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Sagar Dhara (Engineer, Hyderabad), Sri Kuchelar (Lawyer & labor leader, Madras), Dr. Koenraad Elst (Indologist, Belgium)

Volume 13: Part 2 31 August 2017 No. 16

CONTENTS DEMONETIZATION AND DIGITIZATION
1. Demonetization and Digitization 1
2. BRICS Summit 2017 2
3. Political Trouble in India :
1910-1917, J.C. Ker (23) 3-6 Courtesy:
Chalasani Srinivas & Naveen Kumar N. on FB Courtesy: @rajneesh350 Courtesy: www.scoopwhoop.com
Forbes

4. American Civil War not over
Slavery, Dr. Paul Craig Roberts 7-8
5. The Beckoning of Nuclear
War, John Pilger 9-10
6. Shayara Bano v. Union of 11-18,
of India & Ors. [IND-SC] (1) 67-74
(Triple Talaq case judgment)
7. Paroline v. U.S. [US-SC] 19-45
8. ACLU v. Mukasey, AG of
the US. [US-CA: 3rd Circuit] 46-66
9. Solving 9/11: Deception
that changed the World (15),
Christopher Bollyn 75-82
10. Tributes to Prof. V.V. Reddy 83
11. Poems, Robert Southey 84
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NOTE: The opinions and comments in the editorials are exclusively the Editors and
need not necessarily reflect the approval or consent of all or any of the
editorial advisors or of the publisher even - IMS.
fiascos are the two sterling achievements of the BJP regime led by Modi
in its 3 years notorious rule, it seems. The so-called digitization talk and
exhortations are only to enrich corporate coffers especially the Ambanis
and Adanis and PayTM-wallahs but in no way helps the people, rather
inconveniences and troubles them much in a largely rural based or linked
country with not much digital knowledge among people. Also the way our
computers and digital networks work or caused to work or fail is well
known and the above images of the idle ATMs sheltering dogs and men
instead of dispensing any notes are live illustrations of both the debacles.
The recent RBI annual report as also the reply given by the RBI to the
parliamentary panel set up to enquire into the working and consequences
of the demonetization scheme clearly point out that there was no black
money removed at all but 99% of the banned notes found their way back
to the banks in legal exchanges. So all the trumpeting about curbing black
money, unearthing and seizing it and putting the economy on right tracks
is nothing but false propaganda to buttress an ever failing chauvinist
government at the centre. It seems both Dr. Manmohan Singh who used an
unusually strong language in condemning this harebrained scheme as a
monumental management failure, and in fact, a case of organized loot, legalized
plunder of the common people and the world-famous Forbes who severely
condemned the measure as a massive theft of peoples property a shocking
move for a democratically elected government and pointed out that
businesses are closing as companies are not able to pay their employees,
currency change cannot stop terrorists from committing evil acts of terror.
digitization "will happen in a free market one way or the other, but it needs
time", have been fully justified and it is for Modi now to stick to his
promise/challenge of hanging if proved wrong. It must not be forgotten
that no less than 200 innocent persons died in serpentine queues all over
the country due to the unbearable travails caused by these crazy schemes
of demonetization and digitization that boomeranged. This editor found
that, with all its development, the USA still deals in cash widely, even one
cent coins are used extensively, and demands Modi and Jaitley better
produce a one paisa coin from their pockets before talking about
economics on mending or ending it!
1
2 (2017) 2 LAW
FORTHCOMING BRICS SUMMIT 2017 AT XIAMEN
Photos of the picturesque port city of XIAMEN, Fujian Province,
in Southeast coast One of the friendliest & safest cities in China
BRICS is made up of China, Brazil, Russia, India
and South Africa.
The first BRIC Foreign
Ministers Meeting was held in 2006 among
China, Brazil, Russia and India on the margins of
the general debate of the 61st session of the
United Nations General Assembly, which drew
the prelude for BRIC cooperation. In 2009, the first
BRIC Summit was held in Yekaterinburg, Russia.
Since then, the Summit has become an annual event.
In December 2010, China, as the Chair, invited
South Africa to join BRIC and attend the Summit
in Sanya, China. BRIC officially enlarged to
include 5 countries and the acronym changed into
BRICS. In the 10 years since its inception,
BRICS cooperation has continued to consolidate
its foundation and expanded to more areas. It is
now a multi-level process led by the Summit, buttressed
by meetings of the national Security Advisors Foreign
Ministers and other ministerial meetings, and enriched
by pragmatic cooperation in dozens of areas such as
economy, trade, finance, business, agriculture,
education, health, science and technology, culture, think
tanks, and friendship cities. Cooperation mechanisms
such as the New Development Bank, Contingent
Law Animated World, 31 August 2017
Reserve Arrangement, Business Council and
Think Tank Council have been established.
Pragmatic cooperation has gone to greater depth
to yield more fruitful results and exerted
important influence globally. Thanks to 10 years
of development, BRICS has grown into an
important platform for cooperation among emerging
markets and developing countries. BRICS countries
come from Asia, Africa, Europe and America and
are all members of the G20. Together, they
account for 26.46% of world land area, 42.58% of
world population, 13.24% of World Bank voting power
and 14.91% of IMF quota shares. According to
IMFs estimates, BRICS countries generated 22.53%
of the world GDP in 2015 and has contributed more
than 50% of world economic growth during the last 10
years. [Courtesy: www.brics2017.org]
India hosted the 8th Summit at Goa in 2016 and
now China will hold the 9th summit in a grand
manner at the beautiful city of Xiamen, from
4 September 2017 onward, and this, coming in the
wake of recent settlement of the disturbing Doklam
border-standoff between Indian and Chinese troops, is
expected to bring both countries closer.
2
 POLITICAL TROUBLE IN INDIA, 1907-
1907-1917
1917
CHAPTER V:
THE MANIKTOLLA BOMB CONSPIRACY
THE GHOSE FAMILY
The full name of the former was Arabindo
Ackroyd Ghose, Ackroyd being the maiden name of a
Mrs. Beveridge who was a friend of his father, while
the birth certificate of Barindra, found in the
Maniktolla Garden, showed that he was registered at
Croydon, England, on 5th January, 1880, as
Emmanuel, son of Dr. K.D. Ghose. Barindra was
brought to India when he was only a year old, but
Arabindo was brought up and educated entirely in
England, and when he had returned to India he had
forgotten his mother tongue; even after he had been
in Bengal some years he had to apologise to a
meeting in Calcutta because he was unable to
address them in Bengali. Arabindo was a youth of
great literary ability and obtained a first class in
the Classical Tripos at the Cambridge. He passed
into the Indian Civil Service, but was rejected in
the riding test. Much embittered by this he came
out to India and obtained an appointment as Vice-
Principal of the Gaekwars College, Baroda, on a
salary of Rs. 400/- a month. Here his brother
Barindra stayed with him in 1901, and under his
guidance studied works on political subjects, such
as, from his own account, Carlyles French
Revolution, Digbys Prosperous British India,
and Ranades History of the Marathas. From
these studies he concluded that he must do
something for the independence of the country.
With this object he returned to Bengal in 1902
and preached his views in many parts of the
Province, starting clubs for lathi play in Dacca,
Mymensingh, Rangpur, Dinajpur and other
places, the object being, to use his own words, to
stir up young people to take part in revolutionary work
and free the country from foreign yoke. In 1903 he
returnd to Baroda and stayed for about a year
with Arabindo. During this period he discussed
Continued from Law Animated World, 15 August 2017
issue; photos and emphases in bold ours - IMS.
3 Law Animated World, 31 August 2017
James Campbell Ker
politics with his brother, and he says His
opinion was the same as mine, with this [142]
difference only that he did not participate in any
of my mission.
BARINDRA GHOSE
In 1904, Barindra returned to Calcutta, and
about this time Arabindo Ghose appears to have
written the pamphlet called Bhawani Mandir, or
the temple of Bhawani, which, as it really
contains the germ of the Hindu revolutionary
movement in Bengal, is reprinted in Chapter III.
Barindra resumed his work in Bengal, and when
the partition of Bengal took place in 1905 he
states that he found the anti-partition agitation
interested people more than revolutionary work,
so he decided that he must get up a party of his
own to rise against the Government. In 1906 he
started the Yugantar newspaper (see page 69)
along with Abinash Chandra Bhattacharji and
Bhupendra Nath Dutt. When the arrests of May
2nd, 1908, took place the former was found
staying with Arabindo Ghose at 48, Grey Street,
Calcutta; the latter had been convicted in July,
1907, of sedition as editor of the Yugantar, and
sentenced to a years imprisonment, and so was
out of the conspiracy for the time.
ARABINDO GHOSE
In the same year, 1906, Arabindo gave up his
appointment on Rs. 400/- a month in Baroda and came
to Calcutta as a Professor of History and Political
Science in the newly started National College on Rs.
150/- a month. In November of the same year, the
Bande Mataram newspaper was started, in English, by a
company composed of Arabindo Ghose, Subodh
Chandra Mullick, Shyam Sundar Chakravarti,
Bepin Chandra Pal and others. Arabindo was
believed to be the editor, and was prosecuted as
such for sedition in August, 1907; he was
acquitted as the fact of his being editor was not proved
to the satisfaction of the court, but the printer Apurba
Krishna Bose was convicted and his conviction
was upheld by the High Court, thus establishing
the seditious character of the paper.
4 Political Trouble in India : 1907-1917 (J.C. Ker)
HEM CHANDRA DAS GOES TO PARIS
The revolutionary centre in
Maniktolla garden was set up in
1907, but before that the policy of
manufacturing bombs and explosives
had been settled as [143] the
remarkable career of Hem Chandra
Das will make clear. He had been
a cattle-pound inspector in
Midnapore District and was dismissed in 1906,
when he took up national work. When his house
was searched, on his arrest in May, 1908, a letter
was found dated Chittagong, 22nd October, 1906,
from his sister-in-law to his wife saying she heard
he left India for some good work; he is
believed to have started about September. Further
correspondence showed that he had gone to Paris,
where he stayed for about a year and attended a
mechanical work shop. In a letter from Paris to
his wife, dated 5th July, 1907, he praised Lajpatrai
and Ajit Singh, and asked how she would like her
husband to be one of these heroes, and in another
he mentioned that he had been to London and
stayed at the India House, as a guest of
Shyamaji Krishnavarma, the notorious editor of
the Indian Sociologist. He returned to India in
January, 1908. The following curious
memoranda, obviously referring to him, were
found in a notebook discovered in the Maniktolla
garden. 11th January, and onwards and
immediately below U.D. to be kept here, H.D. to
be looked up. They spend a week together. MSS
from H.D. The point of these notes is that till
Hem Das returned from France Ullaskar Dutt was the
bomb-maker to the society. The cyclostyled manuscript
bomb manual found in the Garden was evidently of
French origin as the weights and measures were given
in French units, and there was a table at the end
showing how to convert these into English
weights and measures. It was established that
after his return Hem Chandra Das became the bomb
expert to the society and was helped in his work by
Ullaskar Dutt, and the plain meaning of the
memoranda is that these two men were to spend a week
together to enable Ullaskar Dutt to learn the work, and
that the bomb manual was to be obtained from Hem
Chandra Das.
Law Animated World, 31 August 2017
(2017) 2 LAW
The attempt to derail the Lieutenant Governor
Bengals special train on the 6th of December, 1907, had
been noticed by the Paris Police, and on information
obtained from them from a secret agent a
memorandum [144] was prepared and
communicated to the British Government; it
amounted to this:-
(1) That there was in Paris a Russian anarchist
named Safranski, an ex-officer of
Engineers, who was in touch with some
Hindu students in that city, supposed to be
Bengalis;
(2) That Safranski possessed a manual on the
manufacture and use of explosives, and that
he was instructing the Hindus with the
object of bringing about a change of rule in
India by acts of terrorism;
(3) That Safranski being unable to communicate
with his camarades noirs as he called
them, except through an interpreter, was
learning Hindustani at the Ecole des
Langues Orientales; and
(4) It was suggested that the recent attempt to
wreck the train of the Lieutenant-Governor
of Bengal was an outcome of this
connection between Safranski and the
Hindu students.
ENQUIRIES IN PARIS
In January, 1908, endeavours were made in
Paris to obtain further details, and the
Commissaire of Police who had obtained the
information was interviewed by a British officer.
He declared that the language of the memorandum
was much too precise. His knowledge of
Safranskis doings had been obtained from an
informer, an acquaintance of Safranski; but this
informer had never seen the Hindu students, nor
did he know their names or residences; he had
merely reported what Safranski had told him. The
Commissaire himself had surmised that they must
be Bengalis because Safranski had described
them as noirs and the Commissaire was under
the impression that natives of other parts of India
were not black. The Commissaire said that it
would be impossible to obtain any information
about the identity of these Hindus, but if he were
4
(2017) 2 LAW Political Trouble in India : 1907-1917 (J.C. Ker)
given the names of any Hindus in Paris he would
endeavour to see whether they were in
communication with Safranski. The latter,
however, was most suspicious, and any question
by the informer would at [145] once put him on
his guard and close this source of information. As
mentioned above Hem Chandra Das was by this
time back in India and this line of enquiry led to
nothing. The only thing that could be verified for
certain was that Safranski was actually as student
at the Ecole des Langues Orientales. But it
appears now that the informers account was a great
deal nearer the truth than the Commissaire of Police
imagined; it was given about four months before the
discovery in Maniktolla garden of the bomb manual
which, there is little doubt, was a translation of
Safranskis.
UPEN BANERJI
Another important member of
the society was Upendra Nath
Banerji, born about 1879, who
belonged to Gondalpara in French
Chandernagore. He was a
Brahmin and has studied Hindu
and Western Philosophy for two
years in an Ashram near Almora
in the United Provinces. Returning home in 1905,
he became a school master, and while thus
employed he says, I took it into my head to
serve the cause of my country by turning out the
British Government and securing independence
for our countrymen. Accordingly, he came to
Calcutta and joined the staff of the Bande
Mataram newspaper at the end of 1906. He also
began to contribute articles to the Yugantar and
so got to know Barindra Kumar Ghose who was
also a contributor. In July, 1907, he went with
Barin Ghose to the Maniktolla Garden and met
some of the conspirators there. About this time he
says, I was actuated to free the country from the
foreign yoke by starting a religious institution, or
joining one, if any such institution existed,
because I concluded in my mind that India would
never be free until the feelings of the people were
touched through moral and religious precepts.
From September 1907 to February 1908, he
5 Law Animated World, 31 August 2017
5
wandered all through India in search of a sadhu
of his way of thinking, or a suitable institution,
visitin, Benares, Allahabad, Bombay, the
Ganganath Temple near Baroda, Nepal and other
places; but failing in his quest he returned to
Calcutta and took up the work of recruiting, along
with Barin Ghose, suitable boys for the secret
society, and the initiation and education of the
younger members. The subjects he taught were
Political Economy, Political Scince and [146] the
Hindu religion. In short he occupied himself in
carrying out the scheme laid down by Arabindo
Ghose in the Appendix to Bhawani Mandir. (see
page 42.)
THE LEADERS OF THE CONSPIRACY
None of the other members of the society was
of sufficient importance to require special
mention; the organizer Barindra Kumar Ghose,
the local bomb expert Ullaskar Dutt, the Paris-
trained expert Hem Chandra Das and the
preceptor Upendra Nath Banerji were the moving
spirits and the most dangerous members, and from
what has gone before, and from the chapter on the
literature of the revolution, it will be apparent that
the spirit animating the whole was to a great
extent the spirit of Arabindo Ghose.
MURDER OF THE APPROVER
On August 19th, 1908, 30 persons were
committed for trial, and a further batch of 7 on
the 14th of September. Meanwhile on August 31st,
the approver in the case, Norendra Nath Gossain,
was shot dead in jail by two of the accused Kanai
Lal Dutt and Satyendra Nath Bose who were
afterwards executed. The latter had been
committed for trial separately so that there were
originally 38 accused in all.
RESULT OF THE TRIAL
After a protracted trial in the Sessions Court
judgment was delivered on May 6th, 1909; the
Court sentenced Barindra Kumar Ghose and
Ullaskar Dutt to death, 10 others including Hem
Chandra Das to transportation for life, and 7
others to minor sentences. Arabindo Ghose and
16 others were acquitted. On appeal to the High
6 Political Trouble in India : 1907-1917 (J.C. Ker) (2017) 2 LAW

Court, the Chief Justice and Mr Justice Carnduff, taking leave, would never get away alive. There
on November 23rd, 1909, upheld the convictions was certainly in the case against Arabindo Ghose
of Barindra Ghose and 11 others, disagreed a good deal to explain away. In the first place the
regarding five and acquitted one; during the Garden at Maniktolla, of which he was one of the
hearing of the case one of the accused had died. joint owners, was being organised on the lines
The matter of the five accused was referred to a laid down by him in his [148] pamphlet Bhawani
third Judge who on 18th February, 1910, Mandir. A copy of this book in English, with the
confirmed the conviction of two and acquitted the name Barin K. Ghose on the cover, was found in
remaining three. The final result of the trial was the possession of one of the conspirators, and
that Barindra Kumar Ghose, Ullaskar Dutt, Hem other copies were found in the garden and at
Chandra Das and Upendra Nath Banerji were other revolutionary centres, showing that it was
sentenced to transportation for life, three others to studied by the members.
transporation for ten years, four [147] to RULES OF THE GARDEN CONSPIRACY
transporation for seven years and three to
rigorous imprisonment for 5 years. The character of the institution set up in the
Garden rests not merely on inference or the
The following is the summary of the sentences statements of members but on documentary
finally passed in this case:- evidence. One of the notebooks found in the
1. Barindra Kumar Ghose Transportation for life. Garden contain the following:-
2. Ullaskar Dutt Transportation for life. Ashrama for giving a general intellectual and
3. Hem Chandra Das Transportation for life. moral training to all new workers and a special
4. Upendra Nath Banerji Transportation for life. training to those meant for missionary work.
5. Bibhuti Bhusan Sircar Transportation for 10 years A. General training to consist of
6. Hrishi Kesh Kanjilal Transportation for 10 years Religious training History
1.
7. Indu Bhusan Roy Transportation for 10 years
2. Political training. Geography
8. Sudhir Kumar Sircar Transportation for 7 years Junior class Indian Economics
9. Abinash Chandra Transportation for 7 years 3. Physical training Revolutionary knowledge
Bhattacharji
Special training to be given at other departments (Technical)
10. Poresh Chandra Maulik Transportation for 7 years
4. Knowledge of Hindi & Sanskrit & English (Optional)
11. Birendra Chandra Sen Transportation for 7 years
12. Sishir Kumar Ghose Rigorous imprisonment (to be continued)
for 5 years *****
13. Nirapada Roy Rigorous imprisonment
for 5 years Read and subscribe to:
14. Sailendra Nath Bose Rigorous imprisonment Analytical
for 5 years
MONTHLY REVIEW
ACQUITTAL OF ARABINDO GHOSE
Editor: SUBHAS AIKAT
The matter which aroused most interest in
Annual subscription : Rs. 350/-
connection with the trial was the acquittal of
Arabindo Ghose. Both moderate and extremist Contact for details:
politicians in Bengal believed or affected to believe in CORNERSTONE PUBLICATIONS,
his innocence; on the other hand the revolutionary Ramesh Dutta Sarani, P.O. Hijli Cooperative,
section let it be generally known that if he were KHARAGPUR - 721 306 (W.B.)
convicted the judge, who was believed to be

Law Animated World, 31 August 2017 6

 AMERICAN CIVIL WAR NOT OVER SLAVERY
How We Know The So-Called Civil War
Was Not Over Slavery
When I read Professor Thomas DiLorenzos
article (http://www.paulcraigroberts.org/2017/08/21/
lincoln-myth-ideological-cornerstone-america-empire/)
the question that lept to mind was, How come the
South is said to have fought for slavery when the
North wasnt fighting against slavery? Two days
before Lincolns inauguration as the 16th
President, Congress, consisting only of the
Northern states, passed overwhelmingly on March
2, 1861, the Corwin Amendment that gave
constitutional protection to slavery. Lincoln
endorsed the amendment in his inaugural address,
saying I have no objection to its being made
express and irrevocable.
Quite clearly, the North was not prepared to go to
war in order to end slavery when on the very eve of
war the US Congress and incoming president
were in the process of making it unconstitutional to
abolish slavery. Here we have absolute total proof
that the North wanted the South kept in the Union far
more than the North wanted to abolish slavery.
If the Souths real concern was maintaining
slavery, the South would not have turned down
the constitutional protection of slavery offered
them on a silver platter by Congress and the
President. Clearly, for the South also the issue was
not slavery. The real issue between North and South
could not be reconciled on the basis of accommodating
slavery. The real issue was economic as DiLorenzo,
Charles Beard and other historians have
documented. The North offered to preserve slavery
irrevocably, but the North did not offer to give up the
high tariffs and economic policies that the South saw as
inimical to its interests.
Blaming the war on slavery was the way the
northern court historians used morality to cover up
Lincolns naked aggression and the war crimes of his
generals. Demonizing the enemy with moral language
works for the victor. And it is still ongoing. We see
Courtesy: Paul Craig Roberts at www.paulcraigroberts.org
dated 23 August 2017; emphases in bold ours - IMS.
7 Law Animated World, 31 August 2017
Paul Craig Roberts
in the destruction of statues the determination to
shove remaining symbols of the Confederacy
down the Memory Hole.
Today the ignorant morons, thoroughly
brainwashed by Identity Politics, are demanding
removal of memorials to Robert E. Lee, an alleged
racist toward whom they express violent hatred.
This presents a massive paradox. Robert E. Lee was
the first person offered command of the Union armies.
How can it be that a Southern racist was
offered command of the Union Army if the Union
was going to war to free black slaves?
Virginia did not secede until April 17,
1861, two days after Lincoln called up troops for
the invasion of the South.
Surely there must be some hook somewhere
that the dishonest court historians can use on
which to hang an explanation that the war was
about slavery. It is not an easy task. Only a small
minority of southerners owned slaves. Slaves were
brought to the New World by Europeans as a
labor force long prior to the existence of the US
and the Southern states in order that the abundant
land could be exploited. For the South slavery was
an inherited institution that pre-dated the South.
Diaries and letters of soldiers fighting for the
Confederacy and those fighting for the Union
provide no evidence that the soldiers were
fighting for or against slavery. Princeton
historian, Pulitzer Prize winner, Lincoln Prize
winner, president of the American Historical
Association, and member of the editorial board of
Encyclopedia Britannica, James M. McPherson, in
his book based on the correspondence of one
thousand soldiers from both sides, What They
Fought For, 1861-1865, reports that they fought for
two different understandings of the Constitution.
As for the Emancipation Proclamation, on the
Union side, military officers were concerned that
the Union troops would desert if the
Emancipation Proclamation gave them the
impression that they were being killed and
maimed for the sake of blacks. That is why
8 American Civil War was not over Slavery (Dr. Paul Craig Roberts)
Lincoln stressed that the proclamation was a war
measure to provoke an internal slave rebellion that
would draw Southern troops off the front lines.
If we look carefully we can find a phony hook
in the South Carolina Declaration of Causes of
Secession (December 20, 1860) as long as we
ignore the reasoning of the document. Lincolns
election caused South Carolina to secede. During his
campaign for president Lincoln used rhetoric
aimed at the abolitionist vote. (Abolitionists did
want slavery abolished for moral reasons, though it is
sometimes hard to see their morality through their
hate, but they never controlled the government.)
South Carolina saw in Lincolns election rhetoric
intent to violate the US Constitution, which was a
voluntary agreement, and which recognized each state
as a free and independent state. After providing a
history that supported South Carolinas position,
the document says that to remove all doubt about
the sovereignty of states an amendment was added,
which declared that the powers not delegated to the
United States by the Constitution, nor prohibited by it
to the States, are reserved to the States, respectively, or
to the people.
South Carolina saw slavery as the issue being
used by the North to violate the sovereignty of states
and to further centralize power in Washington. The
secession document makes the case that the North,
which controlled the US government, had broken the
compact on which the Union rested and, therefore, had
made the Union null and void. For example, South
Carolina pointed to Article 4 of the US
Constitution, which reads: No person held to
service or labor in one State, under the laws
thereof, escaping into another, shall, in
consequence of any law or regulation therein, be
discharged from such service or labor, but shall
be delivered up, on claim of the party to whom
such service or labor may be due. Northern
states had passed laws that nullified federal laws
that upheld this article of the compact. Thus, the
northern states had deliberately broken the
compact on which the union was formed.
The obvious implication was that every aspect
of states rights protected by the 10th Amendment
could now be violated. And as time passed they
were, so South Carolinas reading of the situation
Law Animated World, 31 August 2017
(2017) 2 LAW
was correct. The secession document reads as a
defense of the powers of states and not as a
defense of slavery. Here is the document:
http://teachingamericanhistory.org/library/document/s
outh-carolina-declaration-of-causes-of-secession/.
Read it and see what you decide.
A court historian, who is determined to focus
attention away from the Norths destruction of
the US Constitution and the war crimes that
accompanied the Constitutions destruction, will
seize on South Carolinas use of slavery as the
example of the issue the North used to subvert the
Constitution. The court historians reasoning is
that as South Carolina makes a to-do about
slavery, slavery must have been the cause of the
war.
As South Carolina was the first to secede, its
secession document probably was the model for
other states. If so, this is the avenue by which
court historians, that is, those who replace real
history with fake history, turn the war into a war
over slavery. Once people become brainwashed,
especially if it is by propaganda that serves power, they
are more or less lost forever. It is extremely difficult
to bring them to truth. Just look at the pain and
suffering inflicted on historian David Irving for
documenting the truth about the war crimes committed
by the allies against the Germans. There is no doubt
that he is correct, but the truth is unacceptable.
The same is the case with the War of Northern
Aggression. Lies masquerading as history have been
institutionalized for 150 years. An institutionalized lie is
highly resistant to truth.
Education has so deteriorated in the US that
many people can no longer tell the difference
between an explanation and an excuse or
justification. In the US denunciation of an
orchestrated hate object is a safer path for a writer
than explanation. Truth is the casualty. That truth is
so rare everywhere in the Western World is why
the West is doomed. The United States, for
example, has an entire population that is completely
ignorant of its own history. As George Orwell said,
the best way to destroy a people is to destroy their
history.
*****
8
 THE BECKONING OF NUCLEAR WAR
THE
Dr. Paul Craig Roberts has introduced this
excellent eyeopener article on his website with a
single sentence commendation: The admirable
and honorable truth-teller John Pilger warns us that
nuclear war is closer than we think.
ON THE BEACH 2017:
THE BECKONING OF NUCLEAR WAR
The US submarine captain says, "We've all got
to die one day, some sooner and some later. The
trouble always has been that you're never ready,
because you don't know when it's coming. Well,
now we do know and there's nothing to be done
about it." He says he will be dead by September.
It will take about a week to die, though no one
can be sure. Animals live the longest.
The war was over in a month. The United States,
Russia and China were the protagonists. It is not
clear if it was started by accident or mistake.
There was no victor. The northern hemisphere is
contaminated and lifeless now.
A curtain of radioactivity is moving south
towards Australia and New Zealand, southern
Africa and South America. By September, the
last cities, towns and villages will succumb. As
in the north, most buildings will remain
untouched, some illuminated by the last flickers
of electric light.
This is the way the world ends
Not with a bang but a whimper
These lines from T.S. Eliot's poem. The
Hollow Men appear at the beginning of Nevil
Shute's novel On the Beach, which left me close
to tears. The endorsements on the cover said the
same. Published in 1957 at the height of the Cold
War when too many writers were silent or cowed,
it is a masterpiece. At first the language suggests
a genteel relic; yet nothing I have read on nuclear
war is as unyielding in its warning. No book is
more urgent. I read On the Beach for the
first time the other day, finishing it as the US
Courtesy: John Pilger at http://johnpilger.com/; through
Dr. Paul Craig Roberts at www.paulcraigroberts.org; dated
4 August 2017; emphases in bold ours - IMS.
9 Law Animated World, 31 August 2017
- John Pilger
Congress passed a law to wage economic war on Russia,
the world's second most lethal nuclear power. There
was no justification for this insane vote, except the
promise of plunder. The "sanctions" are aimed at
Europe, too, mainly Germany, which depends on
Russian natural gas and on European companies that
do legitimate business with Russia. In what passed for
debate on Capitol Hill, the more garrulous senators
left no doubt that the embargo was designed to force
Europe to import expensive American gas.
Their main aim seems to be war real war. No
provocation as extreme can suggest anything else.
They seem to crave it, even though Americans
have little idea what war is. The Civil War of
1861-5 was the last on their mainland. War is what
the United States does to others. The only nation to
have used nuclear weapons against human beings, they
have since destroyed scores of governments, many of
them democracies, and laid to waste whole societies -
the million deaths in Iraq were a fraction of the carnage
in Indo-China, which President Reagan called "a noble
cause" and President Obama revised as the tragedy of
an "exceptional people". He was not referring to the
Vietnamese.
Filming last year at the Lincoln Memorial in
Washington, I overheard a National Parks Service
guide lecturing a school party of young teenagers.
"Listen up," he said. "We lost 58,000 young soldiers
in Vietnam, and they died defending your freedom."
At a stroke, the truth was inverted. No freedom was defended.
Freedom was destroyed. A peasant country was invaded and
millions of its people were killed, maimed, dispossessed,
poisoned; 60,000 of the invaders took their own lives. Listen
up, indeed. A lobotomy is performed on each generation.
Facts are removed. History is excised and replaced by what
Time magazine calls "an eternal present". Harold Pinter
described this as "manipulation of power worldwide,
while masquerading as a force for universal good, a
brilliant, even witty, highly successful act of hypnosis
[which meant] that it never happened. Nothing ever
happened. Even while it was happening it wasn't
happening. It didn't matter. It was of no interest."
Those who call themselves liberals or tendentiously "the
left" are eager participants in this manipulation, and its
brainwashing, which today revert to one name: TRUMP.
Trump is mad, a fascist, a dupe of Russia. He is also a gift for
"liberal brains pickled in the formaldehyde of identity
10 The Beckoning of Nuclear War (John Pilger)
politics", wrote Luciana Bohne memorably. The
obsession with Trump the man - not Trump as a symptom and
caricature of an enduring system - beckons great danger for
all of us. While they pursue their fossilised anti-Russia
agendas, narcissistic media such as the Washington
Post, the BBC and the Guardian suppress the essence
of the most important political story of our time as
they warmonger on a scale I cannot remember in my
lifetime. On 3 August, in contrast to the acreage the
Guardian has given to drivel that the Russians
conspired with Trump (reminiscent of the far-right
smearing of John Kennedy as a "Soviet agent"), the
paper buried, on page 16, news that the President of the
United States was forced to sign a Congressional bill declaring
economic war on Russia. Unlike every other Trump
signing, this was conducted in virtual secrecy and attached
with a caveat from Trump himself that it was "clearly
unconstitutional". A coup against the man in the White House
is under way. This is not because he is an odious human
being, but because he has consistently made clear he does not
want war with Russia. This glimpse of sanity, or simple
pragmatism, is anathema to the "national security" managers
who guard a system based on war, surveillance, armaments,
threats and extreme capitalism. Martin Luther King called
them "the greatest purveyors of violence in the world today".
They have encircled Russia and China with
missiles and a nuclear arsenal. They have used neo-
Nazis to instal an unstable, aggressive regime on
Russia's "borderland" - the way through which Hitler
invaded, causing the deaths of 27 million people. Their
goal is to dismember the modern Russian Federation.
In response, "partnership" is a word used incessantly by
Vladimir Putin anything, it seems, that might halt an
evangelical drive to war in the United States. Incredulity in
Russia may have now turned to fear and perhaps a
certain resolution. The Russians almost certainly have
war-gamed nuclear counter strikes. Air-raid drills are
not uncommon. Their history tells them to get ready.
The threat is simultaneous. Russia is first, China is
next. The US has just completed a huge military
exercise with Australia known as Talisman Sabre.
They rehearsed a blockade of the Malacca Straits and
the South China Sea, through which pass China's
economic lifelines. The admiral commanding the US
Pacific fleet said that, "if required", he would nuke
China. That he would say such a thing publicly in the
current perfidious atmosphere begins to make fact of
Nevil Shute's fiction. None of this is considered news.
No connection is made as the bloodfest of Passchendaele a
century ago is remembered. Honest reporting is no longer
welcome in much of the media. Windbags, known as
Law Animated World, 31 August 2017
(2017) 2 LAW
pundits, dominate: editors are infotainment or party
line managers. Where there was once sub-editing,
there is the liberation of axe-grinding clichs. Those
journalists who do not comply are defenestrated.
The urgency has plenty of precedents. In my film,
The Coming War on China, John Bordne, a member
of a US Air Force missile combat crew based in
Okinawa, Japan, describes how in 1962 - during the
Cuban missile crisis - he and his colleagues were "told
to launch all the missiles" from their silos. Nuclear
armed, the missiles were aimed at both China and
Russia. A junior officer questioned this, and the order
was eventually rescinded - but only after they were
issued with service revolvers and ordered to shoot at
others in a missile crew if they did not "stand down".
At the height of the Cold War, the anti-communist
hysteria in the United States was such that US officials who
were on official business in China were accused of treason and
sacked. In 1957 - the year Shute wrote On the Beach -
no official in the State Department could speak the
language of the world's most populous nation.
Mandarin speakers were purged under strictures now
echoed in the Congressional bill that has just passed,
aimed at Russia. The bill was bipartisan. There is no
fundamental difference between Democrats and Republicans.
The terms "left" and "right" are meaningless. Most of
America's modern wars were started not by conservatives, but by
liberal Democrats.
When Obama left office, he presided over a
record seven wars, including America's longest war and
an unprecedented campaign of extrajudicial killings -
murder - by drones. In his last year, according to a
Council on Foreign Relations study, Obama, the
"reluctant liberal warrior", dropped 26,171 bombs -
three bombs every hour, 24 hours a day. Having
pledged to help "rid the world" of nuclear
weapons, the Nobel Peace Laureate built more
nuclear warheads than any president since the
Cold War. Trump is a wimp by comparison. It
was Obama with his secretary of state Hillary Clinton
at his side who destroyed Libya as a modern state and
launched the human stampede to Europe. At home,
immigration groups knew him as the "deporter-
in-chief". One of Obama's last acts as president was to
sign a bill that handed a record $618 billion to the
Pentagon, reflecting the soaring ascendancy of fascist
militarism in the governance of the United States. Trump
has endorsed this.
*****
10
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI] ISC-73

(2017) 2 LAW ISC-73 JUDGMENT

SUPREME COURT OF INDIA JAGDISH SINGH KHEHAR, CJI.
AT NEW DELHI
ORIGINAL CIVIL JURISDICTION
WRIT PETITION (C) No. 118 of 2016
Date of Judgment: Tuesday, 22 August 2017
Shayara Bano Petitioner
Versus
Union of India & Ors. Respondent(s)
With Suo Motu Writ (C) No. 2 of 2015
In Re: Muslim Womens Quest For Equality
versus Jamiat Ulma-I-Hind
Writ Petition(C) No. 288 of 2016
Aafreen Rehman versus Union of India and others
Writ Petition(C) No. 327 of 2016
Gulshan Parveen versus Union of India and others
Writ Petition(C) No. 665 of 2016
Ishrat Jahan versus Union of India and others
Writ Petition(C) No. 43 of 2017
Atiya Sabri versus Union of India and others
Citation: (2017) 2 LAW ISC-73
CORAM:
JAGDISH SINGH KHEHAR, CJI.
KURIAN JOSEPH, J.
ROHINTON FALI NARIMAN, J.
UDAY UMESH LALIT, J.
S. ABDUL NAZEER, J.
***
SHORT NOTES: A historic recent decision by a constitution
bench of five Judges of the Supreme Court of India on the
constitutionality and legal validity of the prevalent custom and
practice of talaq-e-biddat (triple talaq) in Islamic personal law
as it applies in our country. Though all the judges on the
Constitution Bench did feel the injustice and anachronism of
the custom and practice of triple talaq, the minority of two
the CJI and S. Abdul Nazeer, J. would only injunct the
operation of the custom for six months and would like the Part-1.
legislature (Parliament) to intervene and frame a more just The petitioners marital discord,
and equitable law in this regard. But the other three Judges
and the petitioners prayers:
found it highly arbitrary and violative of Article 14 of the
Constitution and accordingly set it aside. As such, ultimately, 1. The petitioner Shayara Bano, has approached
the Constitution Bench ORDERS setting aside of the custom and this Court, for assailing the divorce pronounced by her
practice of triple talaq. [IMS]
husband Rizwan Ahmad on 10.10.2015, wherein he
*** affirmed in the presence of witnesses saying that
I gave talak, talak, talak, hence like this I divorce from

