Checking Child Pornography

The Supreme Court considers a pandering case.

MICHAEL WILLIAMS boasted in an Internet chat room that he had pictures of himself engaged in sex acts with his daughter, a toddler. He told another person in the chat room that he was willing to provide a link to the photos in exchange for pictures of other children in provocative poses or acts. His vile claims were monitored by an undercover cop; federal law enforcement officers then obtained a search warrant and found on Mr. Williams's computer photographs of children engaged in sexual acts.

Mr. Williams was charged with one count of possession of child pornography and one count of pandering under the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003. The basis for that second charge was Mr. Williams's online offer to supply the undercover cop with pictures of his daughter. Those pictures did not exist, but prosecutors concluded that Mr. Williams had violated the law's prohibition against knowingly advertising or promoting "any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material" is child pornography.

Mr. Williams challenged the constitutionality of the pandering provision and prevailed before a panel of the U.S. Court of Appeals for the 11th Circuit, which found the law vague, overly broad and in violation of the First Amendment's guarantee of free speech. Tomorrow the Supreme Court will hear arguments in Mr. Williams's case; it ought to reverse the appeals court.

We reach this conclusion with some concerns that the pandering law could be used to ensnare serious artists and academics who deal with difficult or controversial subject matter, or even parents who innocently take photos of their children. The law, however, requires proof that the person intentionally peddled the material as child pornography -- a provision that should protect those engaged in anything but mere prurience.

Most compelling is the government's profound interest in protecting children. Unlike pornography centered on sexual activities engaged in by adults, child pornography is never a "victimless crime." Children are not able to give informed consent to participate in sexual acts, and they are exploited and manipulated in every instance by adults intent on satisfying their impulses. The growth of the Internet has given pedophiles unprecedented access to such material. To choke off demand for the product, those who peddle child pornography must be held criminally liable -- even if they exaggerate or falsely advertise the material they hawk.