Moral condemnation shapes the law. Photographer: Larry Downing-Pool/Getty Images
Moral condemnation shapes the law. Photographer: Larry Downing-Pool/Getty Images

Every era has a perversion it considers truly disgusting. In the present moment, our universal condemnation seems reserved for child pornography. Draconian federal laws impose harsh criminal penalties on both the exploitative production process and simple possession; the Supreme Court has upheld these laws, creating a special exception to the First Amendment’s protection of non-obscene speech. Today the court bent the legal force field again in a child-pornography case, allowing victims to recover damages not from those who created or distributed the pornography but from those who viewed it. Herewith an object lesson in how law reflects our moral preoccupations.

The law in question is far from straightforward. It specifies that if someone is convicted of a child-pornography-related offense, the court must order the defendant to pay “the full amount of the victim’s losses as determined by the court.” In Paroline v. United States, the court had to decide what Congress meant by “the full amount.”

The victim in the case, a woman identified in court papers only as “Amy,” was sexually abused by her uncle, who used the then 8- or 9-year-old-girl to make child pornography. The uncle was convicted, sentenced to a long prison term, and ordered to pay $6,000 in restitution. Fast forward to 2009, when Doyle Randall Paroline pleaded guilty to a single count of possessing child pornography for a cache of 150-300 images, two of which were of Amy.

Informed of Paroline’s conviction, Amy brought a claim for restitution for “the full amount” of damages she had suffered since childhood as a result of being photographed: some $3.4 million, including lost income and future treatment costs -- plus lawyers’ fees. The district court didn't think these damages were attributable to Paroline, but the U.S. Court of Appeals for the Fifth Circuit, sitting en banc, held that Paroline was individually liable for all of Amy’s damages – “the full amount” under the statute.

The majority opinion for the Supreme Court, written by Justice Anthony Kennedy, expressed profound sympathy for Amy. “The full extent of this victim’s suffering is hard to grasp,” wrote Kennedy. “Her abuser took away her childhood, her self-conception of her innocence, and her freedom from the kinds of nightmares and memories that most others will never know.” Of course Paroline wasn't Amy’s abuser. But, Kennedy continued, the “mental wrongs inflicted on her were in effect repeated” with the distribution of images because “she knew her humiliation and hurt were and would be renewed into the future.”

That sympathy was reflected in the disposition of the case. The court rejected the Fifth Circuit's sweeping interpretation, which would have rendered a viewer such as Paroline liable for all the victims’ injuries. After a long disquisition on the nature of the legal concepts of “proximate cause” and “injury in fact,” Kennedy concluded that Paroline hadn't sufficiently caused all of Amy’s damages to make him responsible. Rather than leaving it at that, though, Kennedy insisted that denying any restitution to Amy would have been at odds with Congress’s scheme. Paroline had “play[ed] a part in sustaining and aggravating this tragedy.” The court therefore held that the lower court must order restitution “in an amount that comports with the defendant’s relative role in a causal process that underlies the victim’s general losses.” The amount “would not be severe,” Kennedy wrote -- but it also wouldn't “be a token or nominal amount.” Refusing to state a formula for computing damages, Kennedy directed the lower courts to consider the role the defendant played in producing images, how many images he himself possessed and the number of people who might also possess those images.

The resulting law is sure to be a nightmare, and will inevitably result in much future litigation as the lower courts try to figure out what the court had in mind. In a sympathetic but firm dissent, Chief Justice John Roberts, joined by Justices Antonin Scalia and Clarence Thomas, rejected Kennedy's approach as an awkward compromise. Under Congress's “generic” restitution standard, Roberts reasoned, any amount would be arbitrary – “and arbitrary is not good enough for the criminal law.” If Congress wants viewers to pay restitution, Roberts explained, it should enact a law saying so explicitly.

Only Justice Sonia Sotomayor thought that Paroline should be held responsible for all Amy’s damages. In a solo dissent -- which is fast becoming a Sotomayor trademark – she insisted that “full amount” meant full amount. The approach reflected Sotomayor's increasing tendency to subscribe to a “let justice be done should the heavens fall” philosophy. Such an approach is admirable -- so long as it's confined to dissent, where it won’t shape events on the ground.

The majority opinion, on the other hand, will have to be messily applied. So why did the court’s liberals (plus swing vote Kennedy and conservative Justice Samuel Alito) grant lower courts huge discretion to impose criminal restitution on defendants whose conduct, strictly speaking, has only a tenuous connection to the victims’ injuries? The only possible explanation for this deviation from liberal legal principles is the gravitational pull of moral condemnation.

To contact the writer of this article: Noah Feldman at noah_feldman@harvard.edu.

To contact the editor responsible for this article: David Shipley at djshipley@bloomberg.net.