Courtesy: Supreme Court of India at http://judis.nic.in/; you from my wife. From this date there is no
Para numbers and emphases in bold ours - IMS. relation of husband and wife. From today I am
Law Animated World, 31 August 2017
11
ISC-74 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
haraam, and I have become naamharram. In
future you are free for using your life . The
aforesaid divorce was pronounced before
Mohammed Yaseen (son of Abdul Majeed) and
Ayaaz Ahmad (son of Ityaz Hussain) the two
witnesses. The petitioner has sought a declaration,
that the talaq-e-biddat pronounced by her husband on
10.10.2015 be declared as void ab initio. It is also her
contention, that such a divorce which abruptly,
unilaterally and irrevocably terminates the ties of
matrimony, purportedly under Section 2 of the Muslim
Personal Law (Shariat) Application Act, 1937
(hereinafter referred to as, the Shariat Act), be declared
unconstitutional. During the course of hearing, it
was submitted, that the talaq-e-biddat (- triple
talaq), pronounced by her husband is not valid, as it is
not a part of Shariat (Muslim personal law). It is
also the petitioners case, that divorce of the instant
nature, cannot be treated as rule of decision under the
Shariat Act. It was also submitted, that the practice
of talaq-e-biddat is violative of the fundamental rights
guaranteed to citizens in India, under Articles 14, 15
and 21 of the Constitution. It is also the petitioners
case, that the practice of talaq-e-biddat cannot be
protected under the rights granted to religious
denominations (- or any sections thereof) under
Articles 25(1), 26(b) and 29 of the Constitution. It was
submitted, that the practice of talaq-e-biddat is
denounced internationally, and further, a large
number of Muslim theocratic countries, have forbidden
the practice of talaq-e-biddat, and as such, the same
cannot be considered sacrosanctal to the tenets of the
Muslim religion.
2. The counter affidavit filed by respondent no.5
the petitioners husband Rizwan Ahmad,
discloses, that the nikah (marriage) between the
petitioner and the respondent was solemnized on
11.04.2001, as per Shariat, at Allahabad. It was
submitted, that the petitioner Shayara Bano,
performed her matrimonial duties intermittently,
coming and leaving the matrimonial home from
time to time. The matrimonial relationship
between the parties resulted in the births of two
children, a son Mohammed Irfan (presently
about 13 years old) studying in the 7th standard,
and a daughter Umaira Naaz (presently about
11 years old) studying in the 4th standard, both at
Allahabad.
Law Animated World, 31 August 2017
12
(2017) 2 LAW
3. It is the case of the respondent husband, that
the petitioner-wife, left her matrimonial home on
9.4.2015 in the company of her father Iqbal
Ahmad and maternal uncle Raees Ahmed, as
well as children Mohammed Irfan and Umaira
Naaz, to live in her parental home. The respondent
claims, that he continued to visit the petitioner,
for giving her maintenance, and for enquiring
about her well being. When the husband met the
wife at her parental home in May and June 2015,
she refused to accompany him, and therefore,
refused to return to the matrimonial home. On
03.07.2015, Rizwan Ahmad, asked the father of
Shayara Bano to send her back to her matrimonial
home. He was informed by her father, after a few
days, that the petitioner was not inclined to live
with the respondent.
4. On 07.07.2015 the father of the petitioner,
brought the two children Mohammed Irfan and
Umaira Naaz to Allahabad. The husband submits,
that both the children have thereafter been in his
care and custody, at Allahabad. It is the assertion
of the husband, that the petitioners father had
given him the impression, that the petitioner
would be inclined to return to Allahabad,
consequent upon the husbands care and custody
of both children, at the matrimonial home.
5. It is claimed by the respondent-husband, that
he made another attempt to bring back the
petitioner-wife from her parental home on
09.08.2015, but Shayara Bano refused to
accompany him. It is submitted, that Rizwan
Ahmad was opposed in the above endeavour,
both by the petitioners father and her maternal
uncle.
6. Finding himself in the above predicament,
Rizwan Ahmad approached the Court of the
Principal Judge, Family Court at Allahabad, Uttar
Pradesh, by preferring Matrimonial Case No. 1144
of 2015 with a prayer for restitution of conjugal
rights. The petitioner-Shayara Bano, preferred
Transfer Petition (C) No. 1796 of 2015, under
Section 25 of the Code of Civil Procedure, 1908,
read with Order XXXVI-B of the Supreme Court
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
Rules, 1966, for the transfer of Matrimonial Case
No.1144 of 2015, filed by the respondent-
husband (seeking restitution of conjugal rights)
pending at Allahabad, Uttar Pradesh, to the
Principal Judge, Family Court, Kashipur,
Uttarakhand. In the above transfer petition, the
wife inter alia asserted as under:
2.3 The Petitioner who hails from Kashipur,
Uttarakhand is unemployed and her father
is a government employee. The only
source of income is the Petitioners father
who has a low income and despite this the
Petitioner during the time of marriage had
made arrangements beyond their capacity.
But soon after the marriage the
Respondent husband started demanding
for additional dowry and made
unreasonable demands for a car and cash.
2.4 The Petitioner who rightfully denied the
demands of the Respondent was tortured
and physically abused by the Respondent
and his family. She was often beaten and
kept hungry in a closed room for days. The
family of the Respondent administered her
with medicines that caused her memory to
fade. Due to the medicines she remained
unconscious for long hours.
*** *** *** *** ***
2.6 On 09.04.2015, the Respondent attempted
to kill the Petitioner by administering
medicines. These medicines on inspection
by a doctor on a later date were revealed to
cause loss of mental balance after regular
consumption. The Respondent brought the
Petitioner to Moradabad in a critical near-
death condition with the intention of
abandoning her if his dowry demands
were not fulfilled.
2.7. Thereafter on 10.04.2015 the Respondent
called the parents of the Petitioner to
Moradabad to take their daughter. The
parents of the Petitioner requested him to
come to Kashipur to meet and settle the
issue. He refused to go to Kashipur and
said that they should come and take their
daughter or fulfil his demands for more
dowry. He demanded Rs. 5,00,000/-
(Rupees Five Lakh Only).
13
ISC-75
2.8. Due to the unreasonable demands and the
torturous behaviour of the Respondent
husband, the Petitioners parents came to
Moradabad to take her and she was forced
to stay with her parents after 10.04.2015.
*** *** *** *** ***
2.13 The Respondent has filed for restitution
despite the fact that he himself had asked
the Petitioner wifes father to either fulfil
his dowry demands or to take the
Petitioner back to her maternal home and
in pursuance of the same had drugged the
Petitioner and had left her in Moradabad.
7. It is the case of the respondent-Rizwan Ahmad,
that in view of the above averments of the
petitioner-Shayara Bano, he felt that his wife was
not ready for reconciliation, and therefore, he
withdrew the suit (- for restitution of conjugal
rights), preferred by him at Allahabad, and
divorced the petitioner - Shayara Bano, by
serving upon her a talaq-nama (deed of divorce)
dated 10.10.2015. The text of the talak-nama, is
reproduced below:
DEED OF DIVORCE
Dated 10.10.2015
Madam,
Shayra Bano D/o Iqbal Ahmad.
Be it clear that I Rizwan Ahmed married with
you without any dowry to spend a peaceful and
happy marital life. After marriage you came in
my marital tie.
From the relation between you and me two issues
namely Irfan Ahmad aged about 13 years and
Kumari Humaira Naz @ Muskan aged about 11
years were born who are receiving education
living under my guardianship. With a great
sorrow it is being written that you, just after 6
months of marriage, with your unreasonable and
against Sharia acts started to pressurize me to
live separately from my parents. I, in order to
keep you happy and as per your wish started to
live at a rented house at Mohalla Ghausnagar and
while working as a clerk under a builder tried my
level best to spend peaceful marital life with you
and children.
However, you, in an unreasonable manner and
against Shariah continued to create problem and
Law Animated World, 31 August 2017
ISC-76 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
quarrel in house on regular basis. When you
were asked the reason in a very affectionate
manner about two years ago, you had put a
condition that now when your other relatives are
not with you in such situation come with me to
my parents house and live further life there. I
being a person from a self-respecting family
refused to live as son in law living at in-laws
house. Then you, under the influence of your
parents, continued to fake various mental and
physical pains and continued to behave life a
mental patient. When tried to know the reason
then you after much difficulty told that you had
met with a serious accident before marriage. I for
the sake of my children and you tolerated that. I
became despondent from your persistent demand
of living at your parental house and your being
of stubborn nature, your giving threat of
implicating in false case and threat of inflicting
injury to yourself and of consuming poison and
implicating me in false case on that count given
on daily basis and complained about the same to
your paternal uncle but your father replied that
whenever you do such acts sleeping pills be
given to you. I found this very baffling, upon
asking your father told that since the time before
your marriage you had been under treatment for
mental ailment. I ignored such a big incident and
the information received about you. Resultantly
you became audacious in your behavior.
When reported all these things to your father,
your father told me that this is the time of
childrens holidays you be sent to your parents
house with children. You take them back after
the atmosphere is changed and summer vacations
are over. Acting on the words of your father I left
you at your parents place along with children
and while going, you took away gold jewelry
given by me including a gold neck set of two
Tolas, gold bangles of one and a half Tola, two
gold rings of half Tola and cash Rs.15,000/-. I
continued to visit you enquiring your wellbeing
and giving you expenses from time to time. That
in the month of May and June when I tried to
bring you then you gave excuses and pleas. I
continued to make repeated attempts between
May to July to bring you back but ultimately on
03.07.2015 you clearly refused to return and on
07.07.2015 you father brought both the children
at Allahabad Railway Station and left them there
Law Animated World, 31 August 2017
14
(2017) 2 LAW
informing me and gave threat on phone that
either you will come here and live or shall
perform the role of father and mother of both the
children. In this regard when I enquired from you
then you also refused to return in clear words and
said to the extent that you raise the children and
forget me or separate from me to bring another
mother for the children. On this also I could not
satisfy myself, whereupon I filed a suit for
bringing you back. After receiving notice, out of
the blues you threatened me on phone that I will
soon file a case and will tell you how a son in
law is kept at the in-laws house. Being fed up
with your unreasonable conduct and against
Sharaih acts I found it better to separate from
you, therefore, I on 8.10.2015 applied for
dismissal of the suit for bringing you back and
now I, in my full senses and in the presence of
marginal witnesses, release you from my
marriage in the light of Shariah through tripel
talaq by uttering I give talaq, I give talaq, I
give talaq. From today the relation of husband
and wife forever ends between you and me. After
today you are unlawful for me and I have
become unlawful for you. You are free to spend
your life the way you want.
Note: So far is the question of your dower
(Mehr) and expenses of waiting period (iddat)
that I am paying through demand draft
no.096976 dated 06.10.2015 drawn at Allahabad
Bank, Karaili, Allahabad Branch, which
comprises a sum of Rs. 10,151 towards payment
of dower and Rs. 5,500/- towards the expenses of
waiting period which I am sending along with
this written deed of divorce, you kindly take paid
to accept the same.
Dated 10.10.2015
Witnesses:-
1. Mohd. Yaseen, s/o Abdul Majid, R/o J.K.
Colony, Ghaus Nagar, Karaili, Allahabad;
2. Ayaz Ahmed S/o Imtiyaz Hussain R/o G.T.B.
Nagar, Karaili Scheme, Allahabad
Sd/ Hindi Rizwan Ahmed
(Rizwan Ahmed)
S/o Iqbal Ahmed
Ghaus Nagar, Karaili, Allahabad
8. Based on the above, the case of the respondent-
husband is, that he had pronounced talaq in
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
consonance with the prevalent and valid mode of
dissolution of Muslim marriages. It was
submitted, that the pronouncement of divorce by
him, fulfils all the requirements of a valid
divorce, under the Hanafi sect of Sunni Muslims,
and is in consonance with Shariat (Muslim
personal law).
9. It is also the submission of the respondent-
husband, that the present writ petition filed by the
petitioner-wife under Article 32 of the
Constitution of India, is not maintainable, as the
questions raised in the petition are not justiciable
under Article 32 of the Constitution.
10. Keeping in view the factual aspect in the
present case, as also, the complicated questions
that arise for consideration in this case (and, in
the other connected cases), at the very outset, it was
decided to limit the instant consideration, to talaq-e-
biddat triple talaq. Other questions raised in the
connected writ petitions, such as, polygamy and
halala (- and other allied matters), would be
dealt with separately. The determination of the
present controversy, may however, coincidentally
render an answer even to the connected issues.
Part-2.
The practiced modes of talaq amongst Muslims:
11. Since the issue under consideration is the
dissolution of marriage by talaq, under the Islamic law
of divorce, it is imperative, to understand the concept
of talaq. In this behalf, it is relevant to mention,
that under the Islamic law, divorce is classified into
three categories. Talaq understood simply, is a means of
divorce, at the instance of the husband. Khula, is
another mode of divorce, this divorce is at the
instance of the wife. The third category of divorce is
mubaraat divorce by mutual consent.
12. Talaq, namely, divorce at the instance of the
husband, is also of three kinds talaq-e-ahsan,
talaq-e-hasan and talaq-e-biddat. The petitioners
Whatever be the nuances of Islamic law regarding divorce
and the wrongs of triple talaq, in the facts and
circumstances of the case, I feel the husband was fully
justified in divorcing this cantankerous and unwilling, if
not unfaithful, wife. - IMS.
ISC-77
contention before this Court is, that talaq-e-
ahsan, and talaq-e-hasan are both approved by the
Quran and hadith. Talaq-e-ahsan, is considered
as the most reasonable form of divorce, whereas,
talaq-e-hasan is also considered as reasonable. It
was submitted, that talaq-e-biddat is neither
recognized by the Quran nor by hadith, and as
such, is to be considered as sacrosanctal to
Muslim religion. The controversy which has arisen
for consideration before this Court, is with reference
to talaq-e-biddat.
13. It is necessary for the determination of the
present controversy, to understand the
parameters, and the nature of the different kinds
of talaq. Talaq-e-ahsan is a single
pronouncement of talaq by the husband,
followed by a period of abstinence. The period of
abstinence is described as iddat. The duration of
the iddat is ninety days or three menstrual
cycles (in case, where the wife is menstruating).
Alternatively, the period of iddat is of three
lunar months (in case, the wife is not
menstruating). If the couple resumes cohabitation or
intimacy, within the period of iddat, the
pronouncement of divorce is treated as having been
revoked. Therefore, talaq-e-ahsan is revocable.
Conversely, if there is no resumption of cohabitation
or intimacy, during the period of iddat, then the
divorce becomes final and irrevocable, after the expiry
of the iddat period. It is considered irrevocable
because, the couple is forbidden to resume marital
relationship thereafter, unless they contract a fresh
nikah (- marriage), with a fresh mahr. Mahr is a
mandatory payment, in the form of money or
possessions, paid or promised to be paid, by the groom
or by the grooms father, to the bride, at the time of
*
marriage, which legally becomes her property.
However, on the third pronouncement of such a
talaq, the couple cannot remarry, unless the wife first
marries someone else, and only after her marriage with
other person has been dissolved (either through
talaq - divorce, or death), can the couple
remarry. Amongst Muslims, talaq-e-ahsan is
regarded as the most proper form of divorce.
*
akin to brides price-
 (kanyaaSulk).
Law Animated World, 31 August 2017
15
ISC-78 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
14. Talaq-e-hasan is pronounced in the same
manner, as talaq-e-ahsan. Herein, in place of a single
pronouncement, there are three successive
pronouncements. After the first pronouncement of
divorce, if there is resumption of cohabitation
within a period of one month, the pronouncement
of divorce is treated as having been revoked. The
same procedure is mandated to be followed, after
the expiry of the first month (during which
marital ties have not been resumed). Talaq is
pronounced again. After the second
pronouncement of talaq, if there is resumption
of cohabitation within a period of one month, the
pronouncement of divorce is treated as having
been revoked. It is significant to note, that the
first and the second pronouncements may be
revoked by the husband. If he does so, either
expressly or by resuming conjugal relations, talaq
pronounced by the husband becomes ineffective, as if no
talaq had ever been expressed. If the third talaq is
pronounced, it becomes irrevocable. Therefore, if no
revocation is made after the first and the second
declaration, and the husband makes the third
pronouncement, in the third tuhr (period of
purity), as soon as the third declaration is made,
the talaq becomes irrevocable, and the marriage
stands dissolved, whereafter, the wife has to
observe the required iddat (the period after
divorce, during which a woman cannot remarry.
Its purpose is to ensure, that the male parent of
any offspring is clearly identified). And after the
third iddat, the husband and wife cannot
remarry, unless the wife first marries someone
else, and only after her marriage with another
person has been dissolved (either through divorce
or death), can the couple remarry. The distinction
between talaq-e-ashan and talaq-e-hasan is,
that in the former there is a single pronouncement
of talaq followed by abstinence during the
period of iddat, whereas, in the latter there are
three pronouncements of talaq, interspersed
with abstinence. As against talaq-e-ahsan,
which is regarded as the most proper form of
divorce, Muslims regard talaq-e-hasan only as the
proper form of divorce.
Law Animated World, 31 August 2017
16
(2017) 2 LAW
15. The third kind of talaq is talaq-e-biddat.
This is effected by one definitive pronouncement of
talaq such as, I talaq you irrevocably or three
simultaneous pronouncements, like talaq, talaq, talaq,
uttered at the same time, simultaneously. In talaq-e-
biddat, divorce is effective forthwith. The instant
talaq, unlike the other two categories of talaq is
irrevocable at the very moment it is pronounced. Even
amongst Muslims talaq-e-biddat, is considered
irregular.
16. According to the petitioner, there is no mention
of talaq-e-biddat in the Quran. It was however
acknowledged, that the practice of talaq-e-
biddat can be traced to the second century, after
the advent of Islam. It was submitted, that talaq-e-
biddat is recognized only by a few Sunni schools. Most
prominently, by the Hanafi sect of Sunni
Muslims. It was however emphasized, that even
those schools that recognized talaq-e-biddat described
it, as a sinful form of divorce. It is acknowledged,
that this form of divorce, has been described as
bad in theology, but good in law. We have recorded
the instant position at this juncture, because
learned counsel for the rival parties, uniformly
acknowledge the same.
Part-3.
The Holy Quran with reference to talaq:
17. Muslims believe that the Quran was revealed
by God to the Prophet Muhammad over a period
of about 23 years, beginning from 22.12.609,
when Muhammad was 40 years old. The
revelation continued upto the year 632 the year
of his death. Shortly after Muhammads death,
the Quran was completed by his companions,
who had either written it down, or had
memorized parts of it. These compilations had
differences of perception. Therefore, Caliph
Usman - the third, in the line of caliphs recorded
a standard version of the Quran, now known as
Usmans codex. This codex is generally treated, as the
original rendering of the Quran.
18. During the course of hearing, references to
the Quran were made from The Holy Quran:
Text Translation and Commentary by Abdullah
Yusuf Ali, (published by Kitab Bhawan, New
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
Delhi, 14th edition, 2016). Learned counsel
representing the rival parties commended, that the
text and translation in this book, being the most
reliable, could safely be relied upon. The text and
the inferences are therefore drawn from the above
publication.
(i) The Quran is divided into suras (chapters).
Each sura contains verses, which are arranged
in sections. Since our determination is limited to
the validity of talaq-e-biddat, within the
framework of the Muslim personal law
Shariat, we shall only make a reference to such
verses from the Quran, as would be relevant for
our above determination. In this behalf, reference
may first be made to verses 222 and 223
contained in section 28 of sura II. The same
are reproduced below:
222. They ask thee
Concerning womens courses.
Say: They are A hurt and a pollution:
So keep away from women
In their courses, and do not
Approach them until
They are clean.
But when they have
Purified themselves,
Ye may approach them
In any manner, time, or place
Ordained for you by God.
For God loves those
Who turn to Him constantly
And he loves those
Who keep themselves pure and clean.
223.Your wives are
As a tilth unto you;
So approach your tilth
When or how ye will;
But do some good act
For your souls beforehand;
And fear God,
And know that ye are
To meet Him (in the Hereafter),
And give (these) good tidlings
To those who believe.
The above verses have been extracted by us for
the reason, that the Quran mandates respectability at
the hands of men towards women. Verse 222 has
17
ISC-79
been interpreted to mean, that matters of physical
cleanliness and purity should be looked at, not only
from a mans point of view, but also from the womans
point of view. The verse mandates, that if there is
danger of hurt to the woman, she should have
every consideration. The Quran records, that the
action, of men towards women are often worse. It
mandates, that the same should be better with
reference to the womans health, both mental and
spiritual. Verse 223 postulates, that sex is as
solemn, as any other aspect of life. It is compared to a
husband-mans tilth, to illustratively depict, that
in the same manner as a husband-man sows his
fields, in order to reap a harvest, by choosing his
own time and mode of cultivation, by ensuring
that he does not sow out of season, or cultivate in
a manner which will injure or exhaust the soil. So
also, in the relationship towards a wife, verse
223 exalts the husband, to be wise and
considerate towards her, and treat her in such
manner as will neither injure nor exhaust her.
Verses 222 and 223 exhort the husband, to extend
every kind of mutual consideration, as is required
towards a wife.
(ii) Reference is also necessary to verses 224 to
228 contained in section 28 of sura II of the
Quran. The same are extracted below:
224. And make not
Gods (name) an excuse
In your oaths against
Doing good, or acting rightly,
Or making peace
Between persons;
For God is one
Who heareth and knoweth
All things.
225. God will not
Call you to account
For thoughtlessness
In your oaths,
But for the intention
In your hearts;
And He is
Oft-forgiving
Most Forbearing.
226. For those who take
An oath for abstention
Law Animated World, 31 August 2017
ISC-80 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
From their wives,
A waiting for four months
Is ordained;
If then they return,
God is Oft-forgiving,
Most Merciful.
227. But if their intention
Is firm for divorce,
God heareth
And knoweth all things.
228. Divorced women
Shall wait concerning themselves
For three monthly periods.
Nor is it lawful for them
To hide what God
Hath created in their wombs,
If they have faith
In God and the Last Day.
And their husbands
Have the better right
To take them back
In that period, if
They wish for reconciliation.
And women shall have rights
Similar to the rights
Against them, according
To what is equitable;
But men have a degree
(Of advantage) over them
And God is Exalted in Power
Wise.
Verse 224, has a reference to many special
kinds of oaths practised amongst Arabs. Some of
the oaths even related to matters concerning sex.
These oaths caused misunderstanding, alienation,
division or separation between husbands and
wives. Verses 224 to 227 are pointed references
to such oaths. Through verse 224, the Quran
ordains in general terms, that no one should make
an oath in the name of God, as an excuse for
not doing the right thing, or for refraining from
doing something which will bring people
together. The text relied upon suggests, that
verses 225 to 227 should be read together with
verse 224. Verse 224 is general and leads up
to the next three verses. These verses are in
the context of existing customs, which were very
unfair to married women. Illustratively, it was
Law Animated World, 31 August 2017
18
(2017) 2 LAW
sought to be explained, that in a fit of anger or
caprice, sometimes a husband would take an oath
in the name of God, not to approach his wife.
This act of the husband, it was sought to be
explained, deprives the wife of her conjugal
rights, and yet, keeps her tied to the husand
indefinitely, inasmuch as, she has no right to
remarry. Even if this act of the husband, was
protested by the wife, the explanation provided is,
that the husband was bound by the oath in the
name of God. Through the above verses, the
Quran disapproves thoughtless oaths, and at the
same time, insists on a proper solemn and
conscious/purposeful oath, being scrupulously
observed. The above verses caution husbands to
understand, that an oath in the name of God was
not a valid excuse since God looks at intention,
and not mere thoughtless words. It is in these
circumstances, that verses 226 and 227
postulate, that the husband and wife in a difficult
relationship, are allowed a period of four months, to
determine whether an adjustment is possible. Even
though reconciliation is recommended, but if the
couple is against reconciliation, the Quran ordains, that
it is unfair to keep the wife tied to her husband
indefinitely. The Quran accordingly suggests, that
in such a situation, divorce is the only fair and
equitable course. All the same it is recognized,
that divorce is the most hateful action, in the sight
of the God.
(iii) Verses 229 to 231 contained in section 29
of sura II, and verses 232 and 233 included
in section 30 of sura II, as also verse 237
contained in section 31 in sura II, are relevant on
the issue of divorce. The same are extracted below:
229. A divorce is only
Permissible twice: after that,
The parties should either hold
Together on equitable terms,
Or separate with kindness.
It is not lawful for you,
(Men), to take back
Any of your gifts (from your wives),
Except when both parties
Fear that they would be
Unable to keep the limits
Ordained by God.
(Go to p. 67)
(2017) 2 LAW Paroline v. United States, Et al. [US-SC]
(2017) 2 LAW F-65 (US-SC)
SUPREME COURT OF
THE UNITED STATES
AT WASHINGTON
No. 12-8561
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
Wednesday, 23 APRIL 2014
DOYLE RANDALL PAROLINE Petitioner
versus
UNITED STATES, ET AL Respondents.
Citation: 572U.S. __ (2014) = (2017) 2 LAW F-65
***
(Slip Opinion) October Term, 2013
Syllabus
PAROLINE v. UNITED STATES, ET AL.
CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 12-8561. Argued January 22, 2014 -
Decided April 23, 2014
The respondent victim in this case was sexually
abused as a young girl in order to produce child
pornography. When she was 17, she learned that
images of her abuse were being trafficked on the
Internet, in effect repeating the original wrongs, for
she knew that her humiliation and hurt would be
renewed well into the future as thousands of
additional wrongdoers witnessed those crimes.
Petitioner Paroline pleaded guilty in federal court to
possessing images of child pornography, which
included two of the victim, in violation of 18 U.S.C.
Courtesy: www.supremecourt.gov. The syllabus constitutes
no part of the Courts opinion but is prepared by the
Reporter of Decisions for the convenience of the reader.
Then, this opinion is subject to formal revision before
publication in the preliminary print of the United States
Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington,
D.C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary
print goes to press. Paragraph numbers and emphases in bold
ours - IMS.
19
F-65
2252. The victim then sought restitution under
2259, requesting nearly $3 million in lost income
and about $500,000 in future treatment and
counseling costs. The District Court declined to award
restitution, concluding that the Government had not met
its burden of proving what losses, if any, were proximately
caused by Parolines offense. The victim sought a writ
of mandamus, asking the Fifth Circuit to direct the
District Court to order Paroline to pay restitution.
Granting the writ on rehearing en banc, the Fifth
Circuit held, inter alia, that 2259 did not limit restitution
to losses proximately caused by the defendant, and that
each defendant who possessed the victims imagesshould be
made liable for the victims entire losses from the trade in
her images.
Held:
1. Restitution is proper under 2259 only to the extent the
defendants offense proximately caused a victims losses.
This provision has a broad restitutionary purpose,
stating that a district court shall order restitution
for any offense under Chapter 110 of Title 18,
such as Parolines possession offense; requiring
district courts to order defendants to pay the victim
the full amount of the victims losses as
determined by the court, 2259(b)(1); and
expressly making issuance of a restitution order
mandatory, 2259(b)(4)(A). The Government has
the burden of demonstrating the amount of
the[victims] loss. 3664(e).
To say one event proximately caused another means,
first, that theformer event caused the latter, i.e., actual
cause or cause in fact; and second, that it is a proximate
cause, i.e., it has a sufficient connection to the result. The
concept of proximate causation is applicable in both
criminal and tort law, and the analysis is parallel in
many instances. Section 2259(c) defines a victim as
the individual harmedas a result of a commission
of a crime under this chapter. The words as a
result of plainly suggest causation, and the referent
of a crime is the offense of conviction. The full
amount of the victims losses, 2259(b)(1),
includes any costs incurred by the victim for
sixenumerated categories of expense, 2259(b)(3).
The reference to costs incurred by the victim is
most naturally understood as costsarising as a
result of the offense of conviction, i.e., the
defendants conduct. And the last of the six
enumerated categories for other losses suffered
Law Animated World, 31 August 2017
F-66 Paroline v. United States, Et al. [US-SC]
as a proximate result of the offense,
2259(b)(3)(F) clearly states that the causal
requirement is one of proximate cause. This reading is
supported by the canon of construction that,
[w]hen several words are followed by a clause
which is applicable as much to the first and other
words as to the last, the natural construction of the
language demands that the clause be read
asapplicable to all. Porto Rico Railway, Light &
Power Co. v. Mor, 253 U.S. 345, 348. The reading
also presents a commonsense way to impose
sensible limitations on claims for attenuated costs.
Pp. 511.
2. Applying the statutes causation requirements in
this case, victims should be compensated and
defendants should be held to account for the impact
of their conduct on those victims, but defendants
should only be made liable for the consequences and
gravity of their own conduct, not the conduct of others.
Pp. 1125.
(a) A somewhat atypical causal process underlies the
losses here. It may be simple to prove aggregate losses, i.e.,
general losses, stemming from the ongoing traffic in the
victims images, but the question for 2259 purposes is
how much of these general losses werethe proximate result
of an individual defendants offense. Here, the victims
costs of treatment and lost income resulting from the
traumaof knowing that images of her abuse are being
viewed over and over are direct and foreseeable
results of child-pornography crimes, provided the
prerequisite of factual causation is satisfied. The
primary problem, then, is the proper standard of causation in
fact. Pp. 1112.
(b) A showing of but-for causation is not the proper standard
here, for it is not possible to prove that the victims
losses would be less but for one possessors individual
role in the large, loosely connected network through
which her images circulate. The victim and the
Government urge the Court to read 2259 to require a less
restrictive causation standard in child-pornography cases like
this. They endorse the theory of aggregate causation,
one formulation of which finds factual causation
satisfied where a wrongdoers conduct, though alone
insufficient to cause the plaintiff s harm, is,
when combined with conduct by other persons,
more than sufficient to cause the harm. 1
Restatement (Third) of Torts: Liability for Physical
and Emotional Harm 27, Comment f. Tort law teaches
that such alternative causal tests, though a kind of legal
Law Animated World, 31 August 2017
(2017) 2 LAW
fiction, may be necessary to vindicate the laws purposes, for
it would be anomalous to turn away a person harmed by the
combined acts of many wrongdoers simply because none of
those wrongdoers alone caused the harm, and nonsensical to
adopt a rule whereby individuals hurt by the combined
wrongful acts of many would have no redress, while those hurt
by the acts of one person alone would. These are sound
principles. Taken too far, however, such alternative causal
standards would treat each possessor as the cause in fact of all
the trauma and attendant losses incurred as a result of all
the ongoing traffic in the victims images. Aggregate
causation logic should not be adopted in an incautious manner
in the context of criminal restitution, which differs from
tort law in numerous respects. Parolines contribution to
the causal process underlying the victims losses was very
minor, both compared to the combined acts of all other
relevant offenders and compared to the contributions
of other individual offenders, particularly distributors
and the initial producer of the child pornography.
Congress gave no indication that it intended the statute to
be applied in an expansive manner so starkly contrary to the
principle that restitution should reflect the consequences of
the defendants own conduct. The victim claims that
holding each possessor liable for her entire losses
would be fair and practical in part because offenders
can seek contribution from one another, but there is no
general federal right to contribution and no specific
statutory authorization for contribution here. Her severe
approach could also raise questions under the Excessive Fines
Clause of the Eighth Amendment. Pp. 1219.
(c) While the victims expansive reading must be rejected,
that does not mean the broader principles underlying
aggregate causation theories are irrelevant to determining the
proper outcome in cases like this. The cause of the victims
general losses is the trade in her images, and Paroline is a
part of that cause. Just as it undermines the purposes
of tort law to turn away plaintiffs harmed by several
wrongdoers, it would undermine 2259s purposes to turn
away victims in cases like this. With respect to the statutes
remedial purpose, there is no question that it would
produce anomalous results to say that no restitution is
appropriate in these circumstances, for harms of the
kind the victim endured here are a major reason why child
pornography is outlawed. The unlawful conduct of everyone
who reproduces, distributes, or possesses images of the
victims abuse including Paroline plays a part in
sustaining and aggravating this tragedy. And there is no
doubt Congress wanted restitution for such victims. Denying
restitution would also be at odds with2259s
penological purposes, which include the need to
impress upon offenders that their conduct produces
20
(2017) 2 LAW Paroline v. United States, Et al. [US-SC: Court Opinion]
concrete and devastating harms for real, identifiable
victims. Thus, where it can be shown both that a
defendant possessed a victims images and that a
victimhas outstanding losses caused by the continuing
traffic in her images but where it is impossible to trace
a particular amount of those losses to the individual
defendant utilizing a more traditional causal inquiry, a
court should order restitution in an amount that comports
with the defendants relative role in the causal process
underlyingthe victims general losses.
District courts should use discretion and sound judgment
in determining the proper amount of restitution. A variety
of factors may serve as guideposts. Courts might, as a
start, determine the amount of the victims losses
caused by the continuing traffic in the victimsimages,
and then base an award on factors bearing on the
relative causal significance of the defendants conduct
in producing those losses. The victim finds this
approach untenable because her losses are
indivisible, but the Court is required to define a causal
standard that effects the statutes purposes, not to apply tort-
law concepts in a mechanical way in the criminal
restitution context. She also argues she will be
consigned to piecemeal restitution that may never
lead to full recovery, but Congress has not promised
victims full and swift restitution at the cost of holding a
defendant liable for an amount drastically out of proportion to
his individual causal relation to those losses. Furthermore,
this approach better effects the need to impress upon
defendants that their acts are not irrelevant or
victimless. Pp. 19-25.
(d) Though this approach is not without difficulties,
courts can only do their best to apply the statute as written in
a workable manner, faithful to the competing principles at
stake: that victims should be compensated and that
defendants should be held to account for the impact of
their own conduct, not the conduct of others. District
courts, which routinely exercise wide discretion both
in sentencing generally and in fashioning restitution
orders, should be able to applythe causal standard
defined here without further detailed guidance. P. 25.
701 F. 3d 749, vacated and remanded.
KENNEDY, J., delivered the opinion of the Court,
in which GINSBURG, BREYER, ALITO, and
KAGAN, JJ., joined. ROBERTS, C. J., filed a
dissenting opinion, in which SCALIA and
THOMAS, JJ., joined. SOTOMAYOR, J., filed a
dissenting opinion.
***
21
F-67
SUPREME COURT OF THE
UNITED STATES
No. 128561
DOYLE RANDALL PAROLINE, PETITIONER
v. UNITED STATES, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
[April 23, 2014]
JUSTICE KENNEDY delivered the opinion
of the Court.
1. This case presents the question of how to
determine the amount of restitution a possessor of child
pornography must pay to the victim whose childhood
abuse appears inthe pornographic materials possessed.
The relevant statutory provisions are set forth at
18 U.S.C. 2259. Enacted as a component of the
Violence Against Women Act of 1994, 2259 requires
district courts to award restitution for certain federal
criminal offenses, including child pornography
possession.
2. Petitioner Doyle Randall Paroline pleaded guilty to
such an offense. He admitted to possessing between
150 and 300 images of child pornography, which
included two that depicted the sexual exploitation
of a young girl, now a young woman, who goes
by the pseudonym Amy for this litigation. The
question is what causal relationship must be established
between the defendants conduct and a victims losses
for purposes of determining the right to, and the amount
of, restitution under 2259.
I
3. Three decades ago, this Court observed that
the exploitive use of children in the production of
pornography has become a serious national problem.
New York v. Ferber, 458 U.S. 747, 749 (1982).
The demand for child pornography harms
children in part because it drives production,
which involves child abuse. The harms caused by
child pornography, however, are still more
extensive because child pornography is a permanent
record of the depicted childs abuse, and the harm to the
child is exacerbated by [its] circulation.Id.,at
759.Because child pornography is now traded
with ease on the Internet, the number of still
images and videos memorializing the sexual
Law Animated World, 31 August 2017
F-68 Paroline v. United States, Et al. [US-SC: Court Opinion]
assault and other sexual exploitation of children,
many very young in age, has grown
exponentially. United States Sentencing
Commn, P. Saris et al., Federal Child
Pornography Offenses 3 (2012) (hereinafter
Sentencing Commn Report).
4. One person whose story illustrates the
devastating harm caused by child pornography is
the respondent victim in this case. When she was
eight and nine yearsold, she was sexually abused by her
uncle in order to produce child pornography. Her uncle
was prosecuted, required to pay about $6,000 in
restitution, and sentenced to a lengthy prison term. The
victim underwent an initial course of therapy
beginning in 1998 and continuing into 1999. By
the end of this period, her therapists notes
reported that she was back to normal; her
involvement in dance and other age-appropriate
activities, and the support of her family, justified
an optimistic assessment. App. 7071. Her
functioning appeared to decline in her teenage
years, however; and a major blow to her recovery
came when, at the age of 17, she learned that images of
her abuse were being trafficked on the Internet. Id., at
71. The digital images were available nationwide
and no doubt worldwide. Though the exact scale of
the trade in her images is unknown, the possessors to
date easily number in the thousands. The knowledge
that her images were circulated far and wide
renewed the victims trauma and made it difficult
for her to recover from her abuse. As she
explained in a victim impact statement submitted
to the District Court in this case:
Every day of my life I live in constant fear that
someone will see my pictures and recognize me
and that I will be humiliated all over again. It
hurts me to know someone is looking at them
at me when I was just a little girl being abused
for the camera. I did not choose to be there, but
now I am there forever in pictures that people are
using to do sick things. I want it all erased. I
want it all stopped. But I am powerlessto stop it
just like I was powerless to stop my uncle.
My life and my feelings are worse now because
the crime has never really stopped and will never
really stop. Its like I am being abused over and
over and over again. Id., at 6061.
Law Animated World, 31 August 2017
(2017) 2 LAW
The victim says in her statement that her fear and
trauma make it difficult for her to trust others or to feel
that she has control over what happens to her. Id., at
63.
5. The full extent of this victims suffering is hard
to grasp. Her abuser took away her childhood, her self-
conception of her innocence, and her freedom from the
kind of nightmares and memories that most others will
never know. These crimes were compounded by the
distribution of images of her abusers horrific acts,
which meant the wrongs inflicted upon her were in
effect repeated; for she knew her humiliation and
hurt were and would be renewed into the future
as an ever-increasing number of wrongdoers
witnessed the crimes committed against her.
6. Petitioner Paroline is one of the individuals who
possessed this victims images. In 2009, he pleaded
guilty in federal court to one count of possession of
material involving the sexual exploitation of children in
violation of 18 U.S.C. 2252. 672 F. Supp. 2d 781,
783 (ED Tex. 2009). Paroline admitted to
knowing possession of between 150 and 300
images of child pornography, two of which
depicted the respondent victim. Ibid. The victim
sought restitution under 2259, asking for close
to $3.4 million, consistingof nearly $3 million in
lost income and about $500,000 in future
treatment and counseling costs. App. 52, 104. She
also sought attorneys fees and costs. 672 F.
Supp. 2d, at 783. The parties submitted
competing expert reports. They stipulated that the
victim did not know who Paroline was and that none of
her claimed losses flowed from any specific knowledge
about him or his offense conduct. Id., at 792, and n.
11; App. 230.
7. After briefing and hearings, the District Court
declined to award restitution. 672 F. Supp. 2d, at
793. The District Court observed that everyone
involved with child pornography from the abusers and
producers to the end users and possessors
contribute[s] to [the victims] ongoing harm. Id., at
792. But it concluded that the Government had the
burden of proving the amount of the victims losses
directly produced by Paroline that would not have
occurred without his possession of her images. Id., at
791. The District Court found that, under this
standard, the Government had failed to meet its
22
(2017) 2 LAW Paroline v. United States, Et al. [US-SC: Court Opinion]
burden of proving what losses, if any, were proximately
caused by Parolines offense. It thus held that an
award of restitution is not appropriate in this case. Id.,
at 793.
8. The victim sought a writ of mandamus, asking
the United States Court of Appeals for the Fifth
Circuit to direct the District Court to order
Paroline to pay restitution in the amount
requested. In re Amy, 591 F. 3d 792, 793 (2009).
The Court of Appeals denied relief. Id., at 795. The
victim sought rehearing. Her rehearing request was
granted, as was her petition for a writ of mandamus. In
re Amy Unknown, 636 F. 3d 190, 201 (2011).
9. The Fifth Circuit reheard the case en banc
along with another case, in which the defendant,
Michael Wright, had raised similar issues in
appealing an order of restitution under 2259, see
United States v. Wright, 639 F. 3d 679, 681
(2011) (per curiam). As relevant, the Court of
Appeals set out to determine the level of proof required
to award restitution to victims in cases like this. It held
that 2259 did not limit restitution to losses
proximately caused by the defendant, and each
defendant who possessed the victims images should be
made liable for the victims entire losses from the trade
in her images, even though other offenders played a role
in causing those losses. In re Amy Unknown, 701 F.
3d 749, 772774 (2012) (en banc).
