. Rep. No. 99-910, whoever they were—that “[o]f all the crimes known to our society, perhaps none is more revolting than the sexual exploitation of children, particularly for the purposes of child pornography.” Maj. Op. at 16. And happily for me, Congress has given prosecutors plenty of ammunition to try, convict, and sentence the purveyors and consumers of child porn. But, I respectfully submit, the majority’s construction of 18 U.S.C. § 2251(d)(1)—to hold that when Caniff sent a private, person-to-person text message requesting explicit photos he “ma[de]” a “notice” for them—stretches that particular provision beyond the breaking point.
To be clear, I’m not suggesting that Caniff is the “Devil himself” (although the crimes of which he has been convicted are most assuredly devilish). Nor am I any way intimating that the majority’s construction of § 2251(d)(1) is tantamount to “cut[ting] down every law in [America]”—the majority’s interpretation is plausible, even if (I think) incorrect. And I am most certainly not casting myself in the role of the inimitable More. I’m simply saying that as badly as I’d like to get Caniff—to see him rung up on every count of the indictment—my job is to take the law as I find it, and however regrettable it may be to me, I cannot conclude that § 2251(d)(1) reaches Caniff’s conduct here.