10. Paroline sought review here. Certiorari was
granted to resolve a conflict in the Courts of Appeals
over the proper causation inquiry for purposes of
determining the entitlement to and amount of
restitution under 2259. 570 U.S. ___ (2013). For
the reasons set forth, the decision of the Court of
Appeals is vacated.
II
11. Title 18 U.S.C. 2259(a) provides that a
district court shall order restitution for any
offense under Chapter 110 of Title 18, which
covers a number of offenses involving the sexual
exploitation of children and child pornography in
particular. Paroline was convicted of knowingly
possessing child pornography under 2252, a
Chapter 110 offense.
12. Section 2259 states a broad restitutionary purpose:
It requires district courts to order defendants to pay
23
F-69
the victim the full amount of the victims losses as
determined by the court, 2259(b)(1), and
expressly states that [t]he issuance of a restitution
order under this section is mandatory,
2259(b)(4)(A). Section 2259(b)(2) provides that
[a]n order of restitution under this section shall
beissued and enforced in accordance with section
3664, which in turn provides in relevant part that
[t]he burden of demonstrating the amount of the loss
sustained by a victim as a result of the offense shall be
on the attorney for the Government, 3664(e).
13. The threshold question the Court faces is whether
2259 limits restitution to those losses proximately
caused by the defendants offense conduct. The Fifth
Circuit held that it does not, contrary to the holdings of
other Courts of Appeals to have addressed the question.
Compare, e.g., 701 F. 3d, at 752 (no general
proximate-cause requirement applies under
2259), with United States v. Rogers, 714 F. 3d
82, 89 (CA1 2013) (general proximate-cause re-
quirement applies under 2259); United States v.
Benoit, 713 F. 3d 1, 20 (CA10 2013) (same);
United States v. Fast, 709 F. 3d 712, 721722
(CA8 2013) (same); United States v. Laraneta,
700 F. 3d 983, 989990 (CA7 2012) (same);
United States v. Burgess, 684 F. 3d 445, 456457
(CA4 2012) (same); United States v. Evers, 669
F. 3d 645, 659 (CA6 2012) (same); United States
v. Aumais, 656 F. 3d 147, 153 (CA2 2011)
(same); United States v. Kennedy, 643 F. 3d
1251, 1261 (CA9 2011) (same); United States v.
Monzel, 641 F. 3d 528, 535 (CADC 2011)
(same); United States v. McDaniel, 631 F. 3d
1204, 12081209 (CA11 2011) (same).
14. As a general matter, to say one event proximately
caused another is a way of making two separate but
related assertions. First, it means the former event
caused the latter. This is known as actual cause or
cause in fact. The concept of actual cause is not a
metaphysical one but an ordinary, matter-of-fact
inquiry into the existence of a causal relation as
laypeople would view it. 4 F. Harper, F. James, &
O. Gray, Torts 20.2, p. 100 (3d ed. 2007).
15. Every event has many causes, however, see ibid.,
and only some of them are proximate, as the law uses
that term. So to say that one event was a proximate
Law Animated World, 31 August 2017
F-70 Paroline v. United States, Et al. [US-SC: Court Opinion]
cause of another means that it was not just any cause,
but one with a sufficient connection to the result. The
idea of proximate cause, as distinct from actual cause or
cause in fact, defies easy summary. It is a flexible
concept, Bridge v. Phoenix Bond & Indemnity
Co., 553 U.S. 639, 654 (2008), that generally
refers to the basic requirement that there must
be some direct relation between the injury
assertedand the injurious conduct alleged, CSX
Transp., Inc. v. McBride, 564 U.S. ___, ___
(2011) (ROBERTS, C. J., dissenting) (slip op., at
3) (quoting Holmes v. Securities Investor
Protection Corporation, 503 U. S. 258, 268
(1992)). The concept of proximate causation is
applicable in both criminal and tort law, and the
analysis is parallel in many instances. 1 W.
LaFave, Substantive Criminal Law 6.4(c), p.
471 (2d ed. 2003) (hereinafter LaFave). Proximate
cause is often explicated in terms of foreseeability or the
scope of the risk created by the predicate conduct. See,
e.g., ibid.; 1 Restatement (Third) of Torts:
Liability for Physical and Emotional Harm 29,
p. 493 (2005) (hereinafter Restatement). A
requirement of proximate cause thus serves, inter
alia, to preclude liability in situations where the causal
link between conduct and result is so attenuated that the
consequence is more aptly described as mere fortuity.
Exxon Co., U. S. A. v. Sofec, Inc., 517 U.S. 830,
838839 (1996).
16. All parties agree 2259 imposes some causation
requirement. The statute defines a victim as the
individual harmed as a result of a commission of
a crime under this chapter. 2259(c). The words
as a result of plainly suggest causation. See
Pacific Operators Offshore, LLP v. Valladolid,
565 U.S. ___, ___ (2012) (slip op., at 13); see
also Burrage v. United States, 571 U.S. ___, ___
(2014) (slip op., at 5). And a straightforward
reading of 2259(c) indicates that the term a
crime refers to the offense of conviction. Cf.
Hughey v. United States, 495 U.S. 411, 416
(1990). So if the defendants offense conduct did not
cause harm to an individual, that individual is by defini-
tion not a victim entitled to restitution under 2259.
17. As noted above, 2259 requires a court to order
restitution for the full amount of the victims losses,
Law Animated World, 31 August 2017
(2017) 2 LAW
2259(b)(1), which the statute defines to include
any costs incurred by the victim for six enumerated
categories of expense, 2259(b)(3). The reference to
costs incurred bythe victim is most naturally
understood as costs stemming from the source
that qualifies an individual as a victim in the
first place namely, ones arising as a result of
the offense. Thus, as is typically the case with
criminal restitution, 2259 is intended to compensate
victims for losses caused by the offense of conviction.
See id., at 416. This is an important point, for it
means the central concern of the causal inquiry must
be the conduct of the particular defendant from whom
restitution is sought.
18. But there is a further question whether
restitution under 2259 is limited to losses proximately
caused by the offense. As noted, a requirement of
proximate cause is more restrictive than a requirement
of factual cause alone. Even if 2259 made no
express reference to proximate causation, the
Court might well hold that a showing of
proximate cause was required. Proximate cause is
a standard aspect of causation in criminal law and
the law of torts. See 1 LaFave 6.4(a), at 464-
466; W. Keeton, D. Dobbs, R. Keeton, & D.
Owen, Prosser and Keeton on Law of Torts 41,
p. 263 (5th ed. 1984) (hereinafter Prosser and
Keeton). Given proximate causes traditional role
in causation analysis, this Court has more than
once found a proximate-cause requirement built
into a statute that did not expressly impose one.
See Holmes, supra, at 265268; Associated Gen.
Contractors of Cal., Inc. v. Carpenters, 459 U.S.
519, 529536 (1983); see also CSX Transp., Inc.,
supra, at ___ (ROBERTS, C. J., dissenting) (slip
op., at 4)(We have applied the standard requirement
of proximate cause to actions under federal statutes
where the text did not expressly provide for it);
Lexmark Intl, Inc. v. Static Control Components,
Inc., ante, at 1314.
19. Here, however, the interpretive task is easier,
for the requirement of proximate cause is in the
statutes text. The statute enumerates six categories
of covered losses. 2259(b)(3). These include
certain medical services, 2259(b)(3)(A);
physical and occupational therapy, 2259(b)(3)(B);
24
(2017) 2 LAW Paroline v. United States, Et al. [US-SC: Court Opinion]
transportation, temporary housing, and child care,
2259(b)(3)(C); lost income, 2259(b)(3)(D);
attorneys fees and costs, 2259(b)(3)(E); and a
final catch-all category for any other losses
suffered by the victim as a proximate result of the
offense, 2259(b)(3)(F).
20. The victim argues that because the proximate
result language appears only in the final, catchall
category of losses set forth at 2259(b)(3)(F), the
statute has no proximate-cause requirement for losses
falling within the prior enumerated categories. She
justifies this reading of 2259(b) in part on the
grammatical rule of the last antecedent,
according to which a limiting clause or phrase
should ordinarily be read as modifying only
the noun or phrase that it immediately follows.
Barnhart v. Thomas, 540 U.S. 20, 26 (2003). But
that rule is not an absolute and can assuredly be
overcome by other indicia of meaning. Ibid. The
Court has not applied it in a mechanical way
where it would require accepting unlikely
premises. United States v. Hayes, 555 U. S. 415,
425 (2009).
21. Other canons of statutory construction,
moreover, work against the reading the victim
suggests. When several words are followed by a
clause which is applicable as much to the first
and other words as to the last, the natural
construction of the language demands that the
clause be read as applicable to all. Porto Rico
Railway, Light & Power Co. v. Mor, 253 U.S.
345, 348 (1920). Furthermore, [i]t is a familiar
canon of statutory construction that [catchall]
clauses are to be read as bringing within a statute
categories similar in type to those specifically enumer-
ated. Federal Maritime Commn v. Seatrain
Lines, Inc., 411 U.S. 726, 734 (1973). Here,
2259(b)(3)(F) defines a broad, final category of
other losses suffered as a proximate result of
the offense. That category is most naturally
understood as a summary of the type of losses
covered i.e., losses suffered as a proximate
result of the offense.
22. The victim says that if Congress had wanted
to limit the losses recoverable under 2259 to
those proximately caused by the offense, it could
25
F-71
have written the statute the same way it wrote
2327, which provides for restitution to victims
of telemarketing fraud. Section 2327, which is
written and structured much like 2259, simply
defines the term full amount of the victims
losses as all losses suffered by the victim as a
proximate result of the offense. 2327(b)(3). In
essence the victim argues that the first five
categories of losses enumerated in 2259(b)(3)
would be superfluous if all were governed by a
proximate cause requirement. That, however, is
unpersuasive. The first five categories provide
guidance to district courts as to the specific types of
losses Congress thought would often be the proximate
result of a Chapter 110 offense and could as a general
matter be included in an award of restitution.
23. Reading the statute to impose a general proximate -
cause limitation accords with common sense. As noted
above, proximate cause forecloses liability in situations
where the causal link between conduct and result is so
attenuated that the so-called consequence is more akin
to mere fortuity. For example, suppose the
traumatized victim of a Chapter 110 offender needed
therapy and had a car accident on the way to her
therapists office. The resulting medical costs, in a
literal sense, would be a factual result of the offense. But
it would be strange indeed to make a defendant pay
restitution for these costs. The victim herself
concedes Congress did not intend costs like these
to be recoverable under 2259. Brief for Re-
spondent Amy 45. But she claims that it is
unnecessary to read into 2259 a proximate-
cause limitation in order to exclude costs of that
sort. Ibid. She says the statutecontextually and
inferentially require[s] a nexus for why the
losses were sustained i.e., a sufficient
connection to child pornography. Id., at 46.
24. The victim may be right that the concept of
proximate cause is not necessary to impose
sensible limitations on restitution for remote
consequences. But one very effective way, and
perhaps the most obvious way, of excluding costs like
those arising from the hypothetical car accident
described above would be to incorporate a proximate-
cause limitation into the statute. Congress did so, and
for reasons given above the proximate-cause
requirement applies to all the losses described in 2259.
Law Animated World, 31 August 2017
F-72 Paroline v. United States, Et al. [US-SC: Court Opinion]
Restitution is therefore proper under 2259 only to
the extent the defendants offense proximately caused a
victims losses.
III
25. There remains the difficult question of how to
apply the statutes causation requirements in this case.
The problem stems from the somewhat atypical
causal process underlying the losses the victim
claims here. It is perhaps simple enough for the
victim to prove the aggregate losses, including
the costs of psychiatric treatment and lost income,
that stem from the ongoing traffic in her images
as a whole. (Complications may arise in
disaggregating losses sustained as a result of the
initial physical abuse, but those questions may be
set aside for present purposes.) These losses may
be called, for conveniences sake, a victims
general losses. The difficulty is in determining
thefull amount of those general losses, if any, that are
the proximate result of the offense conduct of a
particular defendant who is one of thousands who
have possessed and will in the future possess the
victims images but who has no other connection
to the victim.
26. In determining the amount of general losses a
defendant must pay under 2259 the ultimate
question is how much of these losses were the
proximate result, 2259(b)(3)(F), of that
individuals offense. But the most difficult aspect of
this inquiry concerns the threshold requirement of
causation in fact. To be sure, the requirement of
proximate causation, as distinct from mere causation in
fact, would prevent holding any possessor liable for
losses caused in only a remote sense. But the victims
costs of treatment and lost income resulting from
the trauma of knowing that images of her abuse
are being viewed over and over are direct and
foreseeable results of child-pornography crimes,
including possession, assuming the prerequisite
of factual causation is satisfied. The primary
problem, then, is the proper standard of causation
in fact.
A 29. Recognizing that losses cannot be substantiated
27. The traditional way to prove that one event was a
factual cause of another is to show that the latter would
not have occurred but for the former. This
Law Animated World, 31 August 2017
(2017) 2 LAW
approach is a familiar part of our legal tradition,
see 1 LaFave 6.4(b), at 467468; Prosser and
Keeton 41, at 266, and no party disputes that a
showing of but-for causation would satisfy 2259s
factual-causation requirement. Sometimes that
showing could be made with little difficulty. For
example, but-for causation could be shown with
ease in many cases involving producers of child
pornography, see 2251(a); parents who permit
their children to be used for child-pornography
production, see 2251(b); individuals who sell
children for such purposes, see 2251A; or the
initial distributor of the pornographic images of a
child, see 2252.
28. In this case, however, a showing of but-for
causation cannot be made. The District Court found
that the Government failed to prove specific
losses caused by Paroline in a but-for sense and
recognized that it would be incredibly difficult
to do so in a case like this. 672 F. Supp. 2d, 13 at
791793. That finding has a solid foundation in
the record, and it is all but unchallenged in this
Court. See Brief for Respondent Amy 63; Brief
for United States 19, 25. But see Supp. Brief for
United States 8-10. From the victims
perspective, Paroline was just one of thousands of
anonymous possessors. To be sure, the victims
precise degree of trauma likely bears a relation to
the total number of offenders; it would probably
be less if only 10 rather than thousands had seen
her images. But it is not possible to prove that her
losses would be less (and by how much) but for
one possessors individual role in the large,
loosely connected network through which her
images circulate. See Sentencing Commn Report,
at ii, xx. Even without Parolines offense, thousands
would have viewed and would in the future view the
victims images, so it cannot be shown that her trauma
and attendant losses would have been any different
butfor Parolines offense. That is especially so
given the parties stipulation that the victim had
no knowledge of Paroline. See supra, at 4.
under a but-for approach where the defendant is an
anonymous possessor of images in wide
circulation on the Internet, the victim and the
26
(2017) 2 LAW Paroline v. United States, Et al. [US-SC: Court Opinion]
Government urge the Court to read 2259 to require a
less restrictive causation standard, at least in this and
similar child-pornography cases. They are correct
to note that courts have departed from the but-for
standard where circumstances warrant, especially
where the combined conduct of multiple wrongdoers
produces a bad outcome. See Burrage, 571 U. S., at __
(slip op., at 10) (acknowledging the undoubted reality
that courts have not always required strict but-for
causality, even where criminal liability is at issue).
30. The victim and the Government look to the
literature on criminal and tort law for alternatives
to the but-for test. The Court has noted that the
most common exception to the but-for causation
requirement is applied where multiple sufficient causes
independently produce a result, ibid.; see also 1
LaFave 6.4(b), at 467469; 1 Restatement 27,
at 376. This exception is an ill fit here, as all parties
seem to recognize. Parolines possession of two
images of the victim was surely not sufficient to
cause her entire losses from the ongoing trade in
her images. Nor is there a practical way to isolate
some subset of the victims general losses that Parolines
conduct alone would have been sufficient to cause. See
Brief for United States 26, n. 11.
31. Understandably, the victim and the Government
thus concentrate on a handful of less demanding
causation tests endorsed by authorities on tort law. One
prominent treatise suggests that [w]hen the
conduct of two or more actors is so related to an
event that their combined conduct, viewed as a
whole, is a but-for cause of the event, and
application of the but-for rule to them
individually would absolve all of them, the
conduct of each is a cause in fact of the event.
Prosser and Keeton 41, at 268. The Restatement
adopts a similar exception for [m]ultiple
sufficient causal sets. 1 Restatement 27,
Comment f, at 380-381. This is where a
wrongdoers conduct, though alone insufficient
to cause the plaintiff s harm, is, when
combined with conduct by other persons, more
than sufficient to cause the harm. Ibid. The
Restatement offers as an example a case in which
three people independently but simultaneously
lean on a car, creating enough combined force to
roll it off a cliff. Ibid. Even if each exerted too
27
F-73
little force to move the car, and the force exerted
by any two was sufficient to the move the car,
each individual is a factual cause of the cars
destruction. Ibid. The Government argues that
these authorities provide ample support for an
aggregate causation theory, Brief for United
States 18, and that such a theory would best
effectuate congressional intent in cases like this,
id., at 1819. The victim says much the same.
Brief for Respondent Amy 4243.
32. These alternative causal tests are a kind of legal
fiction or construct. If the conduct of a wrongdoer
is neither necessary nor sufficient to produce an
outcome, that conduct cannot in a strict sense be
said to have caused the outcome. Nonetheless,
tort law teaches that alternative and less demanding
causal standards are necessary in certain circumstances
to vindicate the laws purposes. It would be anomalous
to turn away a person harmed by the combined acts of
many wrongdoers simply because none of those
wrongdoers alone caused the harm. And it would be
nonsensical to adopt a rule whereby individuals hurt by
the combined wrongful acts of many (and thus in many
instances hurt more badly than otherwise) would have
no redress, whereas individuals hurt by the acts of one
person alone would have a remedy. Those are the
principles that underlie the various aggregate
causation tests the victim and the Government
cite, and they are sound principles.
33. These alternative causal standards, though
salutary when applied in a judicious manner, also can
be taken too far. That is illustrated by the victims
suggested approach to applying 2259 in cases
like this. The victim says that under the strict logic
of these alternative causal tests, each possessor of
her images is a part of a causal set sufficient to produce
her ongoing trauma, so each possessor should be treated
as a cause in fact of all the trauma and all the attendant
losses incurred as a result of the entire ongoing traffic in
her images. Id., at 43. And she argues that if this
premise is accepted the further requirement of
proximate causation poses no barrier, for she seeks
restitution only for those losses that are the direct and
foreseeable result of child-pornography offenses.
Because the statute requires restitution for the
full amount of the victims losses, including
any losses suffered by the victim as a
proximate result of the offense, 2259(b), she
Law Animated World, 31 August 2017
F-74 Paroline v. United States, Et al. [US-SC: Court Opinion]
argues that restitution is required for the entire aggre-
gately caused amount.
34. The striking outcome of this reasoning that
each possessor of the victims images would bear
the consequences of the acts of the many
thousands who possessed those images
illustrates why the Court has been reluctant to
adopt aggregate causation logic in an incautious
manner, especially in interpreting criminal
statutes where there is no language expressly
suggesting Congress intended that approach. See
Burrage, 571 U.S., at ___ (slip op., at 11-12).
Even if one were to refer just to the law of torts, it
would be a major step to say there is a sufficient causal
link between the injury and the wrong so that all the
victims general losses were suffered as a proximate
result of [Parolines] offense, 2259(b)(3)(F).
35. And there is special reason not to do so in the
context of criminal restitution. Aside from the
manifest procedural differences between criminal
sentencing and civil tort law suits, restitution serves
purposes that differ from (though they overlap with) the
purposes of tort law. See, e.g., Kelly v. Robinson,
479 U.S. 36, 49, n. 10 (1986) (noting that
restitution is, inter alia, an effective rehabilitative
penalty). Legal fictions developed in the law of torts
cannot be imported into criminal restitution and applied
to their utmost limits without due consideration of
these differences.
36. Contrary to the victims suggestion, this is not
akin to a case in which a gang of ruffians
collectively beats a person, or in which a woman
is gang raped by five men on one night or by
five men on five sequential nights. Brief for
Respondent Amy 55. First, this case does not involve
a set of wrongdoers acting in concert, see Prosser and
Keeton 52, at 346 (discussing full liability for a
joint enterprise); for Paroline had no contact with
the overwhelming majority of the offenders for
whose actions the victim would hold him
accountable. Second, adopting the victims approach
would make an individual possessor liable for the
combined consequences of the acts of not just 2, 5, or
even 100 independently acting offenders; but instead, a
number that may reach into the tens of thousands. See
Brief for Respondent Amy 65.
Law Animated World, 31 August 2017
(2017) 2 LAW
37. It is unclear whether it could ever be sensible to
embrace the fiction that this victims entire losses were
the proximate result, 2259(b)(3)(F), of a single
possessors offense. Parolines contribution to the causal
process underlying the victims losses was very minor,
both compared to the combined acts of all other
relevant offenders, and in comparison to the
contributions of other individual offenders,
particularly distributors (who may have caused
hundreds or thousands of further viewings) and
the initial producer of the child pornography. See
1 Restatement 36, and Comment a, at 597-598
(recognizing a rule excluding from liability
individuals whose contribution to a causal set that
factually caused the outcome pales by
comparison to the other contributions to that
causal set). But see id., 27, Reporters Note,
Comment i, at 395 (The conclusion that none
of two dozen small contributions to a sufficient
causal set was a cause of the outcome is obviously
untenable). Congress gave no indication that it
intended its statute to be applied in the expansive
manner the victim suggests, a manner contrary to
the bedrock principle that restitution should reflect the
consequences of the defendants own conduct, see
Hughey, 495 U.S., at 416, not the conduct of
thousands of geographically and temporally
distant offenders acting independently, and with
whom the defendant had no contact.
38. The victim argues that holding each possessor
liable for her entire losses would be fair and practical, in
part because offenders may seek contribution from one
another. Brief for Respondent Amy 58. If that
were so, it might mitigate to some degree the
concerns her approach presents. But there is scant
authority for her contention that offenders
convicted in different proceedings in different
jurisdictions and ordered to pay restitution to the
same victim may seek contribution from one
another. There is no general federal right to
contribution. Northwest Airlines, Inc. v. Transport
Workers, 451 U.S. 77, 9697 (1981). Nor does
the victim point to any clear statutory basis for a
right to contribution in these circumstances. She
thus suggests that this Court should imply a cause
of action. Brief for Respondent Amy 58. But that
28
(2017) 2 LAW Paroline v. United States, Et al. [US-SC: Court Opinion]
is a rare step in any circumstance. See, e.g.,
Stoneridge Investment Partners, LLC v.
Scientific-Atlanta, Inc., 552 U.S. 148, 164-165
(2008); Musick, Peeler & Garrett v. Employers
Ins. of Wausau, 508 U.S. 286, 291 (1993) (noting
that this Courts precedents teach that the creation of
new rights ought to be left to legislatures, not courts).
And it would do little to address the practical
problems offenders would face in seeking
contribution in any event, see Brief for United
States 45-46, problems with which the victim
fails to grapple.
39. The reality is that the victims suggested
approach would amount to holding each possessor of
her images liable for the conduct of thousands of other
independently acting possessors and distributors, with
no legal or practical avenue for seeking contribution.
That approach is so severe it might raise questions
under the Excessive Fines Clause of the Eighth
Amendment. To be sure, this Court has said that
the Excessive Fines Clause was intended to limit
only those fines directly imposed by, and payable
to, the government. Browning-Ferris Industries
of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257,
268 (1989). But while restitution under 2259 is
paid to a victim, it is imposed by the Government
at the culmination of a criminal proceeding and
requires conviction of an underlying crime,
United States v. Bajakajian, 524 U.S. 321, 328
(1998). Thus, despite the differences between
restitution and a traditional fine, restitution still
implicates the prosecutorial powers of
government, Browning-Ferris, supra, at 275.
The primary goal of restitution is remedial or
compensatory, cf. Bajakajian, supra, at 329, but it
also serves punitive purposes, see Pasquantino v.
United States, 544 U.S. 349, 365 (2005) (The
purpose of awarding restitution under 18 U. S.
C. 3663A is to mete out appropriate criminal
punishment); Kelly, 479 U.S., at 49, n. 10. That
may be sufficient to bring [it] within the purview
of the Excessive Fines Clause, Bajakajian,
supra, at 329, n. 4. And there is a real question
whether holding a single possessor liable for
millions of dollars in losses collectively caused
by thousands of independent actors might be
29
F-75
excessive and disproportionate in these
circumstances. These concerns offer further
reason not to interpret the statute the way the
victim suggests.
B
40. The contention that the victims entire losses from
the ongoing trade in her images were suffered . . . as a
proximate result of Parolines offense for purposes of
2259 must be rejected. But that does not mean the
broader principles underlying the aggregate causation
theories the Government and the victim cite are
irrelevant to determining the proper outcome in
cases like this. The cause of the victims general
losses is the trade in her images. And Paroline is
a part of that cause, for he is one of those who
viewed her images. While it is not possible to
identify a discrete, readily definable incremental
loss he caused, it is indisputable that he was a
part of the overall phenomenon that caused her
general losses. Just as it undermines the purposes
of tort law to turn away plaintiffs harmed by
several wrongdoers, it would undermine the
remedial and penological purposes of 2259 to
turn away victims in cases like this.
41. With respect to the statutes remedial purpose,
there can be no question that it would produce
anomalous results to say that no restitution is
appropriate in these circumstances. It is common
ground that the victim suffers continuing and
grievous harm as a result of her knowledge that a
large, indeterminate number of individuals have
viewed and will in the future view images of the
sexual abuse she endured. Brief for Petitioner 50;
Brief for Respondent Wright 4; Brief for United
States 23; Brief for Respondent Amy 60. Harms of
this sort are a major reason why child pornography is
outlawed. See Ferber, 458 U.S., at 759. The
unlawful conduct of everyone who reproduces,
distributes, or possesses the images of the victims abuse
including Paroline plays a part in sustaining and
aggravating this tragedy. And there can be no doubt
Congress wanted victims to receive restitution for
harms like this. The law makes restitution
mandatory, 2259(b)(4), for child-pornography
offenses under Chapter 110, language that indicates
Congress clear intent that victims of child
Law Animated World, 31 August 2017
F-76 Paroline v. United States, Et al. [US-SC: Court Opinion]
pornography be compensated by the perpetrators who
contributed to their anguish. It would undermine this
intent to apply the statute in a way that would
render it a dead letter in child-pornography
prosecutions of this type.
42. Denying restitution in cases like this would
also be at odds with the penological purposes of 2259s
mandatory restitution scheme. In a sense, every
viewing of child pornography is a repetition of the
victims abuse. One reason to make restitution
mandatory for crimes like this is to impress upon
offenders that their conduct produces concrete
and devastating harms for real, identifiable
victims. See Kelly, supra, at 49, n. 10
(Restitution is an effective rehabilitative penalty
because it forces the defendant to confront, in
concrete terms, the harm his actions have
caused). It would be inconsistent with this
purpose to apply the statute in a way that leaves
offenders with the mistaken impression that child-
pornography possession (at least where the images
are in wide circulation) is a victimless crime.
43. If the statute by its terms required a showing
of strict but-for causation, these purposes would
be beside the point. But the text of the statute is
not so limited. Although Congress limited
restitution to losses that are the proximate
result of the defendants offense, such
unelaborated causal language by no means
requires but-for causation by its terms. See
Burrage, 571 U.S., at ___ (slip op., at 8) (courts
need not read phrases like results from to
require but-for causality where there is textual or
contextual reason to conclude otherwise). As the
authorities the Government and the victim cite
show, the availability of alternative causal
standards where circumstances warrant is, no less
than the but-for test itself as a default, part of the
background legal tradition against which
Congress has legislated, cf. id., at ___ (slip op., at
10). It would be unacceptable to adopt a causal
standard so strict that it would undermine
congressional intent where neither the plain text
of the statute nor legal tradition demands such an
approach.
Law Animated World, 31 August 2017
(2017) 2 LAW
44. In this special context, where it can be shown
both that a defendant possessed a victims images
and that a victim has outstanding losses caused by
the continuing traffic in those images but where it
is impossible to trace a particular amount of those
losses to the individual defendant by recourse to a
more traditional causal inquiry, a court applying
2259 should order restitution in an amount that
comports with the defendants relative role in the causal
process that underlies the victims general losses. The
amount would not be severe in a case like this, given
the nature of the causal connection between the
conduct of a possessor like Paroline and the
entirety of the victims general losses from the
trade in her images, which are the product of the
acts of thousands of offenders. It would not,
however, be a token or nominal amount. The required
restitution would be a reasonable and circumscribed
award imposed in recognition of the indisputable role of
the offender in the causal process underlying the
victims losses and suited to the relative size of that
causal role. This would serve the twin goals of
helping the victim achieve eventual restitution for
all her child-pornography losses and impressing
upon offenders the fact that childpornography
crimes, even simple possession, affect real victims.
45. There remains the question of how district
courts should go about determining the proper
amount of restitution. At a general level of
abstraction, a court must assess as best it can
from available evidence the significance of the
individual defendants conduct in light of the
broader causal process that produced the victims
losses. This cannot be a precise mathematical
inquiry and involves the use of discretion and
sound judgment. But that is neither unusual nor
novel, either in the wider context of criminal
sentencing or in the more specific domain of
restitution. It is well recognized that district
courts by necessity exercise discretion in
fashioning a restitution order. 3664(a). Indeed,
a district court is expressly authorized to conduct
a similar inquiry where multiple defendantswho
have contributed to the loss of a victim appear
before it. 3664(h). In that case it may apportion
liability among the defendants to reflect the level
30
(2017) 2 LAW Paroline v. United States, Et al. [US-SC: Court Opinion]
of contribution to the victims loss of each
defendant. Ibid. Assessing an individual
defendants role in the causal process behind a
child-pornography victims losses does not involve
a substantially different or greater exercise of
discretion.
46. There are a variety of factors district courts might
consider in determining a proper amount of restitution,
and it is neither necessary nor appropriate to prescribe
a precise algorithm for determining the proper
restitution amount at this point in the laws
development. Doing so would unduly constrain
the decision-makers closest to the facts of any
given case. But district courts might, as a starting
point, determine the amount of the victims losses
caused by the continuing traffic in the victims
images (excluding, of course, any remote losses
like the hypothetical car accident described
above, see supra, at 10), then set an award of
restitution in consideration of factors that bear on the
relative causal significance of the defendants conduct in
producing those losses. These could include the
number of past criminal defendants found to have con-
tributed to the victims general losses; reasonable
predictions of the number of future offenders likely to
be caught and convicted for crimes contributing to
the victims general losses; any available and
reasonably reliable estimate of the broader
number of offenders involved (most of whom
will, of course, never be caught or convicted);
whether the defendant reproduced or distributed
images of the victim; whether the defendant had any
connection to the initial production of the images; how
many images of the victim the defendant possessed; and
other facts relevant to the defendants relative causal
role. See Brief for United States 49.
47. These factors need not be converted into a rigid
formula, especially if doing so would result in trivial
restitution orders. They should rather serve as rough
guideposts for determining an amount that fits the
offense. The resulting amount fixed by the court would
be deemed the amount of the victims general losses that
were the proximate result of the offense for purposes
of 2259, and thus the full amount of such losses that
should be awarded. The court could then set an
appropriate payment schedule in consideration of
the defendants financial means. See 3664(f)(2).
31
F-77
48. The victim says this approach is untenable
because her losses are indivisible in the sense
that term is used by tort law, i.e., that there is no
reasonable basis for the factfinder to determine
the amount of damages separately caused by
any one offenders conduct. Restatement (Third)
of Torts: Apportionment of Liability 26, p. 320
(1999). The premise of her argument is that because it
is in a sense a fiction to say Paroline caused $1,000 in
losses, $10,000 in losses, or any other lesser amount, it is
necessary to embrace the much greater fiction that
Paroline caused all the victims losses from the ongoing
trade in her images. But that is a non sequitur. The
Court is required to define a causal standard that effects
the statutes purposes, not to apply tort-law concepts in
a mechanical way in the criminal restitution context.
Even if the victims losses are fully indivisible
in this sense (which is debatable), treating
Paroline as a proximate cause of all the victims
losses especially in the absence of a workable
system of contribution stretches the fiction of
aggregate causation to its breaking point.
Treating him as a cause of a smaller amount of
the victims general losses, taking account of his
role in the overall causal process behind those
losses, effects the statutes purposes; avoids the
nonsensical result of turning away victims
emptyhanded; and does so without sacrificing the
need for proportionality in sentencing.
49. The victim also argues that this approach
would consign her to piecemeal restitution and
leave her to face decades of litigation that might
never lead to full recovery, Brief for Respondent
Amy 57, which would convert Congresss
promise to child pornography victims into an
empty gesture, id., at 66. But Congress has not
promised victims full and swift restitution at all costs.
To be sure, the statute states a strong restitutionary
purpose; but that purpose cannot be twisted into a
license to hold a defendant liable for an amount
drastically out of proportion to his own individual
causal relation to the victims losses.
50. Furthermore, an approach of this sort better effects
the need to impress upon defendants that their acts are
not irrelevant or victimless. As the Government
observes, Reply Brief for United States 18, it would
undermine this important purpose of criminal restitution
Law Animated World, 31 August 2017
F-78 Paroline v. United States, Et al. [US-SC: Roberts CJ dissenting]
if the victim simply collected her full losses from a
handful of wealthy possessors and left the remainder to
pay nothing because she had already fully collected. Of
course the victim should some day collect
restitution for all her child-pornography losses,
but it makes sense to spread payment among a
larger number of offenders in amounts more
closely in proportion to their respective causal
roles and their own circumstances so that more
are made aware, through the concrete mechanism
of restitution, of the impact of child-pornography
possession on victims.
C CHIEF JUSTICE ROBERTS, with whom
51. This approach is not without its difficulties.
Restitution orders should represent an application of
law, not a decision-makers caprice, Philip Morris
USA v. Williams, 549 U.S. 346, 352 (2007) (internal
quotation marks omitted), and the approach
articulated above involves discretion and
estimation. But courts can only do their best to apply
the statute as written in a workable manner, faithful to
the competing principles at stake: that victims should
be compensated and that defendants should
beheld to account for the impact of their conduct
on those victims, but also that defendants should be
made liable for the consequences and gravity of their
own conduct, not the conduct of others. District courts
routinely exercise wide discretion both in sentencing as
a general matter and more specifically in fashioning
restitution orders. There is no reason to believe they
cannot apply the causal standard defined above in a
reasonable manner without further detailed guidance at
this stage in the laws elaboration. Based on its
experience in prior cases of this kind, the
Government which, as noted above, see supra,
at 56, bears the burden of proving the amount of
the victims losses, 3664(e) could also inform
district courts of restitution sought and ordered in
other cases.
52. The Fifth Circuits interpretation of the
requirements of 2259 was incorrect. The District
Court likewise erred in requiring a strict showing of
but-for causation. The judgment of the Court of
Appeals is vacated, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
***
Law Animated World, 31 August 2017
(2017) 2 LAW
ROBERTS, C. J., dissenting
SUPREME COURT OF THE
UNITED STATES
No. 128561
DOYLE RANDALL PAROLINE, PETITIONER v.
UNITED STATES, ET AL.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
[April 23, 2014]
JUSTICE SCALIA and JUSTICE THOMAS join,
dissenting.
1. I certainly agree with the Court that Amy deserves
restitution, and that Congress by making restitution
mandatory for victims of child pornography meant
that she have it. Unfortunately, the restitution
statute that Congress wrote for child pornography
offenses makes it impossible to award that relief
to Amy in this case. Instead of tailoring the statute to
the unique harms caused by child pornography,
Congress borrowed a generic restitution standard that
makes restitution contingent on the Governments
ability to prove, by the preponderance of the
evidence, the amount of the loss sustained by a victim
as a result of the defendants crime. 18 U.S.C.
3664(e). When it comes to Parolines crime
possessionof two of Amys images it is not
possible to do anything more than pick an
arbitrary number for that amount. And arbitrary
is not good enough for the criminal law.
2. The Court attempts to design a more coherent
restitution system, focusing on the defendants relative
role in the causal process that underlies the victims
general losses. Ante, at 21. But this inquiry, sensible
as it may be, is not the one Congress adopted. After
undertaking the inquiry that Congress did require,
the District Court in this case concluded that the
Government could not meet its statutory burden of
proof. Before this Court, the Government all but
concedes the point. See Brief for United States 25
(it is practically impossible to know whether
[Amys] losses would have been slightly lower if
one were to subtract one defendant, or ten, or
fifty). I must regretfully dissent.
32
(2017) 2 LAW Paroline v. United States, Et al. [US-SC: Roberts CJ dissenting]
I 911 (citing 2259(b)(3)). Contrary to Parolines
3. Section 2259(a) of Title 18 directs that a district
court shall order restitution for any offense under this
chapter, which includes Parolines offense of
knowingly possessing child pornography in violation of
section 2252. In case Congresss purpose were not
clear from its use of shall, section 2259(b)(4)
then emphasizes that [t]he issuance of a restitution
order under this section is mandatory.
4. Section 2259(b)(1) spells out who may receive
restitution, and for what. It provides that [t]he
order of restitution under this section shall direct
the defendant to pay the victim (through the
appropriate court mechanism) the full amount of
the victims losses as determined by the court
pursuant to [section 2259(b)(2)]. The term
victim is defined as the individual harmed
as a result of a commission of a crime under this
chapter. 2259(c). And the term full amount of
the victims losses includes any costs incurred
by the victim for medical services relating to
physical, psychiatric, or psychological care;
lost income; and any other losses suffered by
the victim as a proximate result of the offense.
2259(b)(3)(A), (D), (F).
5. Section 2259(b)(2) then describes how the
district court must calculate restitution. It provides
that [a]n order of restitution under this section
shall be issued and enforced in accordance with
section 3664 in the same manner as an order
under section 3663A. Unlike section 2259,
sections 3663A and 3664 were not designed
specifically for child pornography offenses; they
are part of the Mandatory Victims Restitution Act
of 1996 and supply general restitution guidelines
for many federal offenses. Most relevant here,
section 3664(e) provides that [a]ny dispute as to
the proper amount or type of restitution shall be
resolved by the court by the preponderance of the
evidence. The burden of demonstrating the amount of
the loss sustained by a victim as a result of the
offense shall be on the attorney for the Government.
A loss and economic circumstances of each defendant. As the
6. As the Court explains, the statute allows
restitution only for those losses that were the
proximate result of Parolines offense. See ante, at
F-79
argument, the proximate cause requirement is easily
satisfied in this case. It was readily foreseeable that
Parolines crime could cause Amy to suffer
precisely the types of losses that she claims:
future lost wages, costs for treatment and
counseling, and attorneys fees and costs, all of
which are eligible losses enumerated in section
2259(b)(3). There is a direct relation between
those types of injuries and Parolines injurious
conduct. Holmes v. Securities Investor Protection
Corporation, 503 U.S. 258,268 (1992). I therefore
agree withthe Court that if Paroline actually
caused those losses, he also proximately caused
them. See ante, at 12.
7. The more pressing problem is the statutory
requirement of actual causation. See Burrage v. United
States, 571 U.S. ___, ___ (2014) (slip op., at 6) (the
ordinary meaning of the term results from requires
proof that the defendants conduct was the actual
cause of the injury). Here too the Court correctly holds
that the statute precludes the restitution award sought
by Amy and preferred by JUSTICE SOTOMAYORs
dissent, which would hold Paroline responsible for
Amys entire loss. See ante, at 16-19; contra, post,
at 7-16. Congress has authorized restitution only for
the amount of the loss sustained by a victim as a result
of the offense. 3664(e). We have interpreted
virtually identical language, in the predecessor
statute to section 3664, to require restitution to
be tied to the loss caused by the offense of
conviction. Hughey v. United States, 495 U. S. 411,
418 (1990) (citing 18 U. S. C.3580(a) (1982 ed.);
emphasis added). That is, restitution may not be
imposed for losses caused by any other crime or any
1
other defendant. (emphases in bold ours)
1
In a case where the loss is the product of the combined
conduct of multiple offenders, post, at 7 (SOTOMAYOR,
J., dissenting), section 3664(h) provides that a court may
make each defendant liable for payment of the full amount
of restitution or may apportion liability among the
defendants to reflect the level of contribution to the victims
Court notes, however, this provision applies only when
multiple defendants are sentenced in the same proceeding,
or charged under the same indictment. Ante, at 22; see also
Brief for United States 43. (emphases ours)
33 Law Animated World, 31 August 2017
F-80 Paroline v. United States, Et al. [US-SC: Roberts CJ dissenting]
8. JUSTICE SOTOMAYORs dissent dismisses
section 3664(e), which is Congresss direct
answer to the very question presented by this
case, namely, how to resolve a dispute as to the
proper amount of restitution. JUSTICE
SOTOMAYOR thinks the answer to that question
begins and ends with the statement in section
2259(b)(1) that thedefendant must pay the full
amount of the victims losses. See post, at 1, 2,
10, 15. But losses from what? The answer is
found in the rest of that sentence: the full
amount of the victims losses as determined by
the court pursuant to paragraph 2. 2259(b)(1)
(emphasis added).[P]aragraph 2, of course,
instructs that [a]n order of restitution under this
section shall be issued and enforced in
accordance with section 3664 in the same manner
as an order under section 3663A. 2259(b)(2).
And it is section 3664 that provides the statutes
burden of proof and specifies that the defendant pay for
those losses sustained as a result of the offense that
is, his offense. 3664(e).
9. The offense of conviction here was Parolines
possession of two of Amys images. No one
suggests Parolines crime actually caused Amy to
suffer millions of dollars in losses, so the statute
does not allow a court to award millions of
dollars in restitution. Determining what amount the
statute does allow the amount of Amys losses that
Parolines offense caused is the real difficulty of this
case. See ante, at 12.
B being viewed online by an unknown number of
10. Regrettably, Congress provided no mechanism for
answering that question. If actual causation is to be
determined using the traditional, but-for standard,
then the Court acknowledges that a showing of
but-for causation cannot be made in this case.
Ante, at 12. Amy would have incurred all of her
lost wages and counseling costs even if Paroline
had not viewed her images. The Government and
Amy respond by offering an aggregate causation
theory borrowed from tort law. But even if we apply
this legal fiction, ante, at 15, and assume, for
purposes of argument, that Parolines crime
contributed something to Amys total losses, that
Law Animated World, 31 August 2017
(2017) 2 LAW
suffices only to establish causation in fact. It is not
sufficient to award restitution under the statute, which
requires a further determination of the amount that
Paroline must pay. He must pay the full amount of
the victims losses, yes, but as determined by
section 3664 that is, the full amount of the losses he
caused. The Government has the burden to establish
that amount, and no one has suggested a plausible
means for the Government to carry that burden.2
11. The problem stems from the nature of Amys
injury. As explained, section 3664 is a general
statute designed toprovide restitution for more
common crimes, such as fraud and assault. The
section 3664(e) standard will work just fine for
most crime victims, because it will usually not be
difficult to identify the harm caused by the
defendants offense. The dispute will usually just
be over the amount of the victims loss for
example, the value of lost assets orthe cost of a
night in the hospital.
12. Amy has a qualitatively different injury. Her loss,
while undoubtedly genuine, is a result of the
collective actions of a huge number of people
beginning with her uncle who abused her and put
her images on the Internet, to the distributors who
make those images more widely available, to the
possessors such as Paroline who view her images.
The harm to Amy was produced over time,
gradually, by tens of thousands of persons acting
independently from one another.3 She suffers in
particular from her knowledge that her images are
people, and from her fear that any person she
2
The correct amount is not the one favored by JUSTICE
SOTOMAYORs dissent, which would hold Paroline
liable for losses that he certainly did not cause, without
any right to seek contribution from others who harmed
Amy.
3
The gang assaults discussed by JUSTICE SOTOMAYOR,
post, at 8, are not a fair analogy. The gang members in
those cases acted together,with a common plan, each one
aiding and abetting the others in inflicting harm. But
Paroline has never met or interacted with any, or virtually
any, of the other persons who contributed to Amys
injury, and his possession offense did not aid or abet
anyone.
34
(2017) 2 LAW Paroline v. United States, Et al. [US-SC: Roberts CJ dissenting]
meets might recognize her from having witnessed
her abuse. App. 59-66. But Amy does not know who
Paroline is. Id., at 295, n. 11. Nothing in the record
comes close to establishing that Amy would have
suffered less if Paroline had not possessed her images,
let alone how much less. See Brief for United
States 25. Amys injury is indivisible, which means
that Parolines particular share of her losses is
unknowable. And yet it is proof of Parolines particular
share that the statute requires.
13. By simply importing the generic restitution
statute without accounting for the diffuse harm
suffered by victims of child pornography,
Congress set up a restitution system sure to fail in
cases like this one. Perhaps a case with different
facts, say, a single distributor and only a handful
of possessors, would be susceptible of the proof
the statute requires. But when tens of thousands
of copies (or more) of Amys images have
changed hands all across the world for more than
a decade, a demand for the Government to prove the
amount of the loss sustained by a victim as a result of
the offense the offense before the court in any
particular case is a demand for the impossible.
3664(e) (emphasis in italics by the Court). When Congress
conditioned restitution on the Governments
meeting that burden of proof, it effectively
precluded restitution in most cases involving
possession or distribution of child pornography.
II
14. The District Court in Parolines case found
that the Government could not meet its statutory
burden of proof. The Government does not really
contest that holding here; it instead asks to be
held to a less demanding standard. Having
litigated this issue for years now in virtually
every Circuit, the best the Government has come
up with is to tell courts awarding restitution to
look at what other courts have done. But that is
not a workable guide, not least because courts
have taken vastly different approaches to
materially indistinguishable cases. According to
the Governments lodging in this case, District
Courts awarding less than Amys full losses have
35
F-81
imposed restitution orders varying from $50 to
$530,000.4 Restitution Awards for Amy Through
December 11, 2013, Lodging of UnitedStates.
How is a court supposed to use those figures as
any sort of guidance? Pick the median figure?
The mean? Something else?
15. More to the point, the Governments
submission lacks any basis in law. That the first
district courts confronted with Amys case
awarded $1,000, or $5,000, or $530,000, for no
articulable reason, is not a legal basis for
awarding one of those figures in Parolines case.
The statute requires proof of this defendants harm
done, not the going rate. And of course, as the
Government acknowledges, its approach doesnt
work very well in the first case brought by a
particular victim. Tr. of Oral Arg. 24.
16. The majoritys proposal is to have a district
court assess as best it can from available
evidence the significance of the individual
defendants conduct in light of the broader causal
process that produced the victims losses. Ante,
at 22. Even if that were a plausible way to design
a restitution system for Amys complex injury,
there is no way around the fact that it is not the system
that Congress created. The statute requires
restitution to be based exclusively on the losses
that resulted from the defendants crime not on
the defendants relative culpability. The
majoritys plan to situate Paroline along a
spectrum of offenders who have contributed to
Amys harm will not assist a district court in
calculating the amount of Amys losses the
amount of her lost wages and counseling costs
that was caused by Parolines crime (or that of
any other defendant).
17. The Court is correct, of course, that awarding
Amy no restitution would be contrary to Congresss
remedial and penological purposes. See ante, at 20.
But we have previously refused to allow policy
4
Amys uncle the initial source of all of her injuries
was ordered to pay $6,325 in restitution, which only
underscores how arbitrary thestatute is when applied to
most child pornography offenses.
Law Animated World, 31 August 2017
F-82 Paroline v. United States, Et al. [US-SC: Roberts CJ dissenting]
considerations including an expansive
declaration of purpose, and the need
tocompensate victims for the full losses they
suffered to deter us from reading virtually
identical statutory language to require proof of
the harm caused solely by the defendants
particular offense. Hughey, 495 U.S., at 420-421.
18. Moreover, even the Courts relative role in
the causal process approach to the statute, ante,
at 21, is unlikely to make Amy whole. To the
extent that district courts do form a sort of
consensus on how much to award, experience
shows that the amount in any particular case will
bequite small the significant majority of
defendants havebeen ordered to pay Amy $5,000
or less. Lodging of United States. This means that
Amy will be stuck litigating for years to come.
The Court acknowledges that Amy mayend up
with piecemeal restitution, yet responds simply
that Congress has not promised victims full and
swift restitution at all costs. Ante, at 24.
19. Amy will fare no better if district courts
consider theother factors suggested by the
majority, including thenumber of defendants
convicted of possessing Amys im- ages, a rough
estimate of those likely to be convicted in the
future, and an even rougher estimate of the total
number of persons involved in her harm. Ante, at
23. In the first place, only the last figure is
relevant, because Parolines relative significance
can logically be measured only in light of
everyone who contributed to Amys injury
notjust those who have been, or will be, caught
and convicted. Even worse, to the extent it is
possible to project the total number of persons
who have viewed Amys images, that number is
tragically large, which means that restitution
awards tied to it will lead to a pitiful recovery in
every case. See Brief for Respondent Amy 65
(estimating Parolines market share of Amys
harm at 1/71,000, or $47).The majority says that
courts should not impose trivial restitution
orders, ante, at 23, but it is hard to see how a
court fairly assessing this defendants relative
contribution could do anything else.
Law Animated World, 31 August 2017
(2017) 2 LAW
20. Nor can confidence in judicial discretion save
the statute from arbitrary application. See ante, at
22, 2526. It is true that district courts exercise
substantial discretion in awarding restitution and
imposing sentences in general.But they do not do
so by mere instinct. Courts are instead guided by
statutory standards: in the restitution context, a
fair determination of the losses caused by the
individual defendant under section 3664(e); in
sentencing more generally, the detailed factors in
section 3553(a). A contraryapproachone that
asks district judges to impose restitution or other
criminal punishment guided solely by their own
intuitions regarding comparative faultwould
undermine the requirement that every criminal
defendant receive due process of law.
***
21. The Courts decision today means that Amy
will not go home with nothing. But it would be a
mistake for that salutary outcome to lead readers
to conclude that Amy has prevailed or that
Congress has done justice for victims of child
pornography. The statute as written allows no
recovery; we ought to say so, and give Congress a
chance to fix it.
22. I respectfully dissent.
*****
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36
(2017) 2 LAW Paroline v. United States, Et al. [US-SC: Sotomayor J dissenting]
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 128561
DOYLE RANDALL PAROLINE, PETITIONER
v. UNITED STATES, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT
[April 23, 2014]
JUSTICE SOTOMAYOR, dissenting.
1. This Court has long recognized the grave
physiological, emotional, and mental injuries
suffered by victims of child pornography. New
York v. Ferber, 458 U. S. 747, 758 (1982). The
traffic in images depicting a childs sexualabuse,
we have observed, poses an even greater threat
tothe child victim than does sexual abuse or
prostitution because the victim must go
through life knowing that therecording is
circulating within the mass distribution system
for child pornography. Id., at 759, n. 10. As we
emphasized in a later case, the images cause
continuing harm by haunting the chil[d] in years
to come. Osborne v. Ohio, 495 U. S. 103, 111
(1990).
2. Congress enacted 18 U. S. C. 2259 against
this backdrop. The statute imposes a mandatory
duty on courts to order restitution to victims of
federal offenses involving the sexual abuse of
children, including the possession ofchild
pornography. 2259(b)(4). And it commands that
for any such offense, a court shall direct the
defendant to paythe victim . . . the full amount of
the victims losses. 2259(b)(1).
3. The Court interprets this statute to require
restitution in a circumscribed amount less than
the entirety of the victims . . . losses, a total it
instructs courts to estimate based on the
defendants relative role in the victims harm.
Ante, at 21. That amount, the Court holds, should
be neither nominal nor severe. Ibid.
4. I appreciate the Courts effort to achieve what
it perceives to be a just result. It declines to
37
F-83
require restitution for a victims full losses, a
result that might seem incongruent to an
individual possessors partial role in a harmin
which countless others have participated. And it
rejectsthe position advanced by Paroline and the
dissenting opinion of THE CHIEF JUSTICE,
which would result in no restitution in cases like
this for the perverse reason that achild has been
victimized by too many.
5. The Courts approach, however, cannot be
reconciled with the law that Congress enacted.
Congress mandated restitution for the full
amount of the victims losses, 2259(b)(1), and
did so within the framework of settledtort law
principles that treat defendants like Paroline
jointly and severally liable for the indivisible
consequences of their intentional, concerted
conduct. And to the extent an award for the full
amount of a victims losses may lead to fears of
unfair treatment for particular defendants,
Congress provided a mechanism to accommodate
those concerns: Courts are to order partial
payments on aperiodic schedule if the
defendants financial circumstancesor other
interest[s] of justice so require. 3664(f)(3),
3572(d)(1). I would accordingly affirm the Fifth
Circuits holding that the District Court must
enter a restitutionorder reflecting the full amount
of [Amys] losses, In re Amy Unknown, 701 F.
3d 749, 774 (2012), and instruct the court to
consider a periodic payment schedule on remand.
I
A
6. There are two distinct but related questions in
this case: First, whether Parolines conduct bears
a sufficient causal nexus to Amys harm, and
second, if such a nexus exists,how much
restitution Paroline should be required to pay.
Beginning with causation, I agree with the
majority that proximate causation is beyond
dispute because the medical and economic losses
suffered by Amy are direct and foreseeable
results of child-pornography crimes. Ante, at 12;
accord, ante, at 3 (ROBERTS, C. J., dissenting).
Law Animated World, 31 August 2017
F-84 Paroline v. United States, Et al. [US-SC: Sotomayor J dissenting]
The real issue, then, is the proper standard of
causation in fact. Ante, at 12 (majority opinion).
7. The majority and I share common ground on
much of this issue. We agree that the ordinary
way to prove causein-fact is to show that a result
would not have occurred but for the
defendants conduct. Burrage v. United States,
571 U. S. ___, ___ (2014) (slip op., at 6). We also
agree that strict but-for causality is not
always required, and that alternative standards
of factual causation are appropriate where there
is textual or contextual reason to conclude as
much. Ante, at 13, 21 (quoting Burrage, 571 U.
S., at ___ (slip op., at 8, 10). And most
importantly, we agree that there are ample
reasons toreject a strict but-for causality
requirement in 2259. See ante, at 21.
8. Starting with the text, 2259 declares that a
court shallorder restitution for any offense under
this chapter. The possession of child
pornography, 2252, is an offenseunder the
relevant chapter, and the term shall createsan
obligation impervious to judicial discretion,
Lexecon Inc. v. Milberg Weiss Bershad Hynes &
Lerach, 523 U. S. 26, 35 (1998). So the text could
not be clearer: A court must order restitution
against a person convicted of possessing child
pornography. Section 2259(b)(4) underscoresthis
directive by declaring that [t]he issuance of a
restitution order under this section is mandatory.
And the statutes titlemandatory restitution
reinforces it further still.
9. Interpreting 2259 to require but-for causality
would flout these simple textual commands. That
is because a showing of but-for causation cannot
be made in this case and many like it. Ante, at
12. Even without Parolines offense, it is a
regrettable fact that thousands would have
viewed and would in the future view [Amys]
images, such that it cannot be shown that her
trauma and attendant losses would have been any
different but for Parolin[e]. Id., at 13. A but-for
requirement would thus make restitution under
2259 the opposite of mandatory; it would
preclude restitution to the victim of the typical
Law Animated World, 31 August 2017
(2017) 2 LAW
child pornography offense for the nonsensical
reason that the child has been victimized by too
many.
10. Such an approach would transform 2259 into
something unrecognizable to the Congress that
wrote it. When Congress passed 2259 in 1994, it
was common knowledge that child pornography
victims suffer harm at the hands of numerous
offenders who possess their images in
common,whether in print, film, or electronic
form. See, e.g., Shouvlin, Preventing the Sexual
Exploitation of Children:A Model Act, 17 Wake
Forest L. Rev. 535, 544 (1981) (describing the
enormous number of magazines and hundreds
of films produced each year depicting thesexual
abuse of children, which were circulated to untold
numbers of offenders through a well-organized
distribution system [that] ensures that even the
small towns have access to [the] material);
Doyle, FBI Probing Child Pornon Computers,
San Francisco Chronicle, Dec. 5, 1991, p. A23
(describing complaint that child pornographic
photographs were circulating via the America
On-Line computer service). Congress was also
acutely aware of thesevere injuries that victims of
child pornography suffer at the hands of criminals
who possess and view the recordedimages of
their sexual abuse. Congress found, for example,
that the continued existence and circulation of
childpornography images causes the child
victims of sexual abuse continuing harm by
haunting those children infuture years. Child
Pornography Prevention Act of 1996,121, 110
Stat. 300926, Congressional Findings (2), notes
following 18 U. S. C. 2251 (hereinafter 2251
Findings). It is inconceivable that Congress
would have imposed amandatory restitution
obligation on the possessors who contribute to
these continuing harm[s], ibid., onlyto direct
courts to apply a but-for cause requirementthat
would prevent victims from actually obtaining
any recovery.
11. There is, of course, an alternative standard for
determining cause-in-fact that would be
consistent with thetext of 2259 and the context
38
(2017) 2 LAW Paroline v. United States, Et al. [US-SC: Sotomayor J dissenting]
in which it was enacted:aggregate causation. As
the majority points out, aggregate causation was,
no less than the but-for test itself, apart of the
background legal tradition against which
Congress legislated. Ante, at 21. And under this
standard, [w]hen the conduct of two or more
actors is so related to an event that their
combined conduct, viewed as a whole, is a but-
for cause of the event, and application of the but-
for rule to them individually would absolve all of
them, the conduct of each is a cause in fact of the
event. Ante, at 14 (quoting W. Keeton, D.
Dobbs, R. Keeton, & D.Owen, Prosser and
Keeton on Law of Torts 41, p. 268 (5thed. 1984)
(hereinafter Prosser and Keeton)).1 Paroline and
his fellow offenders plainly qualify as factual
causes under this approach because Amys losses
would not have occurred but for their combined
conduct, and because applying the but-for rule
would excuse them all.
12. There is every reason to think Congress
intended 2259 to incorporate aggregate
causation. Whereas a but-for requirement would
set 2259s mandatory restitutioncommand on
a collision course with itself, the aggregate
causation standard follows directly from the
statute. Section 2259 is unequivocal; it offers no
safety-in-numbers exception for defendants who
possess images of a childsabuse in common with
other offenders. And the aggregate causation
standard exists to avoid exactly that kind of
exception. See Prosser and Keeton 41, at 268-
269 (aggregate causation applies where multiple
1
The Fifth Circuit recognized this standard more than 60
years ago when it observed that [a]ccording to the
great weight of authoritywhere the concurrent or
successive acts or omissions of two or more persons,
although acting independently of each other, are in
combination, the direct or proximate cause of a single
injury, any of them maybe held liable even though
his act alone might not have caused the entire injury, or
the same damage might have resulted from the act ofthe
other tort-feasor[s]. Phillips Petroleum Co. v. Hardee,
189 F. 2d 205, 212 (1951) (quoting 38 Am. Jur.
Negligence 257, p. 946 (1941)).
39
F-85
defendants bea[r] a like relationship to a
victims injury, and where [e]ach seeks to
escape liability for a reason that, if recognized,
would likewise protect each other defendant in
thegroup, thus leaving the [victim] without a
remedy in the faceof the fact that had none of
them acted improperly the [victim] would not
have suffered the harm); Restatement (Third) of
Torts: Liability for Physical and EmotionalHarm
27, Comment f, p. 380 (2005) (similar).
13. At bottom, Congress did not intend 2259 to
create asafe harbor for those who inflict upon
their victims the proverbial death by a thousand
cuts. Given the very nature of the child
pornography market in which a large class of
offenders contribute jointly to their victims
harmby trading in their images a but-for
causation requirement would swallow 2259s
mandatory restitutioncommand, leaving victims
with little hope of recovery.That is all the textual
[and] contextual reason necessaryto conclude
that Congress incorporated aggregate causation
into 2259. Burrage, 571 U. S., at ___ (slip op.,
at 8).
B
14. The dissent of THE CHIEF JUSTICE
suggests that a contrary conclusion is compelled
by our decision in Hughey v. United States, 495
U. S. 411 (1990). Hughey involved a defendant
who had been convicted of a single count of
unauthorized credit card use, which resulted in
$10,412 in losses. Id., at 414. The Government
nonetheless re- quested restitution for additional
losses based on different counts in the indictment
that the Government had agreedto dismiss. Id., at
413. We declined the Governments request,
reasoning that restitution was to be tied to the
offense of conviction. Id., at 418.
15. That commonsense holding, of course, casts
no doubt on the ordinary practice of requiring
restitution for lossescaused by an offense for
which a defendant is convicted, where the loss is
the product of the combined conduct ofmultiple
offenders. What troubles my colleagues in
Law Animated World, 31 August 2017
F-86 Paroline v. United States, Et al. [US-SC: Sotomayor J dissenting]
thiscase, then, is not the concept of restitution in
cases involving losses caused by more than one
offender. Their objection is instead to restitution
in cases where the victims losses are caused by
too many offenders. As THE CHIEF JUSTICE
puts it, Congress wrote a law that would enable
Amy to recover if only her images had been
circulated bya single distributor to just a
handful of possessors. Ante, at 67. But
because she has been victimized by numerous
distributors and thousands of possessors, shegets
nothing. It goes without saying that Congress did
not intend that result.
16. My colleagues in dissent next assert that no
restitution may be awarded because of 3664(e), which
describes the Governments burden of showing the loss
sustained by a victim as a result of the offense. But
that provision is nothing close to a direct
answer to this case. Ante, at 4. It simply restates
the question: What should a court do when the
losses sustained by a victim are the result of the
[defendants] offense, 3664(e), but that result is
produced in combination with the offenses of
others? One answer is that the defendants
offense is a cause-in-fact only of losses for which
it was a but-for cause. A second is that the
offense is a cause-in-fact of losses for which it
was part ofthe aggregate cause. The former would
preclude restitution in cases like this; the latter
would allow it. Given Congress mandatory
command that courts shall order restitution for any
offense, 2259(a), (b)(4), it is beyond clear which
2
answer Congress chose.
2 fair analogybecause they involve a group of individuals
THE CHIEF JUSTICEs dissent elides the distinction
between aggregate and but-for causation. Despite
assum[ing], for purposes of argument, that 2259
incorporates aggregate causation, the dissent nevertheless
applies but-for causation to determine the full amount
of losses Paroline must pay. See ante, at 5, and n. 2
(arguing that Paro- line can only be asked to pay the full
amount of the losses he caused, not losses that he and
others combined to cause). My dissenting colleagues
cannot have it both ways. Either 2259 incorporates
aggregate causation (in which case the full amount of
Amys losses is all of the losses aggregately caused by
Paroline and like offenders), or itrequires but-for
causation (in which case Amy gets nothing).
Law Animated World, 31 August 2017
(2017) 2 LAW
17. THE CHIEF JUSTICEs dissent also fails to
contend with the ramifications of the suggestion
that 3664(e) foreclosesentry of restitution in
cases where a victim suffers indivisible losses as
a result of the aggregate conduct of numerous
offenders. It claims that this reading of 3664(e)
will work just fine for common crimes such
as assault. Ante, at 56. But what about a victim
of a vicious gangassault, where a single
offenders conduct cannot be labeled a but-for
cause of any discrete injury? Such offenses are,
unfortunately, all too common. See, e.g.,
Wheelock v. United States, 2013 WL 2318145, *2
(ED Wisc., May 28,2013) (defendant convicted
for his participation in a gangrape of a 13-year-
old victim in which he and several other
individuals had provided alcohol to the girl and,
after shebecame intoxicated and unconscious,
sexually assaulted her); United States v. Homer
B., 1990 WL 79705 (CA9, June 14, 1990)
(similar). I would have thought it beyondrefute
that the victim of such a tragic offense would
beentitled to restitution even though none of her
losses may be attributed solely to any individual
defendant. If the opinion of THE CHIEF
JUSTICE is in agreement, it does not explain
why the result should be any different for victims
like Amy, who have suffered heart wrenching
losses at the hands of thousands of offenders
rather than a few.3
3
THE CHIEF JUSTICE objects that gang assaults are not a
acting together, with acommon plan. Ante, at 6, n. 3.
But individuals need not act togetherto trigger joint and
several liability; such liability applies equally to multiple
actors who independently commit intentional torts that
combine to produce an indivisible injury. Infra, at 1114.
And in any event, the offenders at issue in this case do act
together, with the common end of trafficking in the
market for images of child sexualabuse. See infra, at 12
13. While these offenders may not be physically in the
same room when they commit their crimes, there is no
reason to read 2259(b)(4)s mandatory restitution
command out of the statute for child abusers who hide
behind the anonymity of a computer screen.
40
(2017) 2 LAW Paroline v. United States, Et al. [US-SC: Sotomayor J dissenting]
II
18. The majority accepts aggregate causation at
least to anextent, ruling that 2259 requires
possessors to pay someamount of restitution even
though it is impossible to say that they caused
a particular amount of [a victims] losses . . . by
recourse to a more traditional [but-for] causal in-
quiry. Ante, at 21. But the majority resists the
strictlogic of aggregate causation for fear that
doing so would produce the striking outcome
of an award against an individual possessor for
the entire aggregately caused amount. Ante, at
1516. The majority accordingly holds that a
court applying 2259 should order restitution in
anamount that comports with the defendants
relative contribution to the victims general
losses. Ante, at 21. The majoritys apportionment
approach appears to be asensible one. It would,
for instance, further the goal ofproportionality in
sentencing, avoid turning away victims
emptyhanded, and spread payment among
offenders. Ante, at 2425. But it suffers from a far
more fundamental problem: It contravenes the
language Congressactually used. Section 2259
directs courts to enter restitution not for a
proportional or relative amount, but for the
full amount of the victims losses. 2259(b)(1).
That command is unequivocal, and it is buttressed
by the tortlaw tradition of joint and several
liability within which Congress legislated.
A compensation, indemnity, orrestitution for harms
19. Once a defendant is found to bear a sufficient
causal nexus to a victims harm, 2259 provides a
straightforward instruction on how much
restitution a court is to order: The order of
restitution under this section shall direct the
defendant to pay the victim . . . the full amountof
the victims losses. 2259(b)(1). Because the
word shall imposes a discretionless
obligatio[n], Lopez v. Davis, 531 U.S. 230, 241
(2001), a court considering a 2259 restitution request
has no license to deviate from the statutes command. It
must enter an order for the full amount of the victims
losses, regardless of whether other defendants may
have contributed to the same victims harm.
41
F-87
20. If there were any doubt on the matter,
Congress eliminated it in 2259(b)(4)(B)(ii),
which bars a court fromdeclin[ing] to issue [a
restitution] order under this section on the
ground that a victim is entitled to receive
compensation for his or her injuries from the
proceeds ofinsurance or any other source. One
other source from which a victim would be
entitled to receive compensationis, of course,
other offenders who possess images of her sexual
abuse. It is unthinkable that Congress would have
expressly forbidden courts to award victims no
restitution because their harms have been
aggregately caused by many offenders, only to
permit restitution orders for asingle penny for the
same reason.
B
21. As the majority recognizes, Congress did not
draft 2259 in a vacuum; it did so in the context
of settled tort law traditions. See ante, at 1415;
see also Meyer v. Holley, 537 U. S. 280, 285
(2003) (Congress legislates against alegal
background of ordinary tort-related principles).
Section 2259 functions as a tort statute, one
designed to ensure that victims will recover
compensatory damages in an efficient manner
concurrent with criminal proceedings. See
Restatement of Torts 901, p. 537 (1939) (the
purposesof tort law include to give
and to punish wrongdoers); Dolan v. United
States, 560 U. S. 605, 612 (2010) (the substan-
tive purpose of the related Mandatory Victims
RestitutionAct of 1996, 3664, is to ensure that
victims of a crime receive full restitution). And
the nature of the child pornography industry and
the indivisible quality of the injuries suffered by
its victims make this a paradigmatic situation in
which traditional tort law principles would
require joint and several liability. By requiring
restitution for the full amount of the victims
losses, 2259(b)(1), Congress did not depart
from these principles; it embraced them.
Law Animated World, 31 August 2017
F-88 Paroline v. United States, Et al. [US-SC: Sotomayor J dissenting]
22. First, the injuries caused by child
pornography possessors are impossible to
apportion in any practical sense. It cannot be said,
for example, that Parolines offense alone
required Amy to attend five additional minutes of
therapy, or that it caused some discrete portion of
her lost income. The majority overlooks this fact,
ordering courts to surmise some circumscribed
amount of loss based on a list of factors. Ante, at
21, 2223; see also ante, at 710 (ROBERTS, C.
J., dissenting). Section 2259s full restitution
requirement dispenses with this guesswork,
however, and in doing so it harmonizes with the
settled tort lawtradition concerning indivisible
injuries. As this Court explained this rule in
Edmonds v. Compagnie Generale Transatlantique,
443 U.S. 256 (1979), unless a plaintiffsinjury is
divisible and the causation of each part can
beseparately assigned to each tortfeasor, the rule
is that a tortfeasor is not relieved of liability for
the entire harm he caused just because anothers
negligence was also afactor in effecting the
injury. Id., at 260, n. 8; see also Prosser and
Keeton 52, at 347 (joint and several liability
applies to injuries that are obviously incapable
of anyreasonable or practical division); Feneff v.
Boston & Maine R. Co., 196 Mass. 575, 580, 82
N. E. 705, 707 (1907) (similar).
23. Second, Congress adopted 2259 against the
backdrop ofthe rule governing concerted action
by joint tortfeasors, which specifies that [w]here
two or more [tortfeasors] actin concert, it is well
settled . . . that each will be liable for the entire
result. Prosser and Keeton 52, at 346. The
degree of concerted action required by the rule is
notinordinate; if one person acts to produce
injury with fullknowledge that others are acting
in a similar manner and that his conduct will
contribute to produce a single harm,a joint tort
has been consummated even when there is
noprearranged plan. 1 F. Harper, F. James, & O.
Gray, TheLaw of Torts 10.1, p. 699 (1st ed.
1956) (hereinafter 1Harper and James); see also,
e.g., Troop v. Dew, 150 Ark. 560, 565, 234 S. W.
992, 994 (1921) (defendants jointly liable for
Law Animated World, 31 August 2017
(2017) 2 LAW
uncoordinated acts where they were working to
a common purpose).
24. Child pornography possessors are jointly
liable underthis standard, for they act in concert
as part of a globalnetwork of possessors,
distributors, and producers who pursue the
common purpose of trafficking in images ofchild
sexual abuse. As Congress itself recognized,
possessors of such material are an integral part
of the market for the sexual exploitative use of
children. 2251 Finding(12). Moreover,
although possessors like Paroline may not be
familiar with every last participant in the market
for child sexual abuse images, there is little doubt
that theyact with knowledge of the inevitable
harms caused by their combined conduct.
Paroline himself admitted to possessing between
150 and 300 images of minors engaged in
sexually explicit conduct, which he downloaded
from other offenders on the Internet. See 672 F.
Supp. 2d 781, 783; App. 146. By communally
browsing and downloading Internet child
pornography, offenders like Paroline fuelthe
process that allows the industry to flourish.
OConnell, Paedophiles Networking on the
Internet, in Child Abuse on the Internet: Ending
the Silence 77 (C. Arnaldo ed. 2001). Indeed, one
expert describes Internet child pornography
networks as an example of a complex criminal
conspiracy, ibid. the quintessential concerted
action to which joint and several liability
attaches.
25. Lastly, 2259s full restitution requirement
conforms to what Congress would have understood to
be the uniform rule governing joint and several liability
for intentional torts. Under that rule, [e]ach person
who commits a tortthat requires intent is jointly
and severally liable for any indivisible injury
legally caused by the tortious conduct.
Restatement (Third) of Torts: Apportionment of
Liability 12, p. 110 (2007). There is little doubt
that the possession of images of a child being
sexually abused would amount to an intentional
invasion of privacy tortand an extreme one at
that. See Restatement (Second) of Torts 652B,
42
(2017) 2 LAW Paroline v. United States, Et al. [US-SC: Sotomayor J dissenting]
p. 378 (1976) (One who intentionally
intrudes,physically or otherwise, upon [anothers]
private affairs orconcerns, is subject to liability . .
. if the intrusion would be highly offensive to a
reasonable person).4
26. Section 2259s imposition of joint and several
liability makes particular sense when viewed in
light of this intentional tort rule. For at the end of
the day, the question ofhow to allocate losses
among defendants is really a choice between
placing the risk of loss on the defendants
(sinceone who is caught first may be required to
pay more than his fair share) or the victim (since
an apportionment regime would risk preventing
her from obtaining full recovery). Whatever the
merits of placing the risk of loss on a victim in
the context of a negligence-based offense, Con-
gress evidently struck the balance quite
differently in thiscontext, placing the risk on the
morally culpable possessors of child pornography
and not their innocent child victims.
C
27. Notwithstanding 2259s text and the
longstanding tort law traditions that support it, the
majority adopts anapportionment approach based
on its concern that joint and several liability
might lead to unfairness as applied to individual
defendants. See ante, at 1522. The majorityfinds
this approach necessary because 2259 does not
provide individual defendants with the ability to
seek contribution from other offenders. Ante, at
4
Possession of child pornography under 2252 constitutes
an intentional tort notwithstanding that the offense
requires a mens rea of knowledge. See 2252(a)(3)(B)
(punishing one who knowingly sells orpossesses child
pornography). One is said to act knowingly if he is
aware that [a] result is practically certain to follow
from his conduct. United States v. Bailey, 444 U. S.
394, 404 (1980). That definition is, if anything, more
exacting than the kind of intentrequired for an
intentional tort under the Restatement, which
definesintent to include situations where an actor
believes that . . . consequences are substantially certain
to result from [his act]. Restatement (Second) of Torts
8A, p. 15 (1965).
43
F-89
1718. I agreethat the statute does not create a
cause of action for contribution, but unlike the
majority I do not think the absence of
contribution suggests that Congress intended the
phrase full amount of the victims losses to
mean something less than that. For instead of
expending judicialresources on disputes between
intentional tortfeasors,Congress crafted a
different mechanism for preventing inequitable
treatment of individual defendantsthe use
ofperiodic payment schedules.
28. Section 2259(b)(2) directs that [a]n order of
restitution under this section shall be issued and
enforced in accordance with section 3664.
Section 3664(f)(1)(A) in turnreiterates 2259s
command that courts shall order restitution to
each victim in the full amount of each victims
losses. But 3664 goes on to distinguish
between the amount of restitution ordered and the
schedule on which payments are to be made.
Thus, 3664(f)(2) states that a court shall . . .
specify in the restitution order . . . theschedule
according to whic[h] the restitution is to be paid,
and 3664(f)(3)(A) provides that [a] restitution
order may direct the defendant to make a single,
lump sum paymentor partial payments at
specified intervals. Critically, inchoosing
between lump-sum and partial payments,
courtsshall consider the financial resources
and other assets of the defendant, along with
any financial obligationsof the defendant,
including obligations to dependents.
3664(f)(2)(A), (C).
29. Applying these factors to set an appropriate
payment schedule in light of any individual child
pornography possessors financial circumstances
would not be difficult; indeed, there is already a
robust body of case law clarifying how payment
schedules are to be set under 3664(f).For
example, Courts of Appeals have uniformly
found it an abuse of discretion to require
defendants to make immediate lump-sum
payments for the full amount of a restitution
award when they do not have the ability to do so.
In such cases, Congress has instead required
Law Animated World, 31 August 2017
F-90 Paroline v. United States, Et al. [US-SC: Sotomayor J dissenting]
courts to impose periodic payment schedules.
See, e.g., United States v. McGlothlin, 249 F. 3d
783, 784 (CA8 2001) (reversing lump-sum
payment order where defendant had no abilityto
pay the restitution immediately, and requiring
District Court to set a periodic payment
schedule); United States v. Myers, 198 F. 3d 160,
168169 (CA5 1999) (same). The existing body
of law also provides guidance as to proper
payment schedules. Compare, e.g., United States
v. Calbat, 266 F. 3d 358, 366 (CA5 2001)
(annual payment of $41,000 an abuse of
discretion where defendant had a net worth of
$6,400 and yearly income of $39,000), with
United States v. Harris, 60 F. Supp. 2d 169, 180
(SDNY 1999) (setting payment schedule for the
greater of $35 per month or 10% of defendants
gross income).
30. Section 3664s provision for partial periodic
paymentsthus alleviates any concerns of
unfairness for the vast number of child
pornography defendants who have modest
financial resources. A more difficult challenge is
presented, however, by the case of a wealthy
defendant who would be able to satisfy a large
restitution judgment in an immediate lump-sum
payment. But the statute is fully capable of
ensuring just results for these defendants, too. For
in addition to an offenders financial
circumstances, 3664permits courts to consider
other factors in the interest of justice when
deciding whether to impose a payment schedule.
See 3664(f)(2) (district court shall specify
payment schedule pursuant to section 3572);
3572(d)(1) (restitution order shall be payable in
periodic installmentsif in the interest of
justice).
31. Accordingly, in the context of a restitution
order againsta wealthy child pornography
possessor, it would likely bein the interest of
justice for a district court to set a payment
schedule requiring the defendant to pay
restitutionin amounts equal to the periodic losses
that the district court finds will actually be
incurred by the victim, 2259(b)(3), in the
Law Animated World, 31 August 2017
(2017) 2 LAW
given timeframe. In this case, for example,
Amys expert estimates that she will
sufferapproximately $3.4 million in losses from
medical costsand lost income over the next 60
years of her life, or approximately $56,000 per
year. If that estimate is deemed accurate, a court
would enter a restitution order against awealthy
defendant for the full $3.4 million amount of
Amys losses, and could make it payable on an
annualschedule of $56,000 per year. Doing so
would serve the interest of justice because the
periodic payment schedule would allow the
individual wealthy defendants ultimate burden to
be substantially offset by payments made byother
offenders,5 while the entry of the full
restitutionaward would provide certainty to Amy
that she will be made whole for her losses.
***
32. Although I ultimately reach a different
conclusion as tothe proper interpretation of the
statutory scheme, I do appreciate the caution with
which the Court has announced its approach. For
example, the Court expressly rejects the possibility of
district courts entering restitution orders for token or
nominal amount[s] Ante, at 21. That point is important
because, if taken out of context, aspects of the
Courts opinion might be construed otherwise.
For instance, the Court states that in estimating a
5
As the facts of this case show, the offset would be
significant. Between June 2009 and December 11, 2013,
Amy obtained restitution awards from 182 persons, 161
of whom were ordered to pay an amountbetween $1,000
and $530,000. See Restitution Awards for Amy Through
December 11, 2013, Lodging of United States. If these
offenders (and new offenders caught each month) were
instead ordered to paythe full amount of restitution in
periodic amounts according to theirfinancial means, a
wealthy defendants annual obligation would terminate
long before he would be required to pay anything close to
the full $3.4 million. For once a victim receives the full
amount of restitution, all outstanding obligations expire
because 2259 does not displace the settled joint and
several liability rule forbidding double recovery. See
Restatement (Second) of Torts 885(3) (1979), see also,
e.g., United States v. Nucci, 364 F. 3d 419, 423 (CA2
2004).
44
(2017) 2 LAW Paroline v. United States, Et al. [US-SC: Sotomayor J dissenting]
restitution amount, a district court may consider
the broader number of offenders involved (most
of whom will, of course, never be caught or
convicted). Ante, at 23. If that factor is given too
much weight, it could lead to ex- actly the type of
trivial restitution awards the Court disclaims.
Amys counsel has noted, for instance, that
inlight of the large number of persons who
possess her images, a truly proportional approach
to restitution would lead to an award of just $47
against any individual defendant. Brief for
Respondent Amy 65. Congress obviouslydid not
intend that outcome, and the Court wisely refuses
to permit it.1
33. In the end, of course, it is Congress that will have
the final say. If Congress wishes to recodify its full
restitution command, it can do so in language perhaps
even more clear than 2259s mandatory directive to
order restitution for the full amount of the victims
losses. Congress might amend the statute, for
example, to include the termaggregate causation.
Alternatively, to avoid the uncertainty in the
Courts apportionment approach, Congress might
wish to enact fixed minimum restitution amounts.
See, e.g., 2255 (statutorily imposed $150,000
minimumcivil remedy). In the meanwhile, it is my
hope that the Courts approach will not unduly
undermine the ability of victims like Amy to
recover for and from the unfathomable harms
they have sustained.
*****
1 with mere lip service. The same fate generally befell the
The Court mentions that Amy received roughly $6,000
from her uncle, the person responsible for abusing her
as a child. Ante, at 2. Care must be taken in
considering the amount of the award against Amys
uncle, however, ante, at 23, because as Amys expert
explained, Amy was back to normal by the end of
her treatment for the initial offense. App. 70. It was
chiefly after discovering, eight years later, that images
of her sexual abuse had spread on the Internet that
Amy suffered additional losses due to the realization
that possessors like Paroline were viewing them and
that the sexual abuse of her has never really ended.
Id., at 71.
45
F-91
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Law Animated World, 31 August 2017
F-92 ACLU v. Michael B. Mukasey, AG of the US. [US-CA: 3rd Circuit] (2017) 2 LAW

(2017) 2 LAW F-92 (US-CA-3rd Circuit) PHILADELPHIA GAY NEWS;

POWELL'S BOOKSTORES;
UNITED STATES SALON MEDIA GROUP, INC.;
COURT OF APPEALS PLANETOUT, INC.;
FOR THE THIRD CIRCUIT HEATHER CORINNA REARICK;
NERVE.COM, INC.;
No. 07-2539
AARON PECKHAM, d/b/a URBAN DICTIONARY;
ON WRIT OF CERTIORARI TO THE UNITED STATES
PUBLIC COMMUNICATORS, INC.;
COURT OF APPEALS FOR THE FIFTH CIRCUIT
DAN SAVAGE; SEXUAL HEALTH NETWORK
Tuesday, 22 JULY 2008
v.
AMERICAN CIVIL LIBERTIES *MICHAEL B. MUKASEY,
UNION & Ors. Petitioner
in his official capacity
versus as Attorney General of
MICHAEL B. MUKASEY, the United States
Attorney General of the U.S. Respondents. Michael B. Mukasey,

Citation: (2017) 2 LAW F-92
Appellant
*** *(Substituted as per FRAP 43(b))
PRECEDENTIAL On Appeal from the United States District Court
UNITED STATES COURT OF APPEALS for the Eastern District of Pennsylvania
(D.C. Civ. No. 98-cv-05591)
FOR THE THIRD CIRCUIT
Honorable Lowell A. Reed, District Judge
No. 07-2539
Argued June 10, 2008
AMERICAN CIVIL LIBERTIES UNION;
BEFORE: AMBRO, CHAGARES,
ANDROGYNY BOOKS, INC.,
and GREENBERG, Circuit Judges
d/b/a A DIFFERENT LIGHT BOOKSTORES;
(Filed: July 22, 2008)
AMERICAN BOOKSELLERS FOUNDATION
Catherine N. Crump
FOR FREE EXPRESSION;
Aden J. Fine
ADDAZI, INC.,
Christopher A. Hansen (argued)
d/b/a CONDOMANIA;
Benjamin E. Wizner
ELECTRONIC FRONTIER FOUNDATION;
American Civil Liberties Union
ELECTRONIC PRIVACY INFORMATION 18th Floor
CENTER; 125 Broad Street
FREE SPEECH MEDIA; New York, NY 10004-0000
Christopher R. Harris

Courtesy: www.supremecourt.gov. The syllabus constitutes Jeroen van Kwawegen

no part of the Courts opinion but is prepared by the
Katherine E. Marshall
Reporter of Decisions for the convenience of the reader.
Then, this opinion is subject to formal revision before Latham & Watkins
publication in the preliminary print of the United States 885 Third Avenue
Reports. Readers are requested to notify the Reporter of Suite 1000
Decisions, Supreme Court of the United States, New York, NY 10022-4802
Washington, D.C. 20543, of any typographical or other
Attorneys for Appellees
formal errors, in order that corrections may be made
before the preliminary print goes to press. Paragraph Jeffrey S. Bucholtz
numbers and emphases in bold ours - IMS. Acting Assistant Attorney General

Law Animated World, 31 August 2017 46

(2017) 2 LAW ACLU v. Michael B. Mukasey, AG of the US. [US-CA: 3rd Circuit] F-93

Patrick L. Meehan OPINION OF THE COURT

United States Attorney GREENBERG, Circuit Judge.
Scott R. McIntosh I. INTRODUCTION
United States Department of Justice 1. This matter comes on before this Court on an
Civil Division appeal from an order of the District Court entered
Room 7259 March 22, 2007, finding that the Child Online
950 Pennsylvania Avenue, N.W. Protection Act (COPA), 47 U.S.C. 231, facially
Washington, DC 20530-0000 violates the First and Fifth Amendments of the
Charles W. Scarborough (argued) Constitution and permanently enjoining the
Attorney General from enforcing COPA. The
United States Department of Justice
Government challenges the District Courts conclusions
Appellate Section that: (1) COPA is not narrowly tailored to advance the
Room 7244 Governments compelling interest in protecting children
950 Pennsylvania Avenue, N.W. from harmful material on the World Wide Web
Washington, DC 20530-0000 (Web); (2) there are less restrictive, equally effective
alternatives to COPA; and (3) COPA is impermissibly
Attorneys for Appellant overbroad and vague. We will affirm.
David P. Affinito
II. FACTS AND PROCEDURAL HISTORY
DellItalia, Affinito, & Santola
2. It is useful at the outset to set forth a short
18 Tony Galento Plaza
history of the background of COPA and an
Orange, NJ 07050-0000
explanation of the relationship between the Web
Attorneys for Amicus Curiae Morality in Media, and the Internet. Congress enacted COPA to protect
Inc. minors from exposure to sexually explicit material on
Steven W. Fitschen the Web. The Web is just one portion of the Internet,
The National Legal Foundation which is an interactive medium based on a
2224 Virginia Beach Boulevard decentralized network of computers. American Civil
Suite 204 Liberties Union v. Gonzales, 478 F. Supp. 2d
Virginia Beach, VA 23454-0000 775, 781 (E.D. Pa. 2007) (Gonzales). The
Attorney for Amicus Curiae National Legal Internet may also be used to engage in other activities
such as sending and receiving emails, trading files,
Foundation
exchanging instant messages, chatting online, streaming
Robert Corn-Revere audio and video, and making voice calls. Id. The
Davis, Wright & Tremine District Court described how the Web functions:
1919 Pennsylvania Ave., N.W. On the Web, a client program called a Web
Suite 200 browser retrieves information from the Internet,
Washington, D.C. 20005-0000 such as Web pages and other computer files
Attorneys for Amici Curiae Article 19, Reporters using their network addresses and displays them,
Without Borders, and World Press Freedom typically on a computer monitor . Web pages,
which can contain, inter alia, text, still and
John B. Morris, Jr. moving picture files, sound files, and computer
Center for Democracy & Technology scripts, are often arranged in collections of
1634 I Street, N.W. related material called Web sites, which consist
Suite 1100 of one or more Web pages. It is estimated that
Washington, D.C. 20006-0000 there are between 25 and 64 billion Web pages on the
surface portion of the Web (Surface Web) that is,
Attorneys for certain amici curiae
the portion of the Web that is capable of being indexed
*** by search engines. These Web pages may be displayed

47 Law Animated World, 31 August 2017

F-94 ACLU v. Michael B. Mukasey, AG of the US. [US-CA: 3rd Circuit]
on a monitor screen and, thus, the content may be seen
by anyone operating a computer or other Internet
capable device which is properly connected to the
Internet. Id. at 781-82 (citations omitted).
The District Court indicated that [a] little more
than 1 percent of all Web pages on the Surface Web
(amounting to approximately 275 million to 700
million Web pages) are sexually explicit. Id. at
788.
3. COPA provides for civil and criminal penalties
including up to six months imprisonment for anyone
who knowingly posts material that is harmful to
minors on the Web for commercial purposes. 47
U.S.C. 231(a)(1). Intentional violations result
in heavier fines. Id. at 231(a)(2). [M]aterial
that is harmful to minors includes any
communication that is obscene or that:
(A) the average person, applying contemporary
community standards, would find, taking the
material as a whole and with respect to minors,
is designed to appeal to, or is designed to
pander to, the prurient interest; (B) depicts,
describes, or represents, in a manner patently
offensive with respect to minors, an actual or
simulated sexual act or sexual contact, an
actual or simulated normal or perverted sexual
act, or a lewd exhibition of the genitals or post-
pubescent female breast; and (C) taken as a
whole, lacks serious literary, artistic, political,
or scientific value for minors.
Id. at 231(e)(6). The term minor means any
person under 17 years of age. Id. at 231(e)(7).
A person makes a communication for
commercial purposes only if the person when
making the communication is engaged in the
business of making such communications. Id. at
231(e)(2)(A). A person is engaged in the
business when the person:
devotes time, attention, or labor to such
activities, as a regular course of such persons
trade or business, with the objective of earning
a profit as a result of such activities [and]
only if the person knowingly causes [or
solicits] the material that is harmful to minors
to be posted on the World Wide Web .
Law Animated World, 31 August 2017
(2017) 2 LAW
Id. at 231(e)(2)(B). A Web publisher can assert
an affirmative defense to prosecution under COPA
if he or she:
has restricted access by minors to material that is
harmful to minors (A) by requiring use of a
credit card, debit account, adult access code, or
adult personal identification number; (B) by
accepting a digital certificate that verifies age; or
(C) by any other reasonable measures that are
feasible under available technology.
Id. at 231(c)(1).
4. Congress enacted COPA after the Supreme Court
declared Congresss first attempt to protect minors
from exposure to sexually explicit materials on the Web
to be unconstitutional. See Reno v. American Civil
Liberties Union, 521 U.S. 844, 117 S.Ct. 2329
(1997) (holding that the Communications
Decency Act violated the First Amendment). The
day after COPA became law on October 21,
1998, plaintiffs, consisting of speakers, content
providers, and users of the Web, filed this action
in the District Court seeking an injunction barring
COPAs enforcement. On February 1, 1999, the
District Court preliminarily enjoined the Government
from enforcing COPA pending a trial on the merits.
American Civil Liberties Union v. Reno, 31 F.
Supp. 2d 473 (E.D. Pa. 1999). In its opinion the
court pointed out, among many other things, that
the plaintiffs suggested that filtering and blocking
technology was an example of a more efficacious and
less restrictive means to shield minors from harmful
materials than COPA but that the final
determination of whether this was so must await
trial on the merits. Id. at 497.
5. The Government appealed but we affirmed the
District Courts order after concluding that the
community standards language in section 231(e)(6)(A)
by itself rendered COPA unconstitutionally overbroad.
American Civil Liberties Union v. Reno, 217 F.3d
162, 173 (3d Cir. 2000) (ACLU I). The
Government then sought and obtained certiorari
and the Supreme Court vacated our decision and
remanded the case to us for further proceedings
because the Court concluded that the community
standards language did not, standing alone,
make the statute unconstitutionally overbroad.
48
(2017) 2 LAW ACLU v. Michael B. Mukasey, AG of the US. [US-CA: 3rd Circuit]
Ashcroft v. American Civil Liberties Union, 535
U.S. 564, 585, 122 S.Ct. 1700, 1713 (2002).
6. On the remand we ruled that, for a variety of
reasons, COPA was not narrowly tailored to serve the
Governments compelling interest in preventing minors
from being exposed to harmful material on the Web,
was not the least restrictive means available to effect
that interest, and was substantially overbroad. American
Civil Liberties Union v. Ashcroft, 322 F.3d 240, 251-
71 (3d Cir. 2003) (ACLU II). Consequently, we
again affirmed the District Courts order granting the
preliminary injunction. Id. at 271. The Government
again sought and obtained certiorari but this time
the Supreme Court affirmed our decision though
it remanded the case to the District Court for a
trial on the merits. The Court contemplated that
the record would be updated on the remand to
reflect the then current technological developments
and to account for any changes in the legal
landscape. The Court further directed that the
District Court determine whether Internet content
filters are more effective than enforcement of the COPA
restrictions or whether other possible alternatives are
less restrictive and more effective than COPA to
effectuate Congresss intention. Ashcroft v. American
Civil Liberties Union, 542 U.S. 656, 670-73, 124
S.Ct. 2783, 2794-95 (2004).
7. After a bench trial, the District Court on March
22, 2007, issued extensive findings of fact,
determined that plaintiffs have standing to
maintain this action, and concluded that:
COPA facially violates the First and Fifth
Amendment rights of the plaintiffs because:
(1) COPA is not narrowly tailored to the
compelling interest of Congress; (2) defendant
has failed to meet his burden of showing that
COPA is the least restrictive and most
effective alternative in achieving the
compelling interest; and (3) COPA is
impermissibly vague and overbroad.
Gonzales, 478 F. Supp. 2d at 821. The District
Court permanently enjoined the Attorney General
and his officers, agents, employees, and attorneys,
and those persons in active concert or participation
with him who received actual notice of its order,
49
F-95
from enforcing or prosecuting matters premised
upon COPA at any time for any conduct. Id.
8. The Government then filed a timely appeal to
this Court.
III. JURISDICTION AND STANDARD OF REVIEW
9. The District Court had jurisdiction under 28 U.S.C.
1331 and we have jurisdiction pursuant to 28 U.S.C.
1291. We review the constitutionality of a federal
statute and related questions of statutory interpretation
de novo. Abdul-Akbar v. McKelvie, 239 F.3d 307,
311 (3d Cir. 2001). Although we generally review
a district courts factual findings for clear error,
[i]n the First Amendment context, reviewing courts
have a duty to engage in a searching, independent
factual review of the full record. United States v.
Scarfo, 263 F.3d 80, 91 (3d Cir. 2001). The
Supreme Court has emphasized that an appellate
court has an obligation to make an independent
examination of the whole record in order to make sure
that the judgment does not constitute a forbidden
intrusion on the field of free expression. Bose Corp.
v. Consumers Union of United States, Inc., 466 U.S.
485, 499, 104 S.Ct. 1949, 1958 (1984) (quoting
New York Times Co. v. Sullivan, 376 U.S. 254,
284-86, 84 S.Ct. 710, 728-29 (1964)).
IV. DISCUSSION
10. The First Amendment provides that Congress
shall make no law abridging the freedom of speech,
or of the press . U.S. Const. amend. I. COPA
criminalizes a category of speech harmful to
minors material that is constitutionally protected
for adults. Because COPA is a content-based
restriction on protected speech, it is presumptively
invalid and the Government bears the burden of
showing its constitutionality. Ashcroft, 542 U.S. at
660, 124 S.Ct. at 2788.
11. The Government challenges the District
Courts decision that COPA facially violated
plaintiffs First Amendment rights because it was
not narrowly tailored to further a compelling
government interest, i.e., was not the least
restrictive alternative to advance that interest, the
prevention of minors from being exposed to
Law Animated World, 31 August 2017
F-96 ACLU v. Michael B. Mukasey, AG of the US. [US-CA: 3rd Circuit]
harmful material on the Web, and was
impermissibly vague and overbroad.1
A. Law-of-the-Case Doctrine
12. Before we reach the merits of the case, we
must address the effect of our prior decision in
ACLU II on this appeal, as the presence of that
decision may make the law-of-the-case doctrine
relevant here. Under the law-of-the-case doctrine,
when a court decides upon a rule of law, that decision
should continue to govern the same issues in subsequent
stages in the same case. Christianson v. Colt Indus.
Operating Corp., 486 U.S. 800, 816, 108 S.Ct.
2166, 2177 (1988) (quoting Arizona v. California,
460 U.S. 605, 618, 103 S.Ct. 1382, 1391 (1983)).
This rule of practice promotes the finality and
efficiency of the judicial process by protecting against
the agitation of settled issues. Id. (citation and
quotation marks omitted).
13. We recently addressed the binding effect that
our prior decisions on legal issues at the preliminary
injunction stage on an earlier appeal in the same case
have on later decisions. See Pitt News v. Pappert, 379
F.3d 96, 104-05 (3d Cir. 2004). Clearly the nature
of the showing that an applicant for a preliminary
injunction must make to obtain relief can present
special difficulties in applying the law-of-the-
case doctrine in later stages of the litigation. In
Pitt News we noted that three separate rules are
relevant when considering the effect of a
preliminary injunction later in ongoing litigation:
First, it is our Courts tradition that a panel may not
overrule a holding of a prior panel. Second, it is well
established that neither this tradition nor the law-of-the-
case doctrine requires a panel hearing an appeal from
the entry of a final judgment to follow the legal analysis
contained in a prior panel decision addressing the
question whether a party that moved for preliminary
injunctive relief showed a likelihood of success on the
merits. Third, although a panel entertaining a
preliminary injunction appeal generally decides
only whether the district court abused its discretion
in ruling on the request for relief and generally
does not go into the merits any farther than is
1
The Government, however, does not challenge the District
Courts determination that plaintiffs have standing to
bring this action.
Law Animated World, 31 August 2017
(2017) 2 LAW
necessary to determine whether the moving party
established a likelihood of success, a panel is not
always required to take this narrow approach. If a
preliminary injunction appeal presents a question of law
and the facts are established or of no controlling
relevance, the panel may decide the merits of the claim.
Id. at 104-05 (citations and most internal
quotation marks omitted). We explained:
In the typical situation where the prior panel
stopped at the question of likelihood of success
the prior panels legal analysis must be carefully
considered, but it is not binding on the later panel.
Indeed, particularly where important First Amendment
issues are raised, the later panel has a duty, in the end,
to exercise its own best judgment. On the other hand,
if the first panel does not stop at the question of
likelihood of success and instead addresses the merits,
the later panel, in accordance with our Courts
traditional practice, should regard itself as bound by
the prior panel opinion. Id. at 105.
14. But even if we subsequently conclude that in
a particular case our prior determination
ordinarily would bind us, we may reconsider issues
that we previously resolved if any of the following
extraordinary circumstances are present: (1) there
has been an intervening change in the law; (2) new
evidence has become available; or (3) reconsideration
is necessary to prevent clear error or a manifest
injustice. Council of Alternative Political Parties v.
Hooks, 179 F.3d 64, 69 (3d Cir. 1999) (citing In
re City of Philadelphia Litig., 158 F.3d 711, 718
(3d Cir. 1998)).
15. In ACLU II we concluded that plaintiffs were
likely to succeed on the merits and thus
concluded that the District Court could grant
them a preliminary injunction. Nevertheless we
did not stop our analysis after coming to that
conclusion. Instead, we opined at length on the
constitutionality of COPA and construed a
number of terms of the statute. Consequently, the
procedural posture of this case and the scope of
our prior decision has set a foundation for the
possible applicability of the law-of-the-case
doctrine here.
16. Though we will explain in more detail the
basis for our conclusions in ACLU II, for
purposes of determining the binding effect of that
50
(2017) 2 LAW ACLU v. Michael B. Mukasey, AG of the US. [US-CA: 3rd Circuit]
decision on this appeal it is enough to note now
that we expressly held the following: (1) COPAs
definitions of material that is harmful to minors,
and commercial purposes and COPAs affirmative
defenses are not narrowly tailored to achieve the
Governments compelling interest in protecting minors
from harmful material on the Web, 322 F.3d at 251;
(2) filtering software is a less restrictive alternative
than the COPA restrictions to advance the
Governments compelling interest in preventing
minors from being exposed to harmful material
on the Web, id. at 265; (3) COPA is substantially
overbroad because of its use of the terms
material harmful to minors, minor,
commercial purposes, and community
standards; (4) COPAs affirmative defenses do
not save the statute from sweeping too broadly;
and (5) a narrowing construction of COPA is not
available to permit it to be upheld, id. at 266-71.
17. In its decision affirming ACLU II, the Supreme
Court expressly declined to consider many of the
issues that we had determined. Specifically, the
Court stated:
[W]e agree with the Court of Appeals that the
District Court did not abuse its discretion in entering the
preliminary injunction. Our reasoning in support of
this conclusion, however, is based on narrower,
more specific grounds than the rationale the
Court of Appeals adopted. The Court of Appeals,
in its opinion affirming the decision of the
District Court, construed a number of terms in
the statute, and held that COPA, so construed,
was unconstitutional. None of those constructions
of statutory terminology, however, were relied
on by or necessary to the conclusions of the
District Court. Instead, the District Court
concluded only that the statute was likely to
burden some speech that is protected for adults,
which [the Government] does not dispute. As to
the definitional disputes, the District Court
concluded only that [the plaintiffs] interpretation
was not unreasonable, and relied on their
interpretation only to conclude that [the plaintiffs]
had standing to challenge the statute, which,
again, [the Government] does not dispute. Because
we affirm the District Courts decision to grant
the preliminary injunction for the reasons relied
on by the District Court, we decline to consider
51
F-97
the correctness of the other arguments relied on
by the Court of Appeals.
Ashcroft, 542 U.S. at 665, 124 S.Ct. at 2791
(citations omitted). The Court then addressed the
issue of whether there are less restrictive
alternatives to the COPA restrictions to further
the Governments compelling interest in COPAs
objective and stated that [f]ilters are less
restrictive than COPA. Id. at 667, 124 S.Ct. at
2792. The Court recognized, however, that there
are substantial factual disputes remaining in the
case. [T]here is a serious gap in the evidence
as to the effectiveness of filtering software. For
us to assume, without proof, that filters are less
effective than COPA would usurp the District
Courts factfinding role. Id. at 671, 124 S.Ct. at
2794 (citation omitted). Thus, the Court
recognized that restrictiveness and effectiveness
are separate matters. The Court also noted that:
[T]he factual record does not reflect current
technological reality a serious flaw in any case
involving the Internet. The technology of the
Internet evolves at a rapid pace. Yet the
factfindings of the District Court were entered in
February 1999, over five years ago . It is
reasonable to assume that other technological
developments important to the First Amendment
analysis have also occurred during that time.
More and better filtering alternatives may exist
than when the District Court entered its findings.
Id. Accordingly, the Court decided to remand the
case to the District Court for a full trial on the
merits to update and supplement the factual
record to reflect current technological realities
and to take account of a changed legal
landscape to determine if other methods were
less restrictive alternatives to COPA to further the
Governments compelling interest in its objective.
Id. at 672, 124 S.Ct. at 2795.
18. The Government contends that the portion of
our opinion in ACLU II that goes beyond the
Supreme Courts holding is not binding because
the Supreme Courts decision remanding for
further consideration of the question whether
filtering is a less restrictive alternative than
COPA contemplates a fresh examination of all
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F-98 ACLU v. Michael B. Mukasey, AG of the US. [US-CA: 3rd Circuit]
the issues in this case, including the scope of
COPAs coverage and its efficacy and
restrictiveness compared to filtering. Appellants
Letter at 1 (May 30, 2008).2 We conclude,
however, that the Government is incorrect on this
point. The Supreme Courts decision explicitly
left untouched our conclusions in ACLU II other
than our decision that filters are a less restrictive
alternative than COPA for advancing the
Governments compelling interest at stake in this
litigation. Moreover, our other determinations
including our interpretation of the provisions of COPA
and whether they are narrowly construed or
impermissibly overbroad did not depend on the
factual record and thus would not be implicated by
the evidence developed in the subsequent trial on
the merits in the District Court. Accordingly, those
conclusions remain binding on us now.
19. The Government also contends that we should
reconsider the issues addressed in ACLU II on the
basis of an intervening change in the law since
we decided that case. In this regard it points to
the Supreme Courts recent decision in United
States v. Williams, 128 S.Ct. 1830 (2008), where
the Court found that the Prosecutorial Remedies
and Other Tools to end the Exploitation of
Children Today Act of 2003, 18 U.S.C.
2252A(a)(3)(B), is not overbroad under the First
Amendment. But the Court in Williams merely
restated and applied the well-established legal
doctrines of overbreadth and vagueness and did not
change the law applicable to this case. Accordingly,
we conclude that there are not extraordinary
circumstances justifying us in departing from
our holdings in ACLU II other than that with
respect to filtering.
20. Now that we have delineated the contours of
ACLU IIs effect on this appeal, we will address
the issues the Government raises. As we consider
these issues, we will determine whether, and if so
the extent, that our conclusions in ACLU II are the
law-of-the-case here.
2
The Government wrote this letter in response to our request
that the parties file supplemental letter briefs on the law-
of-the-case issue.
Law Animated World, 31 August 2017
(2017) 2 LAW
B. STRICT SCRUTINY
21. First, the Government challenges the District
Courts decision that COPA is unconstitutional because
it does not survive strict scrutiny, the standard that
we apply in this case inasmuch as COPA is a
content-based restriction on speech. See Turner
Broadcasting Sys., Inc. v. Fed. Commcns Commn,
512 U.S. 622, 642, 114 S.Ct. 2445, 2459 (1994).
To survive strict scrutiny analysis, a statute must: (1)
serve a compelling governmental interest; (2) be
narrowly tailored to achieve that interest; and (3) be the
least restrictive means of advancing that interest. Sable
Commcns of Cal., Inc. v. Fed. Commcns Commn,
492 U.S. 115, 126, 109 S.Ct. 2829, 2836 (1989).
1. Compelling Interest
22. As we noted above, Congress enacted COPA to
protect minors from exposure to sexually explicit
material on the Web. The Supreme Court has held
that there is a compelling interest in protecting
the physical and psychological well-being of
minors, Sable, 492 U.S. at 126, 109 S.Ct. at
2836, and the parties agree that the Government has a
compelling interest to protect minors from exposure to
harmful material on the Web. Inasmuch as we agree
with them on that point, we turn to the question of
whether COPA is narrowly tailored to effectuate its
purpose.
2. Narrowly Tailored
23. As we stated above, to survive a strict scrutiny
analysis COPA must be narrowly tailored to advance a
compelling government interest. In ACLU II, we
addressed this issue and held that the following
provisions of COPA are not narrowly tailored:
(a) the definition of material that is harmful to
minors, which includes the concept of taking as
a whole material designed to appeal to the
prurient interest of minors; and material which
(when judged as a whole) lacks serious literary
or other value for minors; (b) the definition of
commercial purposes, which limits the reach of
the statute to persons engaged in the business
(broadly defined) of making communications of
material that is harmful to minors; and (c) the
affirmative defenses available to publishers,
which require the technological screening of
users for the purpose of age verification.
ACLU II, 322 F.3d at 251.
52
(2017) 2 LAW ACLU v. Michael B. Mukasey, AG of the US. [US-CA: 3rd Circuit]
24. First, we addressed why we found that the
taking the material as a whole language in COPAs
definition of material that is harmful to minors, was
not narrowly tailored. COPA defines such material
to include any matter that is obscene or that:
(A) the average person, applying contemporary
community standards, would find, taking the
material as a whole and with respect to minors, is
designed to appeal to, or is designed to pander
to, the prurient interest; (B) depicts, describes,
or represents, in a manner patently offensive
with respect to minors, an actual or simulated
sexual act or sexual contact, an actual or
simulated normal or perverted sexual act, or a
lewd exhibition of the genitals or post-
pubescent female breast; and (C) taken as a
whole, lacks serious literary, artistic, political,
or scientific value for minors.
47 U.S.C. 231(e)(6) (emphasis added). We concluded
that the taken as a whole language, when read
in context with other language in the statute,
mandates evaluation of an exhibit on the Internet
in isolation, rather than in context. ACLU II, 322
F.3d at 253. We explained that:
Because we view such a statute, construed as
its own text unquestionably requires, as
pertaining only to single individual exhibits,
COPA endangers a wide range of
communications, exhibits, and speakers whose
messages do not comport with the type of
harmful materials legitimately targeted under
COPA, i.e., material that is obscene as to
minors. Accordingly, while COPA penalizes
publishers for making available improper
material for minors, at the same time it
impermissibly burdens a wide range of speech
and exhibits otherwise protected for adults.
Thus, in our opinion, the Act, which proscribes
publication of material harmful to minors, is
not narrowly tailored to serve the
Governments stated purpose in protecting
minors from such material.
Id. (citation omitted).
25. We also explained why we found that
COPAs definition of the term minor, viewed
in conjunction with the material harmful to
53
F-99
minors test, is not tailored narrowly enough to
satisfy the First Amendments requirements. Id.
At 255. COPA defines minor as any person
under 17 years of age. 47 U.S.C. 231(e)(7).
We stated that the term thus applies in a literal
sense to an infant, a five-year old, or a person just
shy of age seventeen. ACLU II, 322 F.3d at 254.
We reasoned that Web publishers would face
great uncertainty in deciding what minor could be
exposed to its publication, so that a publisher
could predict, and guard against, potential
liability. Id. at 255. We explicitly rejected the
Governments argument that the term should be
read to apply only to normal, older adolescents,
id. at 254, and stated that under either our
definition or the Governments proffered
definition, the term minor, viewed in conjunction
with the material harmful to minors test, is not
tailored narrowly enough to satisfy the First
Amendments requirements, id. at 255.
26. We then proceeded to explain why we found
that COPAs purported limitation of liability to
persons making communications for commercial
purposes does not narrow the reach of COPA
sufficiently. Id. at 256. COPA states that [a]
person shall be considered to make a
communication for commercial purposes only if
such person is engaged in the business of making
such communications, and that
[t]he term engaged in the business means that
the person who makes a communication that
includes any material that is harmful to minors,
devotes time, attention, or labor to such activities,
as a regular course of such persons trade or
business, with the objective of earning a profit
. A person may be considered to be engaged in
the business only if the person knowingly
causes [or solicits] the material that is harmful to
minors to be posted on the World Wide Web .
47 U.S.C. 231(e)(2). We stated that:
we read COPA to apply to Web publishers who
have posted any material that is harmful to
minors on their Web sites, even if they do not
make a profit from such material itself or do not
post such material as the principal part of their
business. Under the plain language of COPA, a Web
publisher will be subjected to liability if even a small
Law Animated World, 31 August 2017
F-100 ACLU v. Michael B. Mukasey, AG of the US. [US-CA: 3rd Circuit]
part of his or her Web site displays material harmful to
minors. (emphasis ours - IMS)
ACLU II, 322 F.3d at 256. We stated that this
group included those persons who sell
advertising space on their otherwise
noncommercial Web sites [, including] the
Web publisher who provides free content on his
or her Web site and seeks advertising revenue,
perhaps only to defray the cost of maintaining the
Web site. Id. We also rejected the Governments
argument that COPAs definition of engaged in
the business limits liability to those persons who
publish material that is harmful to minors as a
regular course of such persons business or
trade:
COPAs use of the phrase regular course does
not narrow the scope of speech covered because
it does not place any limitations on the amount,
or the proportion, of a Web publishers posted
content that constitutes such material. Thus, even
if posted material that is harmful to minors
constitutes only a very small, or even infinitesimal,
part of a publishers entire Web site, the publisher
may still be subject to liability.
Id. at 257.
27. Finally, we explained why we found that COPAs
affirmative defenses were not narrowly tailored. As we
already have noted above, a Web publisher can
assert an affirmative defense if it:
has restricted access by minors to material that is
harmful to minors (A) by requiring use of a
credit card, debit account, adult access code, or
adult personal identification number; (B) by
accepting a digital certificate that verifies age; or
(C) by any other reasonable measures that are
feasible under available technology.
47 U.S.C. 231(c)(1). We first stated that
implementation of the affirmative defenses in
COPA will likely deter many adults from
accessing restricted content, because many Web
users are simply unwilling to provide
identification information in order to gain access
to content, especially where the information they
wish to access is sensitive or controversial.
ACLU II, 322 F.3d at 259 (footnote omitted). For
this particular conclusion we relied on factual
Law Animated World, 31 August 2017
(2017) 2 LAW
findings the District Court made in granting the
preliminary injunction, so to this extent it does
not bind us on this appeal.
28. Though we are not bound by previous
conclusions with respect to deterrence of adults
seeking restricted content, in ACLU II we reached
other conclusions about COPAs affirmative
defenses that do not depend on the facts as
developed in the District Court, and those
conclusions are binding on us on this appeal. For
instance, in ACLU II we stated that the
affirmative defenses do not provide Web
publishers with assurances of freedom from
prosecution because [a]n affirmative defense
applies only after prosecution has begun, and the
speaker must himself prove that his conduct
falls within the affirmative defense. Id. at 260
(second alteration in original) (quoting Ashcroft v.
Free Speech Coalition, 535 U.S. 234, 255, 122
S.Ct. 1389, 1404 (2002)). We also considered the
Governments argument that other cases dealing
with display restrictions have upheld the use of
blinder racks to shield minors from viewing
harmful material. We distinguished those cases
because:
[t]he use of blinder racks does not create the
same deterrent effect on adults as would COPAs
credit card or adult verification screens. Blinder
racks do not require adults to compromise their
anonymity in their viewing of material harmful
to minors, nor do they create any financial burden
on the user. Moreover, they do not burden the
speech contained in the targeted publications any
more than is absolutely necessary to shield
minors from its content.
Id. We concluded that [t]he effect of the
affirmative defenses, as they burden material
harmful to minors which is constitutionally
protected for adults, is to drive this protected
speech from the marketplace of ideas on the
Internet. This type of regulation is prohibited
under the First Amendment. Id.
29. In its decision made after the trial on the
merits now on appeal before us, the District Court
concluded that COPA is not narrowly tailored
because it is both overinclusive and
54
(2017) 2 LAW ACLU v. Michael B. Mukasey, AG of the US. [US-CA: 3rd Circuit]
underinclusive. First, the court determined that
COPA is impermissibly overinclusive because it
prohibits much more speech than is necessary to
further Congress compelling interest. For
example, the definitions of commercial
purposes and engaged in the business apply to
an inordinate amount of Internet speech and
certainly cover more than just commercial
pornographers. Gonzales, 478 F. Supp. 2d at
810 (citations omitted). The court also concluded
that COPA is overinclusive because it applies to
speech that is obscene as to all minors from
newborns to age sixteen, and not just to speech
that is obscene as to older minors . Id.
30. The Government contends that COPA is
narrowly tailored because it applies only to commercial
pornographers and only to material that is harmful to
older minors. But we addressed and rejected the
Governments arguments in ACLU II, when we
found there is nothing in the text of COPA to limit its
application solely to commercial pornographers or to
limit the phrase material that is harmful to minors to
include material that only is harmful to older minors.
See 322 F.3d at 253-57. Our prior decision is
binding on these issues on this appeal.
31. The District Court also found that COPA is not
narrowly tailored because it is underinclusive. In
ACLU II we did not address whether COPA is
impermissibly underinclusive and so we are free
to review this finding on the merits. In its
Findings of Fact, the District Court stated that a
substantial number (approximately 50 percent) of
sexually explicit websites are foreign in origin.
Gonzales, 478 F. Supp. 2d at 789. The court then
reasoned:
[T]here is a significant amount of sexually
explicit material on the Internet which originates
from outside of the United States. [U]nlike
Internet content filters which are able to block
from view unsuitable material regardless of its
origin, COPA has no extra-territorial application.
As a result, COPA is not applicable to a large
amount of material that is unsuitable for children
which originates overseas but is nevertheless
available to children in the United States.
COPAs lack of extraterritorial application renders
it underinclusive.
55
F-101
Id. at 810-11 (citations omitted). The Government
contends that the District Court erred by construing
COPA not to apply to foreign Web sites, and thus
the Government argues that COPA is not
underinclusive.
32. The problem with the Governments argument
in this respect is that, as we explain below, the
Supreme Court already has determined that
COPA does not apply to foreign Web sites. But
notwithstanding this significant limitation on
COPAs scope, if we had to pass on the issue we
might conclude that COPA is not unconstitutionally
underinclusive. The Supreme Court has explained
the circumstances in which a court may find that a
regulation of speech is impermissibly underinclusive:
[A]n exemption from an otherwise permissible
regulation of speech may represent a
governmental attempt to give one side of a
debatable public question an advantage in
expressing its views to the people. First Natl
Bank of Boston v. Bellotti, 435 U.S. 765, 785-86,
98 S.Ct. 1407, 1420-21, 55 L.Ed.2d 707 (1978).
Alternatively, through the combined operation of
a general speech restriction and its exemptions,
the government might seek to select the
permissible subjects for public debate and
thereby to control the search for political
truth. Consolidated Edison Co. of N.Y. v. Public
Serv. Commn of N.Y., 447 U.S. 530, 538, 100
S.Ct. 2326, 2333, 65 L.Ed.2d 319 (1980).
City of Ladue v. Gilleo, 512 U.S. 43, 51, 114 S.Ct.
2038, 2043 (1994) (second alteration in original)
(footnote omitted). These quite narrow
circumstances are hardly applicable to COPA.
Even though, as the District Court recognized,
COPA does not apply to foreign Web sites, we
cannot understand how that limitation on its
scope would represent a governmental attempt
to give one side of a debatable public question an
advantage in expressing its views to the people
[or] to select the permissible subjects for public
debate. Id. (citations and quotation marks
omitted). There is no evidence in the record of
which we are aware that Congress sought to favor
foreign Web site publishers over domestic Web
site publishers when regulating sexually explicit
Law Animated World, 31 August 2017
F-102 ACLU v. Michael B. Mukasey, AG of the US. [US-CA: 3rd Circuit]
material on the Web, nor is there any suggestion
in the record that the Government is selecting the
permissible subject for public debate by
excluding foreign Web sites from COPAs
coverage.
33. In fact, we think that it is likely that Congress
would have desired to place COPAs restrictions on
foreign Web sites available for access in this country but
chose not to do so because, as the District Court
recognized:
[e]nforcement of COPA against overseas Web
site owners would be burdensome and
impractical due to the knotty questions of
jurisdiction which arise in the Internet context.
Furthermore, even if a specific foreign Web site
had sufficient contacts with the forum to allow
personal jurisdiction, it could be quite difficult or
impossible to ensure that the offender would
obey or could be forced to obey the judgment of
the U.S. court.
Gonzales, 478 F. Supp. 2d at 811. In these
circumstances, even though COPAs omission of
foreign Web sites from its regulations certainly is
relevant in an inquiry into whether it is the most
effective means of advancing the Governments
compelling interest in COPAs object, the omission
might not lead us to a conclusion that the statute is
impermissibly underinclusive. After all, as the Court
of Appeals for the Eighth Circuit recently noted,
a limitation on speech that is not all-encompassing
may still be narrowly tailored where the under-
inclusivity does not favor a particular viewpoint
or undermine the rationale given for the
regulation. Bowman v. White, 444 F.3d 967, 983
(8th Cir. 2006).
34. On the other hand, we might conclude that
because COPA fails to apply to 50% of its
purported commercial pornography targets, we
lack the evidence necessary to satisfy us that
Congress had in mind its stated goal of protecting
minors from harmful material on the Web when it
passed COPA. It is not as though Congress is
unable to protect minors from harmful material
on foreign Web sites; for instance, Congress could
promote the use of Internet content filters, which
do not discriminate on the basis ofgeography.
Law Animated World, 31 August 2017
(2017) 2 LAW
COPAs failure to protect minors from harmful
material on foreign Web sites might raise the
inference that Congress had some ulterior,
impermissible motive for passing COPA.
35. We note, however, that our possible
disagreement with the District Court on this one
point would not change our ultimate decision to
affirm its ordergranting a permanent injunction,
as there are numerous other grounds that require us to
find that COPA is not narrowly tailored and is
unconstitutional. Accordingly, we will refrain from
deciding the matter.
36. The District Court also found that COPAs
affirmative defenses do not aid in narrowly
tailoring COPA to Congress compelling
interest. Gonzales, 478 F. Supp. 2d at 813.
Specifically, the court found that:
there is no evidence of age verification
services or products available on the market to
owners of Web sites that actually reliably
establish or verify the age of Internet users.
Nor is there evidence of such services or
products that can effectively prevent access to
Web pages by a minor.
Id. at 800. The court found that [t]he rules of
payment card associations in this country prohibit
Web sites from claiming that use of a payment
card is an effective method of verifying age, and
prohibit Web site owners from using credit or
debit cards to verify age, and that a significant
number of minors have access to [payment
cards]. Id. at 801. The court also reviewed data
verification services, which are non-payment
card-based services that attempt to verify the age
or identity of an individual Internet user, and
found that they are unreliable because they
cannot determine whether the person entering
information into the Web site is the person to
whom the information pertains. Id. at 802. The
court further found that the minimum information
required by a data verification services company
can easily be circumvented by children who
generally know the first and last name, street
address and zip codes of their parents or another
adult. Id.
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(2017) 2 LAW ACLU v. Michael B. Mukasey, AG of the US. [US-CA: 3rd Circuit]
37. The court later explained, [t]he affirmative
defenses cannot cure COPAs failure to be
narrowly tailored because they are effectively
unavailable. Credit cards, debit accounts, adult
access codes, and adult personal identification
numbers do not in fact verify age. As a result,
their use does not, in good faith, restrict []
access by minors. Id. at 811 (second alteration
in original) (quoting 47 U.S.C. 231(c)(1)(A)).
38. The court also concluded that COPAs
affirmative defenses raise unique First Amendment
issues that make the statute unconstitutional. Id. at
813. The court found that due to the fees
associated with the use of the procedures
enumerated in all of the affirmative defenses and
verification services, Web sites which desire
to provide free distribution of their information,
will be prevented from doing so. Id. at 804. The
court also found that:
[f]or a plethora of reasons including privacy and
financial concerns and the fact that so much
Web content is available for free, many Web
users already refuse to register, provide credit
card information, or provide real personal
information to Web sites if they have any
alternative. Because requiring age verification
would lead to a significant loss of users, content
providers would have to either self-censor, risk
prosecution, or shoulder the large financial
burden of age verification.
Id. at 805. Moreover, the court found that many
users who are not willing to access information
non-anonymously will be deterred from accessing
the desired information. Web site owners will
be deprived of the ability to provide this
information to those users. Id. at 806. The court
also indicated that:
[r]equiring Internet users to provide payment card
information or other personally identifiable
information to access a Web site would significantly
deter many users from entering the site, because
Internet users are concerned about security on the
Internet and because Internet users are afraid of
fraud and identity theft on the Internet.
Id. Based on these findings, the court concluded
that:
57
F-103
[t]he affirmative defenses also raise their own First
Amendment concerns. For example, the utilization of
those devices to trigger COPAs affirmative defenses
will deter listeners, many of whom will be
unwilling to reveal personal and financial
information in order to access content and, thus,
will chill speech. Similarly, the affirmative defenses
also impermissibly burden Web site operators
with demonstrating that their speech is lawful.
Under the COPA regime, Web site operators are
unable to defend themselves until after they are
prosecuted. Moreover, the affirmative defenses place
substantial economic burdens on the exercise of
protected speech because all of them involve
significant cost and the loss of Web site visitors,
especially to those plaintiffs who provide their
content for free.
Id. at 812-13 (citations and quotations omitted).
39. The Government argues that the District
Court erred in rejecting the limiting effect of
COPAs affirmative defenses. It contends that
[t]he possibility that some minors may have
access to credit cards merely demonstrates that no
system of age verification is foolproof. It does not
call into question the availability of credit card
screening as an affirmative defense that tailors
COPA more narrowly. Appellants Br. at 37. The
Government also argues that the court ignored
testimony that minors do not have access to
traditional payment cards under their own control
but simply have access to cards supervised by
adults. Id.
40. But the District Court found that even if there
is parental supervision of payment card use, the
supervision does not prevent access to harmful
material by minors because parents may not be
able to identify transactions on sexually explicit
Web sites because the adult nature of such
transactions is often not readily identifiable .
Gonzales, 478 F. Supp. 2d at 802. In any event, we
conclude that the District Court correctly found
that the affirmative defenses are effectively
unavailable because they do not actually verify age.
41. The Government also argues that the District
Court incorrectly determined that the affirmative
defenses present their own First Amendment
concerns by imposing undue burdens on Web
Law Animated World, 31 August 2017
F-104 ACLU v. Michael B. Mukasey, AG of the US. [US-CA: 3rd Circuit]
publishers due to the high costs of implementing
age verification technologies and the loss of
traffic that would result from the use of these
technologies. The Government contends that the:
courts evaluation of the burdens imposed by
COPA was flawed because the court focused
largely, if not exclusively, on Web publishers
who provide their content for free. Whatever
limited application COPA might have beyond
its core regulation of commercial pornography,
the court erred in evaluating the burdens the
statute imposes based entirely on these
marginal cases and ignoring the heartland of
the statutes proscriptions, where the burdens
are far less onerous.
Appellants Br. at 38-39 (citations and quotations
omitted). We reject this argument. The fact that
COPA places burdens on Web publishers whom the
Government does not consider to be within the
heartland of the statute does not make those burdens
any less onerous or offensive to the principles of the
First Amendment.
42. Moreover, there is good reason to believe that
COPA unduly would burden even those Web publishers
whom the Government considers to fall within the
heartland of the statute, because the District Court
found that those publishers also will face
significant costs to implement the affirmative
defenses and will suffer the loss of legitimate
visitors once they do so. And, contrary to the
Governments suggestion at oral argument, users
would have alternatives to obtain pornography even if
COPA was in effect because, as we already have
indicated and discuss below, COPA does not apply
to foreign Web sites. The loss of traffic that would
result clearly is an undue burden on even those
Web sites that the Government contends are in
the heartland of COPA.
42. We conclude that the District Court correctly
found that implementation of COPAs affirmative
defenses by a Web publisher so as to avoid prosecution
would involve high costs and also would deter users
from visiting implicated Web sites. It is clear that
these burdens would chill protected speech and thus
that the affirmative defenses fail a strict scrutiny
analysis.
Law Animated World, 31 August 2017
(2017) 2 LAW
43. The Government contends that nevertheless
these burdens are no different in kind or degree
from the burdens imposed by state laws regulating
the sale and commercial display of harmful to
minors materials. [T]he effect of the statute is
simply to requir[e] the commercial pornographer
to put sexually explicit images behind the
counter. Appellants Br. At 43 (citations and
certain internal quotation marks omitted) (second
alteration in original).
44. We rejected this argument in ACLU II. See
322 F.3d at 260 (Blinder racks do not require
adults to compromise their anonymity in their
viewing of material harmful to minors, nor do
they create any financial burden on the user.
Moreover, they do not burden the speech
contained in the targeted publications any more
than is absolutely necessary to shield minors from
its content.). Blinder racks do not require adults
to pay for speech that otherwise would be
accessible for free, they do not require adults to
relinquish their anonymity to access protected
speech, and they do not create a potentially
permanent electronic record. Blinder racks simply
do not involve the privacy and security concerns that
COPAs affirmative defenses raise, and so the
Governments attempted analogy is ill-fitting.
45. In sum, after considering our previous
conclusions in ACLU II and our analyses of the
issues ACLU II has not resolved, we are quite
certain that notwithstanding Congresss laudable
purpose in enacting COPA, the Government has not
met its burden of showing that it is narrowly tailored so
as to survive a strict scrutiny analysis and thereby
permit us to hold it to be constitutional.
3. LEAST RESTRICTIVE ALTERNATIVE
46. In addition to failing the strict scrutiny test
because it is not narrowly tailored, COPA does not
employ the least restrictive alternative to advance the
Governments compelling interest in its purpose, the
third prong of the three-prong strict scrutiny test. A
statute that effectively suppresses a large amount
of speech that adults have a constitutional right to
receive and to address to one another is
unacceptable if less restrictive alternatives would
be at least as effective in achieving the legitimate
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(2017) 2 LAW ACLU v. Michael B. Mukasey, AG of the US. [US-CA: 3rd Circuit]
purpose that the statute was enacted to serve.
Ashcroft, 542 U.S. at 665, 124 S.Ct. at 2791
(alteration in original) (quoting Reno, 521 U.S. at
874, 117 S.Ct. at 2346). [T]he burden is on the
Government to prove that the proposed
alternatives will not be as effective as the
challenged statute. Id. (citing Reno, 521 U.S. at
874, 117 S.Ct. at 2346). The Governments
burden is not merely to show that a proposed
less restrictive alternative has some flaws; its
burden is to show that it is less effective. Id. at
669, 124 S.Ct. at 2793 (citing Reno, 521 U.S. at
874, 117 S.Ct. at 2346).
47. Based on the preliminary injunction record in
this case, the Supreme Court held that [b]locking
and filtering software is an alternative that is less
restrictive than COPA, and, in addition, likely
more effective as a means of restricting childrens
access to materials harmful to them. Id. at 666-
67, 124 S.Ct. at 2792. We reached a similar
conclusion in ACLU II. See 322 F.3d at 265.3
3
Our opinion in ACLU II is not entirely clear on this point.
We started our discussion of the least restrictive
alternative question by indicating that [w]e are also
satisfied that COPA does not employ the least restrictive
means to effect the Governments compelling interest in
protecting minors. ACLU II, 322 F.3d at 261. Then in
considering that question in more detail we discussed
filters at length. At one point in the opinion we stated that
filtering software is a less restrictive alternative that can
allow parents some measure of control over their
childrens access to speech that parents consider
inappropriate. Id. at 263. At several other points, we also
stated that COPA is not the least restrictive alternative.
See id. at 261 (We are satisfied that COPA does not
employ the least restrictive means to effect the
Governments compelling interest in protecting
minors.); id. at 265-66 (The existence of less restrictive
alternatives renders COPA unconstitutional under strict
scrutiny. . . . COPA also fails strict scrutiny because it
does not use the least restrictive means to achieve its
ends. . . . Congress could have, but failed to employ the
least restrictive means to accomplish its legitimate goal
.). Nevertheless we stated that [w]e agree with the
District Court that the various blocking and filtering
techniques which that Court discussed may be
substantially less restrictive than COPA in achieving
COPAs objective of preventing a minors access to
59
F-105
After the trial on the merits, the District Court
concluded that the Government did not meet its
burden of showing that COPA is the least
restrictive effective alternative for advancing
Congresss compelling interest because filter
software and the Governments promotion and
support of filter software is a less restrictive
effective alternative to COPA.
48. The District Court discussed Internet content
filters at length in its Findings of Fact. We will
review these findings in detail, as the need to
determine whether filters are more effective than COPA
to effectuate Congresss purpose in enacting that statute
was the primary reason the Supreme Court remanded
the case. According to the District Court:
Internet content filters (filters) are computer
applications which, inter alia, attempt to block
certain categories of material from view that a
Web browser or other Internet application is
capable of displaying or downloading, including
sexually explicit material. Filters categorize and
block Web sites or pages based on their content.
By classifying a site or page, and refusing to
display it on the users computer screen, filters
can be used to prevent children from seeing
material that might be considered unsuitable.
Gonzales, 478 F. Supp. 2d at 789. The court explained:
Filters can be programmed or configured in a
variety of different ways according to, inter alia,
the values of the parents using them and the age
and maturity of their children. [F]ilters can be
set up to restrict materials available on Web
pages and other Internet applications based on
numerous factors including the type of content
harmful material. Id. at 265 (emphasis added). Because
of this statement, we cannot state with certainty that
ACLU II squarely holds that filters are less restrictive
than COPA, though it probably does. Thus, for law-of-
the-case purposes, we might not consider ourselves
bound on this appeal by that determination. Of course,
this discussion of whether we determined that filters are
less restrictive than COPA or that filters only may be less
restrictive than COPA is somewhat academic, for on the
appeal of ACLU II the Supreme Court explicitly addressed
this issue and, though remanding the case, flatly indicated
that filters are less restrictive than COPA, Ashcroft, 342
U.S. at 667, 124 S.Ct.at 2792, and that Courts conclusions
supersede our decision in ACLU II on this point.
Law Animated World, 31 August 2017
F-106 ACLU v. Michael B. Mukasey, AG of the US. [US-CA: 3rd Circuit]
they contain, the presence of particular words,
the address of the Web site, the Internet protocol
used, or computer application used. Some filters
can also restrict Internet access based on time of
day, day of week, how long the computer has
been connected to the Internet, or which user is
logged onto a computer.
Id. at 790. The court then described in detail how
filters operate:
Filters use different mechanisms to attempt to
block access to material on the Internet
including: black lists, white lists, and dynamic
filtering. Black lists are lists of URLs or Internet
Protocol (IP) addresses that a filtering company
has determined lead to content that contains the
type of materials its filter is designed to block.
White lists are lists of URLs or IP addresses that
a filtering company has determined do not lead
to any content its filter is designed to block, and,
thus, should never be blocked. In addition to
its own black and white lists, filters often give
parents or administrators the option of creating
customized black or white lists. Dynamic
filtering products use artificial intelligence to
analyze Web site content in real-time as it is
being requested and determine whether it should
be blocked by evaluating a number of different
parts of the content, both what the user can
actually see on the Web page, and the various
hidden pieces of information contained with the
content that are part of its software code or
script, known as the metadata. Among other
things, dynamic filters analyze the words on the
page, the metadata, the file names for images, the
URLs, the links on a page, the size of images, the
formatting of the page, and other statistical
pattern recognition features, such as the spatial
patterns between certain words and images,
which can often help filters categorize content
even if the actual words are not recognized. In
addition to analyzing the content of Web pages,
dynamic filters also take the context of the page
into consideration, to ensure that the
determinations are as accurate as possible. For
example, many companies will develop
templates that provide additional context to teach
the software how to recognize certain contexts
for example, to block the word breast when
used in combination with the word sexy, but
not when used in combination with the words
Law Animated World, 31 August 2017
(2017) 2 LAW
chicken or cancer. The software analyzes
context, in part, by utilizing statistical pattern
recognition techniques to identify common
features of acceptable and unacceptable Web
pages, depending on the context in which the
content appears.
Id. at 790-91 (citations omitted). The court found
that:
[f]ilters can be used by parents to block material
that is distributed on the Web and on the other
widely used parts of the Internet through
protocols other than HTTP and through other
Internet applications. For example, filters can be
used to block any Internet application, including
email, chat, instant messaging, peer-to-peer file
sharing, newsgroups, streaming video and audio,
Internet television and voice over Internet
protocol (VoIP), and other Internet protocols
such as FTP. In addition to blocking access to
these Internet applications completely, some
products provide parents with the option of
providing limited access to these applications.
For example, instant messaging and email may
be permitted, but some of the filtering products
will only permit the sending and receiving of
messages from certain authorized individuals,
and will block e-mails or instant messages
containing inappropriate words or any images.
Filtering programs can also completely prevent
children from entering or using chat rooms, or
some can merely filter out any inappropriate
words that come up during a chat session.
Id. at 791 (citations omitted). The court then
described the flexible nature of filters:
Some filtering programs offer only a small
number of settings, while others are highly
customizable, allowing a parent to make detailed
decisions about what to allow and what to block.
Filtering products do this by, among other things,
enabling parents to choose which categories of
speech they want to be blocked (such as sexually
explicit material, illicit drug information,
information on violence and weapons, and hate
speech) and which age setting they want the
product to apply. Filtering products can be
used by parents even if they have more than one
child. For example, if a family has four children,
many filtering products will enable the parent to
set up different accounts for each child, to ensure
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(2017) 2 LAW ACLU v. Michael B. Mukasey, AG of the US. [US-CA: 3rd Circuit]
that each child is able to access only the content
that the parents want that particular child to
access.
Id. (citations omitted). The court found that:
[f]iltering products block both Web pages
originating from within the United States and
Web pages originating from outside the United
States. The geographic origin of a Web page is not a
factor in how a filter works because the filter analyzes
the content of the Web page, not the location from which
it came.
Id. at 791-92. The courtfound that [f]iltering
products block both non-commercial and commercial
Web pages. Id. at 792. The court also found that:
[i]n addition to their content filtering features,
filtering products have a number of additional
tools to help parents control their childrens
Internet activities. Other tools available to
parents include monitoring and reporting features
that allow supervising adults to know which sites
a minor has visited and what other types of
activities a minor has engaged in online. Id.
49. The District Court found that [f]ilters are
widely available and easy to obtain, and that
[f]iltering programs are fairly easy to install,
configure, and use and require only minimal
effort by the end user to configure and update.
Id. At 793. The court found that [i]nstalling and
setting up a filter will usually take a typical
computer user no more than ten or fifteen
minutes. The installation and set-up process is not
technically complex and does not require any special
training or knowledge. Id. at 794. The court then
considered the evidence regarding the
effectiveness of filters. It found that:
[f]iltering products have improved over time and
are now more effective than ever before. This is
because, as with all software, the filtering
companies have addressed problems with the
earlier versions of the products in an attempt to
make their products better. Another reason the
effectiveness of filtering products has improved
is that many products now provide multiple
layers of filtering. Whereas many filters once
only relied on black lists or white lists, many of
todays products utilize black lists, white lists,
and real-time, dynamic filtering to catch any
inappropriate sites that have not previously been
61
F-107
classified by the product. There is a high level of
competition in the field of Internet content
filtering. That factor, along with the development
of new technologies, has also caused the products
to improve over time.
Id. at 794-95 (citations omitted).
50. The District Court then found that:
[o]ne of the features of filtering programs that
adds to their effectiveness is that they have built-
in mechanisms to prevent children from
bypassing or circumventing the filters, including
password protection and other devices to prevent
children from uninstalling the product or changing
the settings. Some products even have a tamper
detection feature, by which they can detect when
someone is trying to uninstall or disable the
product, and then cut off Internet access
altogether until it has been properly
reconfigured. Filtering companies actively take
steps to make sure that children are not able to
come up with ways to circumvent their filters.
Filtering companies monitor the Web to identify
any methods for circumventing filters, and when
such methods are found, the filtering companies
respond by putting in extra protections in an
attempt to make sure that those methods do not
succeed with their products.
Id. at 795 (citations omitted). The court also
found that [i]t is difficult for children to
circumvent filters because of the technical ability
and expertise necessary to do so . Id. Finally,
the court found that filters generally block about
95% of sexually explicit material. Id.
51. After describing filtering technology, the
District Court concluded that the Government
failed to successfully defend against the
plaintiffs assertion that filter software and the
Governments promotion and support thereof is a
less restrictive alternative to COPA. Id. at 813.
The court reasoned that unlike COPA there are no
fines or prison sentences associated with filters which
would chill speech. Also unlike COPA, filters are
fully customizable and may be set for different
ages and for different categories of speech or may
be disabled altogether for adult use. As a result,
filters are less restrictive than COPA. Id. (citations
omitted).
Law Animated World, 31 August 2017
F-108 ACLU v. Michael B. Mukasey, AG of the US. [US-CA: 3rd Circuit]
52. The District Court also concluded that the
Government failed to show that filters are not at
least as effective as COPA at protecting minors
from harmful material on the Web. Id. At 814.
The court determined that COPA will not reach
sexually explicit materials on the Web that originate
from foreign sources, its affirmative defenses are not
effective, and it is unlikely that COPA will be enforced
widely. The court found that:
filters block sexually explicit foreign material on
the Web, parents can customize filter settings
depending on the ages of their children and what
type of content they find objectionable, and
filters are fairly easy to install and use. [F]ilters
are very effective at blocking potentially harmful
sexually explicit materials.
Id. at 815 (citations omitted). The court
concluded that [e]ven defendants own study shows
that all but the worst performing filters are far more
effective than COPA would be at protecting children
from sexually explicit material on the Web . Id.
53. The Government does not challenge the District
Courts factual findings and therefore we need not
set forth the evidence on which the court based its
findings. The Government does contend, however,
that the District Court erred in concluding that
filters are a less restrictive alternative because the
court applied a flawed analytical framework
and that filters cannot be considered a less
restrictive alternative because they are part of the
status quo. Appellants Br. at 43-44.
54. But the Supreme Courts statement on this issue
contravenes the Governments argument:
In considering this question, a court assumes that
certain protected speech may be regulated, and then
asks what is the least restrictive alternative that can be
used to achieve that goal . The purpose of the test is
to ensure that the speech is restricted no further than
necessary to achieve the goal, for it is important to
assure that legitimate speech is not chilled or punished.
For that reason, the test does not begin with the
status quo of existing regulations, then ask whether
the challenged restriction has some additional
ability to achieve Congress legitimate interest.
Any restriction on speech could be justified
under that analysis. Instead, the court should ask
whether the challenged regulation is the least restrictive
means among available, effective alternatives.
Law Animated World, 31 August 2017
(2017) 2 LAW
Ashcroft, 542 U.S. at 666, 124 S.Ct. at 2791. This
reasoning explains why the Court then instructed
the parties to update the factual record regarding
the effectiveness of filtering software so that
the District Court could determine whether
filters are less effective than COPA. Id. at 671,
124 S.Ct. at 2794. Accordingly, the Government is
incorrect in its assertion that the District Court applied
an erroneous analytical framework.
55. We agree with the District Courts conclusion that
filters and the Governments promotion of filters are
more effective than COPA. The Supreme Court
already has written how the Government could
act to promote and support the use of filters:
Congress undoubtedly may act to encourage the
use of filters. We have held that Congress can
give strong incentives to schools and libraries to
use them. It could also take steps to promote
their development by industry, and their use by
parents. It is incorrect, for that reason, to say that
filters are part of the current regulatory status
quo. The need for parental cooperation does not
automatically disqualify a proposed less restrictive
alternative. In enacting COPA, Congress said its
goal was to prevent the widespread availability
of the Internet from providing opportunities for
minors to access materials through the World
Wide Web in a manner that can frustrate parental
supervision or control. COPA presumes that
parents lack the ability, not the will, to monitor what
their children see. By enacting programs to promote use
of filtering software, Congress could give parents that
ability without subjecting protected speech to severe
penalties.
Id. at 669-70, 124 S.Ct. at 2793 (citations omitted).
56. As the District Court pointed out, filters can be
used to block foreign Web sites, which COPA does not
regulate. Though the Government contends that
COPA applies to foreign Web sites, the Supreme
Court already has rejected the Governments
construction of the statute. In Ashcroft the Court
stated that:
a filter can prevent minors from seeing all
pornography, not just pornography posted to the
Web from America. COPA does not prevent
minors from having access to those foreign
harmful materials. [I]f COPA is upheld,
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(2017) 2 LAW ACLU v. Michael B. Mukasey, AG of the US. [US-CA: 3rd Circuit]
providers of the materials that would be covered by the
statute simply can move their operations overseas.
Id. at 667, 124 S.Ct. at 2792. In light of the
Supreme Courts express conclusion that COPA
does not apply to foreign Websites a determination
that does not depend upon the facts developed at
the later trial in the District Court we cannot
construe COPA to apply to foreign Web sites.
57. Given the vast quantity of speech that COPA
does not cover but that filters do cover, it is
apparent that filters are more effective in
advancing Congresss interest, as it made plain it
is in COPA. Moreover, filters are more flexible
than COPA because parents can tailor them to
their own values and needs and to the age and
maturity of their children and thus use an
appropriate flexible approach differing from
COPAs one size fits all approach. Finally, the
evidence makes clear that, although not flawless, with
proper use filters are highly effective in preventing minors
from accessing sexually explicit material on the Web.
58. At oral argument, the Government made
much of a study that found that only 54 percent of
parents use filters. But the Government has
neglected the fact that this figure represents a 65
percent increase from a prior study done four
years earlier, which indicates that significantly
more families are using filters. App. at 159-60.
Furthermore, the circumstance that some parents
choose not to use filters does not mean that filters are
not an effective alternative to COPA. Though we
recognize that some of those parents may be
indifferent to what their children see, others may
have decided to use other methods to protect their
children such as by placing the family computer
in the living room, instead of their childrens
bedroom or trust that their children will
voluntarily avoid harmful material on the
Internet. Studies have shown that the primary
reason that parents do not use filters is that they
think they are unnecessary because they trust
their children and do not see a need to block
content. Id. at 160, 164, 278, 1567. The Government
simply has not carried its burden of showing that COPA
is a more effective method than filters in advancing the
Governments compelling interest as evidenced in COPA.
63
F-109
59. In addition to being more effective, it is clear
that filters are less restrictive than COPA. As the
Supreme Court has stated:
[f]ilters are less restrictive than COPA. They
impose selective restrictions on speech at the receiving
end, not universal restrictions at the source. Under a
filtering regime, adults without children may
gain access to speech they have a right to see
without having to identify themselves or provide
their credit card information. Even adults with
children may obtain access to the same speech on
the same terms simply by turning off the filter on
their home computers. Above all, promoting the
use of filters does not condemn as criminal any category
of speech, and so the potential chilling effect is
eliminated, or at least much diminished. All of these
things are true, moreover, regardless of how broadly
or narrowly the definitions in COPA are construed.
Ashcroft, 542 U.S. at 667, 124 S.Ct. at 2792.
Although the Supreme Court made this statement
after reviewing the record from the hearing on the
preliminary injunction, the evidence produced at
the trial on the merits confirms the Courts initial
impression. Unlike COPA, filters permit adults to
determine if and when they want to use them and do not
subject speakers to criminal or civil penalties.
60. During oral argument, the Government
contended that the First Amendment does not prohibit
Congress from adopting a belt-and-suspenders
approach to addressing the compelling government
interest of protecting minors from accessing harmful
material on the Web, with filters acting as the belt
and COPA as the suspenders. But as counsel for
plaintiffs correctly pointed out, under the First
Amendment, if the belt works at least as effectively as
the suspenders, then the Government cannot prosecute
people for not wearing suspenders. Here, based on
the prior litigation in the Supreme Court and this
Court in ACLU II and the District Courts
findings on the remand, the Government has not
shown that COPA is a more effective and less
restrictive alternative to the use of filters and the
Governments promotion of them in effectuating
COPAs purposes. Indeed, we would reach this
conclusion on the basis of either the prior
litigation or the District Courts findings on the
remand. Accordingly, COPA fails the third prong of
a strict scrutiny analysis and is unconstitutional.
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F-110 ACLU v. Michael B. Mukasey, AG of the US. [US-CA: 3rd Circuit]
C. VAGUENESS AND OVERBREADTH
61. The Government also challenges the District
Courts decision that COPA facially violates the First
and Fifth Amendments because it is impermissibly
vague and overbroad.
1. VAGUENESS
62. The Supreme Court recently described the
vagueness doctrine:
Vagueness doctrine is an outgrowth not of the First
Amendment, but of the Due Process Clause of the
Fifth Amendment. A conviction fails to comport
with due process if the statute under which it is
obtained fails to provide a person of ordinary
intelligence fair notice of what is prohibited, or
is so standardless that it authorizes or
encourages seriously discriminatory
enforcement. Although ordinarily a plaintiff who
engages in some conduct that is clearly proscribed
cannot complain of the vagueness of the law as
applied to the conduct of others, we have relaxed
that requirement in the First Amendment context,
permitting plaintiffs to argue that a statute is
overbroad because it is unclear whether it regulates a
substantial amount of protected speech. But perfect
clarity and precise guidance have never been
required even of regulations that restrict
expressive activity.
Williams, 128 S.Ct. at 1845 (citations, quotation
marks, and brackets omitted). The Court further
explained:
What renders a statute vague is not the possibility
that it will sometimes be difficult to determine
whether the incriminating fact it establishes has been
proved; but rather the indeterminacy of precisely
what that fact is. Thus, we have struck down
statutes that tied criminal culpability to whether
the defendants conduct was annoying or indecent
wholly subjective judgments without statutory
definitions, narrowing context, or settled legal
meanings.
Id. at 1846.
63. Our discussion in ACLU II of the question of
whether COPA is impermissibly vague was quite
limited but in a footnote we stated that we
considered COPAs use of the term minor as
Law Animated World, 31 August 2017
(2017) 2 LAW
incorporated in COPAs definition of material
that is harmful to minors to be impermissibly
vague. We reached this conclusion because we
believed that a Web publisher will be forced to
guess at the bottom end of the range of ages to
which the statute applies, and thus will not have
fair notice of what conduct would subject them
to criminal sanctions under COPA and will be
deterred from engaging in a wide range of
constitutionally protected speech. 322 F.3d at
268 n.37.
64. The District Court on the remand concluded
that COPA is vague for several reasons. First, the
court pointed out that COPA utilizes two different
scienter requirements knowingly and intentionally
but does not define either standard. Gonzales, 478
F. Supp. 2d at 816-17. Second, the court determined
that although Congress intended COPA to apply
solely to commercial pornographers, the phrase
communication for commercial purposes as modified
by the phrase engaged in the business does not limit
COPAs application to commercial pornographers. Id.
at 817. Thus, Web publishers that are not
commercial pornographers will be uncertain as to
whether they will face prosecution under the
statute, chilling their speech. Id. Third, the court
found that the definition of minor as any person
under 17 years of age creates vagueness in COPA
because materials that could have serious
literary, artistic, political, or scientific value for
a 16-year-old would not necessarily have the
same value for a three-year-old. Id. Thus, Web
publishers cannot tell which of these minors
should be considered in deciding the content of
their Web sites. Id. at 817-18. Fourth, the court
stated that COPAs use of the phrase as a whole is
vague because it is unclear how that phrase would apply
to the Web. Id. at 818.
65. The Government contends that the District
Court erred in finding COPA impermissibly
vague and argues that the statutory provisions
that the District Court concluded rendered the
statute vague instead served to limit the reach of
the statute.
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(2017) 2 LAW ACLU v. Michael B. Mukasey, AG of the US. [US-CA: 3rd Circuit]
66. We are bound by our conclusion in ACLU II
that COPAs definition of minor renders the
statute vague. Furthermore we agree with the
District Courts conclusion that COPAs use of
the phrases and terms communication for
commercial purposes, as a whole, intentional,
and knowing renders it vague, for the reasons
the District Court stated in its opinion.
2. OVERBREADTH
67. The Supreme Court also addressed the First
Amendment overbreadth doctrine in Williams, stating
that:
[A] statute is facially invalid if it prohibits a
substantial amount of protected speech. The doctrine
seeks to strike a balance between competing
social costs. On the one hand, the threat of
enforcement of an overbroad law deters people
from engaging in constitutionally protected
speech, inhibiting the free exchange of ideas. On
the other hand, invalidating a law that in some of
its applications is perfectly constitutional
particularly a law directed at conduct so
antisocial that it has been made criminal has
obvious harmful effects. In order to maintain an
appropriate balance, we have vigorously
enforced the requirement that a statutes
overbreadth be substantial, not only in an
absolute sense, but also relative to the statutes
plainly legitimate sweep. Invalidation for
overbreadth is strong medicine that is not to be casually
employed.
128 S.Ct. at 1838 (citations and quotation
marks omitted).
68. In ACLU II we held that COPA is substantially
overbroad because:
it places significant burdens on Web publishers
communication of speech that is constitutionally
protected as to adults and adults ability to access
such speech. In so doing, COPA encroaches upon a
significant amount of protected speech beyond that
which the Government may target constitutionally in
preventing childrens exposure to material that is
obscene for minors.
322 F.3d at 266-67. We found that COPAs
definition of material harmful to minors
impermissibly places at risk a wide spectrum of
speech that is constitutionally protected because
65
F-111
it calls for evaluation of any material on the
Web in isolation. Id. at 267. Thus, we explained:
an isolated item located somewhere on a Web
site that meets the harmful to minors definition
can subject the publisher of the site to liability
under COPA, even though the entire Web page
(or Web site) that provides the context for the item
would be constitutionally protected for adults
(and indeed, may be protected as to minors).
Id. We also found that COPAs definition of
minors renders the statute overinclusive
because it broadens the reach of material that is
harmful to minors under the statute to
encompass a vast array of speech that is clearly
protected for adults and indeed, may not be
obscene as to older minors .
Id. at 268. We next found that COPAs definition of
commercial purposes rendered the statute overbroad
for the same reasons that it failed strict scrutiny. Id. at
269. We also found that COPAs application of
community standards exacerbates these constitutional
problems in that it further widens the spectrum of
protected speech that COPA affects. Id. at 270. We
stated that COPA essentially requires that every Web
publisher subject to the statute abide by the most
restrictive and conservative states community
standards in order to avoid criminal liability. Id.
(quoting ACLU I, 217 F.3d at 166). Finally, we
found that there was no available narrowing
construction that would make COPA constitutional. Id.
at 270-71. These conclusions bind us here.
69. The District Court also found that COPA is
overbroad for several reasons. First, the court
determined that the vagueness of the phrases
communication for commercial purposes and
engaged in the business means that COPA
could apply to a wide swath of the Web and thus
COPA would prohibit and chill a substantial
amount of constitutionally protected speech for
adults. Gonzales, 478 F. Supp. 2d at 819. Second,
because the definition of minor includes any
person under 17, Web publishers do not have fair
notice regarding what they can place on the Web
that will not be considered harmful to any minor.
Id. Thus, the definition of minor renders COPA
overinclusive because it broadens the statute to
encompass a large array of protected speech. Id.
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F-112 ACLU v. Michael B. Mukasey, AG of the US. [US-CA: 3rd Circuit]
Finally the court found that because the statute
does not reference commercial pornographers, it
found that it could not read such a limitation into the
statute to save it from being overbroad. Id. at 819-20.
70. The Government claims that COPA is not
overbroad, but it is clear that our prior decision in
ACLU II binds us on this issue. It is apparent that
COPA, like the Communications Decency Act
before it, effectively suppresses a large amount
of speech that adults have a constitutional right to
receive and to address to one another, Reno, 521
U.S. at 874, 117 S.Ct. at 2346, and thus is
overbroad. For this reason, COPA violates the First
Amendment.
V. CONCLUSION
71. In sum, COPA cannot withstand a strict scrutiny,
vagueness, or overbreadth analysis and thus is
unconstitutional. We reach our result both through the
application of the law-of-the-case doctrine to our
determination in ACLU II and on the basis of our
independent analysis of COPA and would reach the
same result on either basis standing alone. For the
foregoing reasons, we will affirm the District Courts
March 22, 2007 order.
*****
AMERICAN LIBRARY ASSOCIATION
ON PORNOGRAPHY
The American Library Association (ALA) stated
in its Jan. 18, 2001 press release titled "American
Library Association Votes to Challenge CIPA,"
that:
"The American Library Association (ALA)...
contends the Children's Internet Protection Act
(CIPA) is unconstitutional and creates an
infringement of First Amendment protections.
No filtering software successfully differentiates
constitutionally protected speech from illegal
speech on the Internet. Even the federal
commission appointed to study child safety on
the Internet concluded filters are not effective in
blocking all content that some may find
objectionable, but they do block much useful and
constitutionally protected information."
*****
Law Animated World, 31 August 2017
(2017) 2 LAW
AMERICAN CIVIL LIBERTIES UNION
ON PORNOGRAPHY
"The ACLU does not support pornography or child
porn. However, we do oppose virtually all forms of
censorship. Possessing certain books or films, even
pornographic ones, should not make one a criminal.
Once society starts censoring 'bad or offensive' ideas,
it becomes very difficult to draw the line. As the
saying goes, 'one man's art is another man's
pornography.' As for child pornography, the ACLU
supports the right of the government to prosecute the
makers of child pornography for exploiting minors."
"Anyone who uses a child in pornography is violating
the law and should be prosecuted, period."
"H.R. 4623 ['Child Obscenity and Pornography
Prevention Act of 2002'] seeks to ban 'virtual child
pornography,' and prohibit pandering of images as
child pornography even if the images are not obscene
or child pornography. It creates a whole new category
of prohibited speech, prohibits using sexually explicit
materials to facilitate offenses against minors, creates
extraterritorial jurisdiction, and creates a database of
minors who have been exploited in the creation of
child pornography.
The ACLU opposes child pornography that uses real
children in its depictions. Material, however, which is
produced without using real children, and is not
otherwise obscene, is protected under the First
Amendment." [NOTE: H.R. 4623 - The Child Obscenity
and Pornography Prevention Act of 2002 was referred in
Oct. 2002 to the Senate Committee on the Judiciary. It died
in committee without becoming a law.]
"In its attempt to deny minors access to certain speech
on the Internet, [Child Online Protection Act] COPA
criminalizes a wide range of speech that is
unquestionably protected for adults... // certainly
agree that many parents believe that online porn is a
threat, and deserve workable solutions. The ACLU
has argued that there are more effective solutions than
criminal laws like COPA, that include voluntary use
of filtering programs in the home, and better
education for parents and kids so that kids don't
inadvertently encounter inappropriate material
online... // [O]nline there is no way to keep minors
from viewing speech without denying access to most
adults as well. That makes the web environment
totally different than the convenience stores. It is
precisely that distinction that led all nine justices of
the Supreme Court to strike down Congress' first
attempt to criminalize 'indecent' speech online."
*****
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(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI] ISC-81
(Carried from p. 18)

If ye (judges) do indeed The Book

Fear that they would be And Wisdom,
Unable to keep the limits For your instruction.
Ordained by God, And fear God,
There is no blame on either And know that God
Of them if she give Is well acquainted
Something for her freedom. With all things.
These are the limits A perusal of the aforesaid verses reveals, that
Ordained by God; divorce for the reason of mutual incompatibility is
So do not transgress them allowed. There is however a recorded word of
If any do transgress caution that the parties could act in haste and
The limits ordained by God, then repent, and thereafter again reunite, and yet
Such persons wrong
again, separate. To prevent erratic and fitful
(Themselves as well as others)
repeated separations and reunions, a limit of two
230. So if a husband divorces is prescribed. In other words,
Divorces his wife (irrevocably),
reconciliation after two divorces is allowed. After
He cannot, after that,
Re-marry her until the second divorce, the parties must definitely
After she has married make up their mind, either to dissolve their ties
Another husband and permanently, or to live together honourably, in
He has divorced her. mutual love and forbearance to hold together on
In that case there is equitable terms. However, if separation is inevitable
No blame on either of them even on reunion after the second divorce, easy reunion
If they re-unite, provided is not permitted. The husband and wife are forbidden
They feel that they from casting aspersions on one another. They are
Can keep the limits mandated to recognize, what is right and
Ordained by God. honourable, on a collective consideration of all
Such are the limits circumstances. After the divorce, a husband cannot
Ordained by God, seek the return of gifts or properties, he may have given
Which He makes plain to his wife. Such retention by the wife is permitted, only
To those who understand. in recognition that the wife is economically weaker. An
231.When ye divorce exception has been carved out in the second part
Women, and they fulfil of verse 229, that in situations where the freedom of
The term of their (Iddat) the wife could suffer on account of the husband refusing
Either taken them back to dissolve the marriage, and perhaps, also treat her
On equitable terms with cruelty. It is permissible for the wife, in such a
Or set them free situation, to extend some material consideration to the
On equitable terms; husband. Separation of this kind, at the instance of the
But do not take them back wife, is called khula. Verse 230 is in continuation
To injure them, (or) to take of the first part of verse 229. The instant verse
Undue advantage; recognizes the permissibility of reunion after two
If any one does that, divorces. When divorce is pronounced for the
He wrongs his own soul. third time, between the same parties, it becomes
Do not treat Gods Signs irreversible, until the woman marries some other
As a jest,
man and he divorces her (or is otherwise released
But solemnly rehearse
Gods favours on you, from the matrimonial tie, on account of his
And the fact that He death). The Quranic expectation in verse 230,
Send down to you requires the husband to restrain himself, from

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dissolving the matrimonial tie, on a sudden gust If they both decide

of temper or anger. Verse 231 provides, that a On weaning,
man who takes back his wife after two divorces, By mutual consent,
must not put pressure on her, to prejudice her And after due consultation,
rights in any way. Remarriage must only be on There is no blame on them.
equitable terms, whereupon, the husband and If ye decide
On a foster-mother
wife are expected to lead a clean and honourable
For your offspring,
life, respecting each others personalities. The There is no blame on you,
Quranic message is, that the husband should either take
Provided ye pay (the mother)
back the wife on equitable terms, or should set her free
What ye offered,
with kindness.
On equitable terms.
(iv) The verses referred to above need to be But fear God and know
understood along with verses 232 and 233, That God sees well
contained in section 20 of sura II, of the What ye do.
Quran. The above two verses are extracted A perusal of the above verses reveals, that the
below: termination of the contract of marriage, is treated as a
232. When ye divorce serious matter for family and social life. And as such,
Women, and they fulfil every lawful advice, which can bring back those who
The term of their (Iddat), had lived together earlier, provided there is mutual love
Do not prevent them and they can live with each other on honourable terms,
From marrying is commended. After following the above
Their (former) husbands, parameters, the Quran ordains, that it is not right
If they mutually agree for outsiders to prevent the reunion of the husband and
On equitable terms. wife. Verse 233 is in the midst of the regulations
This instruction on divorce. It applies primarily to cases of
Is for all amongst you, divorce, where some definite rule is necessary, as
Who believe in God the father and mother would not, on account of
And the Last Day. divorce, probably be on good terms, and the
That is (the course Making for) more virtue
interest of children must be safeguarded. Since
And purity amongst you,
And God knows, the language of verse 233 is general, the edict
And ye know not. contained therein is interpreted, as applying
equally to the father and mother, inasmuch as,
233. The mothers shall give suck
To their offspring each must fulfil his or her part, in the fostering of
For two whole years, children.
If the father desires (v) The last relevant verse in sura II of the
To complete the term. Quran, is contained in section 31, namely,
But he shall bear the cost verse 237. The same is reproduced below:
Of their food and clothing
237. And if ye divorce them
On equitable terms.
Before consummation,
No soul shall have
But after the fixation
A burden laid on it
Of a dower for them,
Greater than it can bear.
Then the half of the dower
No mother shall be (Is due to them), unless
Treated unfairly They remit it
On account of his child, Or (the mans half) is remitted
An heir shall be chargeable By him in whose hands
In the same way. Is the marriage tie;

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(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI] ISC-83

And the remission Their reconciliation:

(Of the mans half)
Is the nearest to righteousness.
And do not forget
Liberality between yourselves.
For God sees well
All that ye do.
In case of divorce before consummation of
marriage, it is recognized, that only half the
dower fixed needed to be refunded to the wife. It
is however open to the wife, to remit the half due
to her. And likewise, it is open to the husband to
remit the half which he is entitled to deduct (and
thus pay the whole dower amount).
19. Reference is also necessary to verses 34 and
35, contained in section 6, as well as, verse
128 contained in section 19, of sura IV. All
the above verses are extracted below:
34. Men are the protectors
And maintainers of women,
Because God has given
The one more (strength)
Than the other, and because
They support them
From their means.
Therefore the righteous women
Are devoutly obedient, and guard
In (the husbands) absence
What God would have them
guard.
As to those women
On whose part ye fear
Disloyalty and ill-conduct,
Admonish them (first),
(Next), refuse to share their beds,
(And last) beat them (lightly);
But if they return to obedience,
Seek not against them
Means (of annoyance):
For God is Most High,
Great (above you all).
35. If ye fear a breach
Between them twain,
Appoint (two) arbiters,
One from his family,
And the other from hers;
If they wish for peace,
God will cause
For God hath full knowledge,
And is acquainted
With all things.
Section 19, Sura IV
128. If a wife fears
Cruelty or desertion
On her husbands part,
There is no blame on them,
If they arrange
An amicable settlement
Between themselves;
And such settlement is best;
Even though mens souls
Are swayed by greed.
But if ye do good
And practice self-restraint
God is well-acquainted
With all that ye do.
The Quran declares men as protectors, and casts a duty
on them to maintain their women. In order to be
entitled to the husbands support, the Quran ordains
the women to be righteous, and to be devoutly obedient
to the husband, even in his absence. Verse 34,
extends to the husband the right to admonish his
wife who is either disloyal, or ill-conducts
herself. Such admonition can be by refusing to
share her bed, and as a last resort, even to beat
her lightly. Thereafter, if the woman does not
return to obedience, the husband is advised not to
use means of annoyance against her. Verse 35,
sets out the course of settlement of family disputes. It
postulates the appointment of two arbitrators
one representing the family of the husband, and
the other the family of the wife. The arbitrators are
mandated to explore the possibility of reconciliation. In
case reconciliation is not possible, dissolution is advised,
without publicity or mud-throwing or by resorting to
trickery or deception. Verse 128 provides for
divorce at the instance of the wife khula. It
provides for a situation where, the wife fears
cruelty or desertion on her husbands part. In
such a situation, her desire to seek an amicable
settlement, cannot be treated as an aspersion on
her. The couple must then settle to separate, on
most amicable terms. The husband is cautioned
not to be greedy. He is required to protect the

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ISC-84 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI] (2017) 2 LAW

wifes economic interest. In case of disputation Verse 1 above, it may be noticed, has reference
between the couple, for economic reasons, the Quran to the Prophet Muhammad himself. It is
ordains, that sanctity of the marriage itself, is far addressed in his capacity as teacher and
greater than any economic interest, and accordingly representative of the community. It endorses the
suggests, that if separation can be prevented by view, that of all things permitted, divorce is the most
providing some economic consideration to the wife, it is hateful in the sight of the God. Even though, the
better for the husband to make such a concession, than
verse provides for divorce, it proscribes the
to endanger the future of the wife and children.
husband from turning out his wife/wives from his
20. The last relevant verses 1 and 2, are house. It also forbids the wife/wives, to leave the
contained in section 1 of sura LXV. The house of their husband, except when they are
same are reproduced below: guilty. Those who transgress the above limitation,
1. Prophet! When ye are cautioned, that they are committing wrong to
Do divorce women, their own souls. Reconciliation is suggested, whenever
Divorce them at their it is possible. It is recommended at every stage. The
Prescribed periods,
first serious difference between the spouses is
And count (accurately)
Their prescribed periods:
first to be submitted to a family counsel, on
And fear God your Lord: which both sides are to be represented. The
And turn them not out verse requires the divorce to be pronounced,
Of their houses, nor shall only after the period of prohibitory waiting.
They (themselves) leave, Dower has to be paid, and due provisions have
Except in case they are to be made, by the husband, for many things on
Guilty of some open lewdness, equitable terms. On each aspect, there is to be
Those are limits consideration. Reconciliation is recommended till the
Set by God: and any last moment. The message contained in verse 2
Who transgresses the limits is, that everything should be done fairly, and all
Of God, does verily
interests should be safeguarded. It is ordained, that
Wrong his (own) soul:
Thou knowest not if
the parties should remember, that such matters
Perchance God will affect the most intimate aspect of their lives, and
Bring about thereafter therefore, have a bearing even in the spiritual
Some new situation. kingdom. It is therefore, that the verses
2. Thus when they fulfil extracted above, impress on the parties, to fear
Their term appointed, God, and ensure that their determination is just
Either take them back and true.
On equitable terms 21. The understanding of the verses of the Quran, is
Or part with them imperative in this case, because the petitioner and
On equitable terms; those supporting the petitoners case contend
And take for witness
inter alia, that talaq-e-biddat, is not in
Two persons from among you,
conformity with the unambiguous edicts of the
Endued with justice,
And establish the evidence Quran, and therefore, cannot be considered as
(As) before God. Such valid constituents of Muslim personal law.
Is the admonition given Part-4.
To him who believes Legislation in India, in the field of
In God and the Last Day. Muslim personal law:
And for those who fear
God, He (ever) prepares 22. It would be relevant to record, that personal
A way out, law dealing with the affairs of those professing the

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(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
Muslim religion, was also regulated by custom or usage.
It was also regulated by Shariat the Muslim
personal law. The status of Muslim women under
customs and usages adopted by Muslims, were
considered to be oppressive towards women.
Prior to the independence of India, Muslim women
organizations condemned customary law, as it adversely
affected their rights, under the Shariat. Muslim
women claimed, that the Muslim personal law be
made applicable to them. It is therefore, that the
Muslim Personal Law (Sharait) Application Act, 1937
(hereinafter referred to, as the Shariat Act), was
passed. It is essential to understand, the background
which resulted in the enactment of the Shariat Act. The
same is recorded in the statement of objects and
reasons, which is reproduced below:
For several years past it has been the cherished desire
of the Muslims of British India that Customary Law
should in no case take the place of Muslim Personal
Law. The matter has been repeatedly agitated in
the press as well as on the platform. The Jamiat-ul-
Ulema-i-Hind, the greatest Moslem religious body has
supported the demand and invited the attention of all
concerned to the urgent necessity of introducing a
measure to this effect. Customary Law is a
misnomer inasmuch as it has not any sound basis
to stand upon and is very much liable to frequent
changes and cannot be expected to attain at any
time in the future that certainty and definiteness
which must be the characteristic of all laws. The
status of Muslim women under the so-called Customary
Law is simply disgraceful. All the Muslim Women
Organisations have therefore condemned the Customary
Law as it adversely affects their rights. They demand
that the Muslim Personal Law (Shariat) should be made
applicable to them. The introduction of Muslim Personal
Law will automatically raise them to the position to
which they are naturally entitled. In addition to this
present measure, if enacted, would have very
salutary effect on society because it would
ensure certainty and definiteness in the mutual
rights and obligations of the public. Muslim
Personal Law (Shariat) exists in the form of a
veritable code and is too well known to admit of
any doubt or to entail any great labour in the
shape of research, which is the chief feature of
Customary Law. (emphases supplied by the Court)
23. Sections 2, 3 and 5 of the Shariat Act are
relevant and are extracted hereunder:
71
ISC-85
2. Application of personal law to Muslims.
Notwithstanding any customs or usage to the contrary,
in all questions (save questions relating to
agricultural land) regarding intestate succession,
special property of females, including personal
property inherited or obtained under contract or
gift or any other provision of Personal Law,
marriage, dissolution of marriage, including talaq, ila,
zihar, lian, khula and mubaraat, maintenance,
dower, guardianship, gifts, trusts and trust
properties, and wakfs (other than charities and
charitable institutions and charitable and
religious endowments) the rule of decision in cases
where the parties are Muslims shall be the Muslim
Personal Law (Shariat).
3. Power to make a declaration.
(1) Any person who satisfies the prescribed
authority
(a) that he is a Muslim, and
(b) that he is competent to contract within
the meaning of section 11 of the
Contract Act, 1872 (9 of 1872), and
(c) that he is a resident of the territories to
which this Act extends,
may by declaration in the prescribed form and
filed before the prescribed authority declare that
he desires to obtain the benefit of the provisions
of this section, and thereafter the provisions of
section 2 shall apply to the declarant and all his
minor children and their descendants as if in
addition to the matters enumerated therein
adoption, wills and legacies were also specified.
(2) Where the prescribed authority refuses to
accept a declaration under sub-section (1), the
person desiring to make the same may appeal to
such officer as the Government may, by general
or special order, appoint in this behalf, and such
officer may, if he is satisfied that the appellant is
entitled to make the declaration, order the
prescribed authority to accept the same.
*** *** *** *** ***
5. Dissolution of marriage by Court in certain
circumstances.
The District Judge may, on petition made by a
Muslim married woman, dissolve a marriage on
any ground recognized by Muslim Personal Law
(Shariat).
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ISC-86 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
A close examination of Section 2, extracted
above, leaves no room for any doubt, that custom
and usage, as it existed amongst Muslims, were
sought to be expressly done away with, to the
extent the same were contrary to Muslim
personal law. Section 2 also mandated, that
Muslim personal law (Shariat) would be
exclusively adopted as the rule of decision
in matters of intestate succession, special
property of females, including all questions
pertaining to personal property inherited or
obtained under contract or gift or any other
provision of personal law, marriage, dissolution
of marriage, including talaq, ila, zihar, lian, khula
and mubaraat, maintenance, dower, gifts, trusts
and trust properties, and wakfs . Section 3
added to the above list, adoption, wills and
legacies , subject to the declaration expressed
in Section 3.
24. It is relevant to highlight herein, that under Section
5 of the Shariat Act provided, that a Muslim woman
could seek dissolution of her marriage, on the grounds
recognized under the Muslim personal law. It would
also be relevant to highlight, that Section 5 of the
Shariat Act was deleted, and replaced by the Dissolution
of Muslim Marriages Act, 1939.
25. In the above context, it would be relevant to
mention, that there was no provision in the Hanafi
Code, of Muslim law for a married Muslim woman, to
seek dissolution of marriage, as of right. Accordingly,
Hanafi jurists had laid down, that in cases in
which the application of Hanafi law caused
hardship, it was permissible to apply the
principles of the Maliki, Shafii or Hanbali law.
This position was duly noticed in the introduction
to the 1939 Act, as well as, in the statement of its
objects and reasons. Be that as it may, the
alternatives suggested by the Hanafi jurists were
not being applied by courts. Accordingly, in order
to crystalise the grounds of dissolution of marriage, by a
Muslim woman, the 1939 Act, was enacted. The
statement of objects and reasons of the above
enactment is relevant, and is accordingly
extracted hereunder:
There is no proviso in the Hanafi Code of
Muslim Law enabling a married Muslim woman
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72
(2017) 2 LAW
to obtain a decree from the Court dissolving her
marriage in case the husband neglects to
maintain her, makes her life miserable by
deserting or persistently maltreating her or
absconds leaving her unprovided for and under
certain other circumstances.
The absence of such a provision has entailed
unspeakable misery to innumerable Muslim
women in British India. The Hanafi Jurists
however, have clearly laid down that in cases in
which the application of Hanafi Law causes
hardship, it is permissible to apply the provisions
of the Maliki, Shafii or Hambali Law.
Acting on this principle the Ulemas have issued
fatwas to the effect that in cases enumerated in
clause 3, Part A of this Bill (now see section 2 of
the Act), a married Muslim woman may obtain a
decree dissolving her marriage. A lucid
exposition of this principle can be found in the
book called Heelatun Najeza published by
Maulana Ashraf Ali Sahib who has made an
exhaustive study of the provisions of Maliki Law
which under the circumstances prevailing in
India may be applied to such cases. This has
been approved by a large number of Ulemas who
have put their seals of approval on the book.
As the Courts are sure to hesitate to apply the Maliki
Law to the case of a Muslim woman, legislation
recognizing and enforcing the above mentioned
principle is called for in order to relieve the sufferings of
countless Muslim women. (emphasis ours)
One more point remains in connection with the
dissolution of marriages. It is this. The Courts in
British India have held in a number of cases that
the apostasy of a married Muslim woman ipso
facto dissolves her marriage. This view has been
repeatedly challenged at the bar, but the Courts
continue to stick to precedents created by rulings
based on an erroneous view of the Muslim Law.
The Ulemas have issued Fatwas supporting non-
dissolution of marriage by reason of wifes
apostasy. The Muslim community has, again and
again, given expression to its supreme
dissatisfaction with the view held by the Courts.
Any number of articles have been appearing in
the press demanding legislation to rectify the
mistake committed by the Courts; hence clause 5
(now see section 4) is proposed to be
incorporated in this Bill.
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
Thus, by this Bill the whole Law relating to
dissolution of marriages is brought at one place
and consolidated in the hope that it would supply
a very long felt want of the Muslim Community
in India.
26. The Dissolution of Muslim Marriages Act,
1939 provided, the grounds on which a Muslim
woman, could seek dissolution of marriage.
Section 2 of the enactment is reproduced below:
2. Grounds for decree for dissolution of marriage.
A woman married under Muslim law shall be
entitled to obtain a decree for the dissolution of
her marriage on any one or more of the following
grounds, namely:
(i) that the whereabouts of the husband have
not been known for a period of four
years;
(ii) that the husband has neglected or has
failed to provide for her maintenance for
a period of two years;
(iii) that the husband has been sentenced to
imprisonment for a period of seven years
or upwards;
(iv) that the husband has failed to perform,
without reasonable cause, his marital
obligations for a period of three years;
(v) that the husband was impotent at the time
of the marriage and continues to be so;
(vi) that the husband has been insane for a
period of two years or is suffering from
leprosy or virulent venereal disease;
(vii) that she, having been given in marriage
by her father or other guardian before
she attained the age of fifteen years,
repudiated the marriage before attaining
the age of eighteen years:
Provided that the marriage has not been
consummated;
(viii) that the husband treats her with cruelty,
that is to say,
(a) habitually assaults her or makes her life
miserable by cruelty of conduct even if
such conduct does not amount to
physical ill-treatment, or
(b) associates with women of evil repute or
leads an infamous life, or
73
ISC-87
(c) attempts to force her to lead an immoral
life, or
(d) disposes of her property or prevents her
exercising her legal rights over it, or
(e) obstructs her in the observance of her
religious profession or practice, or
(f) if he has more wives than one, does not
treat her equitably in accordance with
the injunctions of the Quran;
(ix) on any other ground which is recognised
as valid for the dissolution of marriages
under Muslim law:
Provided that
(a) no decree shall be passed on ground (iii)
until the sentence has become final;
(b) a decree passed on ground (i) shall not
take effect for a period of six months from
the date of such decree, and if the
husband appears either in person or
through an authorised agent within that
period and satisfies the Court that he is
prepared to perform his conjugal duties,
the Court shall set aside the said decree;
and
(c) before passing a decree on ground (v) the
Court shall, on application by the
husband, make an order requiring the
husband to satisfy the Court within a
period of one year from the date of such
order that he has ceased to be impotent,
and if the husband so satisfies the Court
within such period, no decree shall be
passed on the said ground.
27. We may record here, that the Dissolution of
Muslim Marriages Act, 1939, is irrelevant for the
present controversy on account of the fact, that the issue
in hand does not pertain to the dissolution of marriage
at the behest of a Muslim wife (but pertains to the
dissolution of marriage, at the behest of a Muslim
husband). The provisions of the instant enactment
are relevant, to understand the submissions
advanced by learned counsel, representing the
petitioners, as also the respondents, based on their
individual perspectives.
Law Animated World, 31 August 2017
ISC-88 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
Part-5.
Abrogation of the practice of talaq-e-biddat by
legislation, the world over, in Islamic, as well as,
non-Islamic States:
28. Muslim Law in India and Abroad, by Tahir
Mahmood and Saif Mahmood (Universal Law
Publishing Co. Pvt. Ltd., New Delhi, 2012 edition),
records the following position about the abrogation
of the practice of talaq-e-biddat as a means of divorce,
through statutory enactments, the world over. The
countries which have abolished talaq-e-biddat
have been divided into Arab States, Southeast
Asian States, and Subcontinental States. We have
maintained the above classifications, in order to
establish their factual positions. Firstly, to
demonstrate that the practice was prevalent across the
globe in States having sizeable Muslim populations.
And secondly, that the practice has been done away
with, by way of legislation, in the countries referred to
below.
A. Laws of Arab States
(i) ALGERIA: Is a theocratic State, which declares
Islam to be its official religion. Muslims of the
Sunni sect constitute its majority. On the issue in
hand, it has enacted the following legislation:
Code of Family Law 1984
Law No.84-11 of 1984 as amended in 2005
Article 49. Divorce cannot be established
except by a judgment of the court, preceded
by an attempt at reconciliation for a period
not exceeding three months.
(ii) EGYPT: Is a secular State. Muslims of the
Sunni sect constitute its majority. On the issue in
hand, it has enacted the following legislation:
Law of Personal Status 1929
Law 25 of 1929 as amended by Law 100 of 1985
Article 1. A Talaq pronounced under the
effect of intoxication or compulsion
shall not be effective.
Article 2. A conditional Talaq which is not
meant to take effect immediately
shall have no effect if it is used as
an inducement to do some act or to
abstain from it.
Law Animated World, 31 August 2017
74
(2017) 2 LAW
Article 3. A Talaq accompanied by a number,
expressly or impliedly, shall not be
effective except as a single
revocable divorce.
Article 4. Symbolic expressions of talaq, i.e.,
words which may or may not bear
the implication of a divorce, shall
not effect a divorce unless the
husband actually intended it.
(iii) IRAQ: Is a theocratic State, which declares
Islam to be its official religion. The majority of
Iraqs Muslims is Shias. On the issue in hand, it
has enacted the following legislation:
Code of Personal Status 1959
Law 188 of 1959 as amended by Law 90 of 1987
Article 35. No divorce shall be effective when
pronounced by the persons mentioned below:
(a) one who is intoxicated, insane or imbecile,
under duress, or not in his senses due to
anger, sudden calamity, old age or
sickness;
(b) a person in death-sickness or in a
condition which in all probabilities is fatal
and of which he actually dies, survived by
his wife.
*** *** ***
*** ***
Article 37. (1) Where a Talaq is coupled with a
number, express or implied, not more than
one divorce shall take place.
(2) If a woman is divorced thrice on three
separate occasions by her husband, no
revocation or remarriage would be
permissible after that.
*** *** ***
*** ***
Article 39. (1) When a person intends to divorce
his wife, he shall institute a suit in the
Court of Personal Status requesting that it
be effected and that an order be issued
therefor. If a person cannot so approach
the court, registration of the divorce in
the court during the period of Iddat shall
be binding on him.
(2) The certificate of marriage shall remain
valid till it is cancelled by the court.
(to be continued)
 SOLVING 9/11: DECEPTION THAT CHANGED THE WORLD
Chapter X
WHO RUNS THE
OBAMA WHITE HOUSE?
The day after Barack Obama was elected
president, the Israeli press proudly proclaimed
that the new president had chosen an Israeli,
Rahm Emanuel, to manage the new
administration. "Obama's first pick: Israeli Rahm
Emanuel as chief of staff" was the Ha'aretz
headline of November 6, 2008. The controlled
press in the United States, however, keeps the
American public unaware that Obama's new chief of
staff is an Israeli, with terrorist roots and a sworn
loyalty to the state of Israel.
Rahm Emanuel of Chicago, Chief of Staff of the Obama White House,
served in the Israeli army in 1991 and is the son of a real Zionist
terrorist. The late Sherman Skolnick of Chicago called Emanuel the
"Acting Deputy Chief for North America of the Mossad - Israeli
Intelligence." Skolnick reported that Emanuel's father Benjamin had
been "part of the Israeli assassin team that murdered Sweden's Count
[Folke] Bernadotte" in 1948. Bernadotte was the envoy of the United
Nations in Palestine who sought to find a solution to the UN Partition
Plan that gave Palestinian land to Jews from Poland and Russia.
Here are the key extracts from the Ha'aretz
article:
A day after his historic election to become the
first black American president, Barack Obama
stepped into the role of president-elect yesterday,
inviting Emanuel to join his administration as
Continued from Law Animated World, 15 August 2017
issue; emphases in bold ours - IMS.
75
Christopher Bollyn
White House chief of staff, Democratic officials
said.
Emanuel, a former Bill Clinton adviser, is the
son of a Jerusalem-born pediatrician who was a
member of the Irgun (Etzel or IZL), a militant
Zionist group that operated in Palestine between
1931 and 1948
Rahm Emanuel's father, Benjamin, yesterday
refused to comment on the report that his son was
appointed White House chief of staff. He told
Ha'aretz that he would only comment after
speaking to his son. "Obama is a pro-Israeli
leader and will be a friend to Israel," he said,
adding that he was pleased with Obama's
election. He also said his son is the namesake of
Rahamim, a Lehi combatant who was killed.
Rahm Emanuel is named after a Zionist fighter
who belonged to the Stern Gang, which was a
terrorist organization linked with the Nazis.
Before moving to Chicago, his father was an active
member of this terrorist group of assassins and
bombers, which was also known as LEHI. This
information is not discussed on CNN. The
controlled media censors these disturbing, but
important facts.
Emanuel's father, Benjamin, told Ma'ariv, a
Hebrew-language Israeli paper, that his son's
appointment would be good for Israel. "Obviously he
will influence the president to be pro-Israel," the
Jerusalem Post reported. "Why wouldn't he be?
What is he, an Arab? He's not going to clean the
floors of the White House."
Rahm Emanuel with his brothers and father,
a Zionist terrorist from the Irgun and LEHI
Law Animated World, 31 August 2017
76 Solving 9/11: The Deception that changed the World (Christopher Bollyn) (2017) 2 LAW

The Obama White House chief of staff speaks source of the Emanuel quote that Republicans are
Hebrew and spends most summers in Tel Aviv, his "bad people who deserve a two-by-four upside
Israeli father proudly told Ma'ariv. After Emanuel their heads." Once again, the Times article,
was named chief of staff, none of the Zionist- entitled "Obama's Partisan, Profane Confidant
controlled media outlets in the United States mentioned Reins It In", conspicuously failed to mention
the Emanuel family roots with the Nazi-linked terror Emanuel's Israeli roots. Obviously, the New York
gangs in Palestine in the 1930s and 40s. Naftali Times clearly considers this information that it
Bendavid of the Zionist-owned Chicago Tribune, would prefer the reader not know. This is a
for example, wrote a book about Emanuel and perfect example how the Zionist-controlled media
spent a great deal of time with him, but controls public opinion by omitting important
completely avoided Rahm's Israeli roots in the information.
Tribune article he wrote on November 6.
"POLITICAL ASSASSIN" Bendavid wrote
that Emanuel "is best known as something of a
Democratic political assassin" who "might not appear
to be the obvious choice for White House chief of
staff for a president-elect who speaks eloquently
of setting aside partisan differences and bringing
the country together."
Emanuel is known for using gangster tactics to
threaten people. He once mailed a rotting dead fish
to a campaign pollster who had not produced
"Republicans are 'bad people who deserve a two-by-four upside their
results to Emanuel's liking. Sending a dead fish to a heads.'" - Rahm Emanuel, New York Times, January 24, 2009
person is a well-known Mafia message, which warns the
recipient that he will "sleep with the fishes" unless he
It should come as no surprise that the New
heeds the warning.
York Times article chooses not to mention
Emanuel's Israeli roots -- or the fact that his
Rolling Stone magazine revealed more of father was a member of the Irgun, the most
Emanuel's gangster behavior in an article entitled murderous terrorist group in Palestine in the
"The Enforcer" on October 20, 2005: 1930s and 40s. The New York Times is the
"The night after Clinton was elected, Emanuel leading Zionist-controlled newspaper in the
was so angry at the president's enemies that he United States by virtue of the fact that it has been
stood up at a celebratory dinner with colleagues
controlled by the Sulzberger family, founding
from the campaign, grabbed a steak knife and
began rattling off a list of betrayers, shouting
members of B'nai B'rith (secret organization of
"Dead! . . . Dead! . . . Dead!" and plunging the Jewish Freemasons) Lodge No. 1 of New York,
knife into the table after every name. "When he for more than one hundred years. Likewise, the
was done, the table looked like a lunar Chicago Tribune and Los Angeles Times are both
landscape," one campaign veteran recalls. "It was owned by a Chicago Zionist named Samuel Zell.
like something out of The Godfather. But that's
Rahm for you."
Emanuel certainly seems to have a penchant for
violence, which might not seem so unusual for a person Sam Zell's parents, named Zielonka,
named after two Irgun terrorists: one named left Poland in 1939.
Rahamim (Rahm), and the other an uncle named
Emanuel. Bendavid's book was cited by the New
York Times of January 24, 2009, as being the

Law Animated World, 31 August 2017 76

(2017) 2 LAW Solving 9/11: The Deception that changed the World (Christopher Bollyn)
The Zionist controlled media also failed to
investigate the evidence of Emanual's
involvement with the impeached Illinois
governor, Rod Blagojevich, and his role in the
activity that led to Blagojevich being removed
from office. Blagojevich specifically told CNN's
Larry King that he wanted the tapes of his
conversations with Rahm Emanuel released. So,
why weren't they? Why is Emanuel being
protected?
Impeached Illinois Governor Rod Blagojevich and Rahm Emanuel
Emanuel's brother, Ariel, is film-maker Michael
Moore's agent. The day after the election, Moore
joked about Emanuel's appointment on the Larry
King Show. Moore made a film about 9-11,
produced by the Weinstein brothers, which
completely avoided mentioning the many Israeli
connections to the terror attacks. This is a good
example of how the so-called "alternative" media
is just as controlled as is the "mainstream" media
by Zionist Jews.
Rahm and Ariel,
Michael Moore's
Hollywood agent
77
77
Americans should be aware that this violent and
uncouth Israeli is running the White House under
Barack Obama. The chief of staff controls the
people around the president - he decides who sees
the president, what he hears, and what he knows.
The people surrounding the president report to
the chief of staff. Emanuel is the intellectual handler
of President Obama (a continuation of the role he
has played for years) and the controller of the
White House. How do you think having an Israeli
gangster with terrorist roots running the White House
will affect U.S. relations with Iran, Russia, the
Palestinians - and the rest of the world?
Emanuel actually left the United States to
serve in the Israeli army in 1991. A person from
any other nation would lose his U.S. citizenship
for serving in a foreign military. Why are Israelis
running the U.S. government? The Zionists are in the
process of accumulating power and not afraid of
showing it or using it. This is a very dangerous
development.
NAMED AFTER LEHI TERRORIST
Emanuel's father said Rahm is "the namesake
of Rahamim, a Lehi combatant." LEHI, a.k.a. the
Stern Gang, was the most radical Zionist terrorist
group in the 1940s.
Stern Gang killed scores of British soldiers and
assassinated both Lord Moyne and Count Folke
Bernadotte (the United Nations envoy from Sweden).
They also killed hundreds of innocent Palestinians,
such as the civilian population of Deir Yassin. This
Zionist terror group was allied with the Nazis in
their war against the British. Both of Emanuel's
parents, Benjamin Emanuel (formerly Auerbach)
and Marsha Smulevitz, lived in Israel and are
related to Lehi fighters. This is to say that
Emanuel's father, a Jew, fought with the Nazis.
Why would a dedicated Zionist, born in
Jerusalem, and a dedicated member of a Zionist
terrorist organization, move to Chicago after the
creation of the state of Israel? Had he given up on
the Zionist state? Not at all, Benjamin Emanuel had
embarked on a new mission for Israel a mission for
life. After the failed "Lavon Affair," a series of
failed Zionist false-flag terror attacks in Egypt,
Israeli intelligence was revamped by Yossi Harel,
Law Animated World, 31 August 2017
78 Solving 9/11: The Deception that changed the World (Christopher Bollyn)
a.k.a. Joseph Hamburger. Israel sent scores of high-
level agents to the United States, often with an
American spouse. The Emanuel family of Chicago
is one of them; the Chertoff family of New Jersey
is another; Yossi Harel went to Los Angeles.
There are many more.
Rahm Emanuel is the same Israeli who ran the
White House under Bill Clinton, as one of
Clinton's senior advisors. Emanuel is the person
who pushed through the disastrous NAFTA
legislation, a bill that devastated the U.S.
manufacturing sector. It should be remembered
that it was during the Clinton administration, while the
president dallied with his chunky Jewish girlfriend, that
the foundation of the Zionist terror network that pulled
off 9-11 was laid. Now, Rahm Emanuel, the son of
a terrorist, is back in the Oval Office.
Emanuel is part of the Chicago-based team of
political Zionists with David Axelrod, Obama's chief
campaign strategist. Obama thanked Axelrod by
name during his victory speech in Chicago's
Grant Park. Axelrod's father, Joseph, a Jewish
immigrant from someplace near the Black Sea,
hanged himself in 1974 when David was a
nineteen-year-old student at the University of
Chicago. His mother was a communist journalist
in New York.
David Axelrod -
Obama's chief political
strategist and handler
Rahm Emanuel and David Axelrod have been
working together since 1984 when they teamed
up to help Paul Simon defeat Sen. Charles Percy
(R-Ill.). These hard-core Zionists were not working for
Law Animated World, 31 August 2017
(2017) 2 LAW
reform in Illinois; their only agenda was to defeat the
incumbent Sen. Percy because he was the chairman
of the Foreign Relations Committee and was
pushing for a settlement of the Palestinian-Israeli
conflict. These Zionist agents went on to manage
the Chicago mayoral campaign of Richard M.
Daley, the son of Richard J. Daley. Finally, these
two Zionists spearheaded the campaign to put
Barack Obama into the White House. Axelrod
and Emanuel, however, were sponsored by a
much higher Zionist Bettylu Saltzman, the
daughter of Chicago's super-Zionist, Philip M.
Klutznick.
Bettylu Saltzman -
daughter of Chicago's
Philip M. Klutznick
Axelrod has been creating and shaping Candidate
Obama since 1992. "Axelrod met Obama when the
senator was 30 years old and coordinating a
voter-registration drive in Chicago and Betty Lou
Saltzman, a doyenne of progressive politics in
Chicago, suggested that the two get to know each
other," the New York Times reported in early
2007. "In the 15 years since, Axelrod has worked
through Obama's life story again and again,
scouring it for usable political material."
Bettylu Saltzman has been supporting and
financing Obama's political career since 1992,
long before he ran for office. Saltzman is the only
daughter of the Zionist leader, Philip Morris
Klutznick. In 1992, when Obama was thirty years old,
Saltzman told Axelrod and others, "He will be our first
black president.'' Saltzman then commissioned
Axelrod to create Obama, the presidential
candidate.
78
(2017) 2 LAW Solving 9/11: The Deception that changed the World (Christopher Bollyn)
Philip M. Klutznick
Saltzman's father, Philip M. Klutznick, was Israel's
biggest supporter in Chicago. Klutznick, who passed
away in August 1999, was the former president of
B'nai B'rith International (1953-59), president of
the World Jewish Congress, general chairman of
the United Jewish Appeal (UJA), president of the
American Friends of the Hebrew University,
vice-president of the Jewish Welfare Board, a
founder of the Conference of Presidents of Major
Jewish Organizations, president of the Memorial
Foundation for Jewish Culture, and vice president
of the Conference on Jewish Material Claims
Against Germany, among other things.
Axelrod and Emanuel have been creating the Obama
image since 2003. "For four years Axelrod has had
camera crews tracking virtually everything
Obama has done in public chatting up World
War II vets in southern Illinois, visiting his
father's ancestral village in western Kenya -- and
there were days when the camera crews have
outnumbered the civilians," Ben Wallace-Wells
reported in the New York Times article of April
1, 2007.


79
CHANGE?
In October 2008 I warned readers that the Obama
ticket was really a hard-core Zionist ticket in disguise.
In my article "Colin Powell: Liar & War Criminal
Endorses Obama," I advised my readers of the
Israeli gangsters behind Obama:
Powell's endorsement of Obama, a puppet of the
Israeli Rahm Emanuel, has less to do with
Obama's African roots than with getting
Emanuel and his Zionist gangsters back into
control of the Oval Office. Emanuel, the real
boss of the Democratic party, is the son of a real
Israeli terrorist (Irgun and Lehi) and thug-in-
chief of the party.
What can we expect from the Obama
presidency? Elected on a platform of "Change"
after eight years of a very unpopular and
dictatorial Bush regime, we would expect a
substantial change from the disastrous policies of
the previous administration. So what changes will
we see? Will we see an end to the costly and illegal
wars in Iraq and Afghanistan? Will the senior
officials of the Bush administration who willfully
lied to start these wars of aggression be held
accountable for their war crimes? Will we finally
have a proper and independent investigation of 9-
11? Will the oppressive Department of Homeland
Security be dismantled?
If the war criminals are not held accountable
and the most egregious criminal policies of the
Bush administration are not changed and reversed
what exactly does the Obama "Change" slogan
mean? Changing the curtains? Changing the
Israelis in the White House?

-

MARXISM: HUMAN SOCIETY
Prof. V.V. Reddy, 
    
Price: Rs. 100/- only.
For details contact:
MARXIST STUDY FORUM, 6-3-1243/116,
M.S. Makta, HYDERABAD - 500 082.
Obama, the politician, was created by David Axelrod, Ph: 040 - 23300284; E-mail: mani.bal44@gmail.com
who writes his speeches and guides his political strategy.

79 Law Animated World, 31 August 2017

80 Solving 9/11: The Deception that changed the World (Christopher Bollyn)
Change of Zionist Jewish "investment bankers" at the
White House: Joshua Bolten, the son of a C.I.A. agent and
second Jewish chief of staff in U.S. history, greets Rahm
Emanuel, Obama's chief of staff, erstwhile investment banker,
and son of an Israeli terrorist. Bolten served in the
administration of George H. W. Bush (1989-93) before
becoming executive director of legal and governmental affairs
at Goldman Sachs (London, 1994-1999). He left Goldman
Sachs to serve as policy director for the presidential campaign
of George W. Bush (March 1999 to November 2000). Bolten
became Deputy Chief of Staff for George W. Bush in January
2001 and Chief of Staff in April 2006. Bolten is credited with
recruiting Henry Paulson - CEO of Goldman Sachs - to serve
as Treasury Secretary in July 2006. Paulson crafted the
disastrous A.I.G. bailout in which Goldman Sachs became the
largest single recipient of taxpayer funds ($12.9 billion), an
immense financial scam in which the profits went to private
banks -- and the costs to the U.S. public.
WHO IS PETER ORSZAG?
One of the key players in the Obama
administration's $900 billion economic stimulus
package is Obama's new budget director Peter R.
Orszag. The forty-year-old Orszag is the director
of the Office of Management and Budget, the arm
of the White House responsible for crafting the
federal budget and overseeing the effectiveness of
federal programs. He worked closely with Rahm
Emanuel in the Clinton administration - when the
disastrous NAFTA legislation was passed - and
was one of the first Obama appointees to be
approved.
Law Animated World, 31 August 2017
(2017) 2 LAW
Peter R. Orszag
"In the coming years, no bureaucrat will be as
decisive as Peter Orszag," Ezra Klein wrote
recently in The American Prospect. So, who is
Peter Richard Orszag and what kind of decisions
will he make with the budget he controls? Based
on his background one would be well advised to
prepare for a financial train wreck.
Peter Orszag has an interesting resume. He has
played key roles in some of the biggest financial
scandals of our time. Orszag was, for example, an
advisor to the Russian Finance Ministry during
the reign of the Jewish oligarchs as they
plundered the wealth of Russia. He was an
advisor to the Central Bank of Iceland before it
crashed in 2008. During the Clinton
administration, Orszag was an advisor to Rahm
Emanuel and Bill Clinton on the disastrous
NAFTA bill that has devastated the U.S.
manufacturing sector.
Oddly, Orszag's background has received
virtually no attention in the media. He has a
troubling background, which deserves to be
looked at very carefully. Orszag, for example,
should start by explaining exactly what happened
to the Icelandic economy. Orszag was, after all,
the founder and president of the economic
consultancy firm which advised the Central Bank
of Iceland - before it went bankrupt. How did
Icelandic banks become so indebted? Ask Peter
Orszag.
80
(2017) 2 LAW Solving 9/11: The Deception that changed the World (Christopher Bollyn)
Orszag is an economist who served six years
in the Clinton administration (1993-98) under
Robert E. Rubin, the former treasury secretary
who recently resigned from his senior position at
the woefully mismanaged and nearly bankrupt
Citigroup. The fact that Orszag was a protg of
the now disgraced Rubin certainly does not bode
well for the Obama administration. Rubin
strongly opposed the regulation of derivatives
when such regulation was proposed in 1997.
Credit derivatives of mortgage-backed securities
were the key reason for the recent failure of a
number of large financial institutions, including
AIG and Citigroup.
In 1999, Rubin joined Citigroup as a board
member and a participant "in strategic managerial
and operational matters of the company." The
Wall Street Journal noted that Citigroup
shareholders suffered losses of more than 70
percent since Rubin joined the firm and that he
encouraged changes that led the firm to the brink
of collapse. In December 2008, investors filed a
lawsuit contending that Citigroup executives,
including Rubin, sold shares at inflated prices
while concealing the firm's risks.
Orszag, a Jew, served on the president's
Council of Economic Advisers in 1993, under
Rubin, when the Israeli Rahm Emanuel, Clinton's
senior adviser, was pushing the disastrous
NAFTA legislation through Congress. Prior to
joining the Clinton team, Orszag was an
economic adviser for the Russian Ministry of
Finance in Moscow from 1992-93. This was a
period of rampant financial criminality during
which many Russian mineral assets came under
the control of the so-called Jewish oligarchs who
became instant billionaires. Most of these
oligarchs fled Russia when their crimes were
exposed and now live in Britain or Israel, where
they obtained citizenship.
Born in Boston on December 16, 1968, Orszag
graduated from Princeton University in 1991. He
then attended the London School of Economics,
where he earned a degree in 1992 and where he
obtained his PhD in 1997. The London School of
81
81
Economics was established by members of the
Fabian Society, who believed in advancing
socialism through gradual reforms. The Fabian
Society is a British socialist movement, whose
purpose is to advance the principles of social
democracy via gradualist and reformist, rather
than revolutionary means. The ideology of the
Fabians is said to be described in the quote,
"Fabianism feeds on Capitalism, but excretes
Communism."
In 1998, after serving in the Clinton
administration, Orszag co-founded an economic
consulting group company with his brother and
Joseph Stiglitz called Sebago Associates, where
he served as president through 2007. The firm's
clients have included the World Bank, the Nordic
Council of Ministers, and most notably, the
Central Bank of Iceland. The once prosperous
economy of Iceland has been devastated by the
current economic crisis, which its citizens say
was carried out by a gang of financial criminals
who followed disastrous policies and advice -
provided by Peter Orszag and Company.
Americans would be well advised to be
extremely vigilant with dangerous "Young Turks"
like Peter Orszag and Rahm Emanuel running the
Obama White House and the U.S. budget.
The United States government today is not unlike
the oil tanker Sirius Star, hijacked by Somali pirates,
except that the ship of state has been taken over by an
organized gang of Zionist pirates, an organization most
people don't even know exists. This organization was
created by members of the Zionist terror groups,
the Hagana, Irgun, Lehi, and their Mossad
network. Members of these groups were sent to
the United States in the 1950s to raise dedicated
Zionist agents that would look and sound like
Americans - but think like Israelis. In this way
Zionists have gained control over our government
and media without the passengers even noticing.
The only thing that most Americans notice is that
the voyage is not as smooth as they had expected
and the ship seems to be sinking. The Zionist-
controlled media assures us, however, that all is
well. Dream on.
Law Animated World, 31 August 2017
82 Solving 9/11: The Deception that changed the World (Christopher Bollyn)
Israeli intelligence is like the criminal
organization, Quantum, in the latest James Bond
film. They are everywhere, supporting politicians
on both sides of the aisle, creating and running
governments from the left and the right, yet you
don't even know they exist. Over the past six
decades, Israeli agents have infiltrated every
agency of the U.S. government and gained access
to the most critical computer networks.
In order to understand what the Obama
administration will mean for America and the
world, it is essential to understand the Zionist
agents behind Obama.
Finis
***
Sources and Recommended Reading
Bendavid, Naftali, "Rahm Emanuel mulls chief of
staff role in Barack Obama's administration," Chicago
Tribune, November 6, 2008
http://www.chicagotribune.com/news/nationworld/chi
-rahm6nov06,0,2553769.story
Bollyn, Christopher, "Son of a Zionist Terrorist:
Rahm Emanuel's Dirty Secret," November 17, 2006
http://www.rumormillnews.com/cgi-
bin/archive.cgi/read/95806
Bollyn, Christopher, "Colin Powell: Liar & War
Criminal Endorses Obama," October 16, 2008
Bollyn, Christopher, "ELRON - VOXEO: The Israeli
Defense Firm That Tallies the Iowa Caucus,"
December 31, 2007
Bumiller, Elisabeth, "The Brothers Emanuel," New
York Times, June 15, 1997
"Emanuel to be Obama's chief of staff," Jerusalem
Post, November 6, 2008
Green, Joshua, "The Enforcer," Rolling Stone,
(2017) 2 LAW
The Israeli Who Runs the Obama White House,
November 6, 2008
Final Edit August 24, 2009
Latest Correction - February 22, 2010
(to be continued)
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Times, April 1, 2007

Law Animated World, 31 August 2017 82

(2017) 2 LAW Reverent Tributes to Prof. V.V. Reddy
Iran has opened possibly
the world's biggest bookstore
Is the country turning the page on literary censorship?
Image: REUTERS/Dado Ruvic 21 Jul 2017
Courtesy: John McKenna at www.worldeconomicforum.org
In a country where literary censorship is official
government policy, the fact that Iran has opened what
could be the worlds biggest bookstore is all the more
astonishing. Located in the Abbasabad Hills in the
north-east of the Iranian capital, the Tehran Book
Garden was officially opened in July -
described by Tehran mayor Mohammad Baqer
Qalibaf as a big cultural event in the country so that
our children can make better use of this cultural and
academic opportunity. The Book Garden hosts
bookshops, an art gallery and 10 theatres and
amphitheatres. It also has a dedicated section for
children and young adults that houses age-
appropriate literature .
WORLD BEATER?
Construction of the Tehran Book Garden
was completed in 2016. It occupies a 110,000
square-metre site within the Abbasabad Complex,
which also includes the Sacred Defence Garden
Museum and the National Library and Archives
of Iran. The internal space hosting its bookstores,
galleries and theatres measures 65,000 square
metres. If all of this indoor space is counted, then
the book garden easily wins the title of the worlds
83
EASING CENSORSHIP
The Book Garden was first proposed back in 2004,
due to the popularity of the Tehran International Book
Fair showing a clear appetite among Iranians to both
read and discuss books. Following decades of literary
censorship, Iran today is a country of 78 million
people with just 1500 book shops. In previous years
publishers have been known to be banned and books
confiscated at the book fair. However, when Irans
supreme leader Ayatollah Ali Khamenei spent time
speaking with avant-garde publishers at the book fair
in 2015, some believed it was a sign that restrictions on what
could and could not be published within the Islamic Republic
were being loosened. Previously banned novels such as
Tracy Chevaliers Girl With a Pearl Earring, To Have and
Have Not by Ernest Hemingway, and Dostoevskys The
Gambler have all in recent years been published in
Farsi. Equally, the length of time it takes to vet books
has shortened from several years to a few months.
However, censorship remains in place.
Mohammad Selgi, head of book publishing at the
ministry, said words such as wine, the names of foreign
animals and pets, and names of certain foreign presidents
were banned from publication. These latest censures come
in addition to a series of bans on Iranian authors introduced
by the government of previous president Mahmoud
Ahmadinejad. Books banned include Mahmoud
Dowlatabadis prize-winning novel The Colonel, which takes
a critical look at the fallout from the Islamic Revolution of
1979.
*****
REVERENT TRIBUTES &
PROFOUND CONDOLENCES
We regret to inform our readers that Prof. V.V. Reddy,
Retired Professor of Economics, Kakatiya
University & REC, Warangal, and one of
our editorial advisers, is no more; he
expired on 24 August 2017 at the age of
85 years. An able and affectionate
teacher, a sincere and committed
communist and reputed author of some
illuminating books, his last book was in
Telugu titled Marxism and Human
Society (
 -

 
) published by Marxist
largest bookstore. The current Guinness world record
holder is the Barnes & Noble Bookstore on Fifth
Avenue, New York City less than a quarter of the size
of the Tehran Book Garden, closed its doors to
customers in 2014.
83
Study Forum, 2016. Our respectful tributes in his memory
and profound condolences to all his near and dear, including
his wife Dr. Saraswathi, son Krishna Reddy and daughters
Suneetha and Sudha. - I.M. Sharma, Editor.
***
Law Animated World, 31 August 2017
 84 Law Animated World {31 August 2017}
Robert Southey Statue: National Gallery Southey paintings
HIS BOOK S
My days among the Dead are past;
Around me I behold,
Where'er these casual eyes are cast,
The mighty minds of old;
My never-failing friends are they,
With whom I converse day by day.
With them I take delight in weal,
And seek relief in woe;
And while I understand and feel
How much to them I owe,
My cheeks have often been bedew'd
With tears of thoughtful gratitude.
My thoughts are with the Dead, with them
I live in long-past years,
Their virtues love, their faults condemn,
Partake their hopes and fears,
And from their lessons seek and find
Instruction with an humble mind.
My hopes are with the Dead, anon
My place with them will be,
And I with them shall travel on
Through all Futurity;
Yet leaving here a name, I trust,
That will not perish in the dust.
***
GO VALENTINE
Go, Valentine, and tell that lovely maid
Whom fancy still will portray to my sight,
How here I linger in this sullen shade,
This dreary gloom of dull monastic night;
Say, that every joy of life remote
At evening's closing hour I quit the throng,
Listening in solitude the ring-dome's note,
Who pours like me her solitary song;
Say, that of her absence calls the sorrowing sigh;
Say, that of all her charms I love to speak,
In fancy feel the magic of her eye,
In fancy view the smile illume her cheek,
Court the lone hour when silence stills the grove,
And heave the sigh of memory and of love.
[*ROBERT SOUTHEY (12 August 1774 - 21 March 1843) was
an English poet of the Romantic school; Poet Laureate for 30
years; also a literary scholar, historian {Wikipedia}]
*****
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Postal Reg. No. HD/1098/2017-19
THE BATTLE OF BLENHEIM
- Robert Southey*
It was a summer evening;
Old Kaspars work was done,
Parodying Southeys poem
And he before his cottage door
Was sitting in the sun;
And by him sported on the green
His little grandchild Wilhelmine.
She saw her brother Peterkin / Roll something large and round,
Which he beside the rivulet / In playing there had found.
He came to ask what he had found,
That was so large, and smooth, and round.
Old Kaspar took it from the boy, / Who stood expectant by;
And then the old man shook his head, / And with a natural sigh,
Tis some poor fellows skull, said he,
Who fell in the great victory.
I find them in the garden, / For theres many here about;
And often, when I go to plow, / The plowshare turns them out;
For many thousand men, said he,
Were slain in that great victory.
Now tell us what twas all about, / Young Peterkin, he cries;
And little Wilhelmine looks up / With wonder-waiting eyes;
Now tell us all about the war,
And what they fought each other for.
It was the English, Kaspar cried, / Who put the French to rout;
But what they fought each other for, / I could not well make out;
But everybody said, quoth he, / That twas a famous victory.
My father lived at Blenheim then, / Yon little stream hard by;
They burnt his dwelling to the ground,
And he was forced to fly;
So with his wife and child he fled,
Nor had he where to rest his head.
With fire and sword the country round / Was wasted far and wide,
And many a childing mother then, / And new-born baby, died;
But things like that, you know, must be
At every famous victory.
They say it was a shocking sight / After the field was won;
For many thousand bodies here / Lay rotting in the sun;
But things like that, you know, must be
After a famous victory.
Great praise the Duke of Marlboro won,
And our good Prince Eugene.
Why, twas a very wicked thing! / Said little Wilhelmine.
Nay, nay, my little girl, quoth he; / It was a famous victory.
And everybody praised the Duke / Who this great fight did win.
But what good came of it at last? / Quoth little Peterkin.
Why, that I cannot tell, said he;
But twas a famous victory.
*****
84