High Court Surveys Child Pornography Law's Scope

By Robert Barnes
Washington Post Staff Writer
Wednesday, October 31, 2007

Several Supreme Court justices yesterday seemed to be looking for ways to save Congress's latest attempt to prosecute those who would promote child pornography, even though a lower court said the federal law violates free speech.

The justices struggled with whether the prohibitions Congress set up to try to stop the spread of child pornography, particularly on the Internet, were so broad that they could also apply to movie reviewers who wrote about depictions of teen sex in movies such as "American Beauty" and "Traffic," or to documentarians recording abuse in Third World countries.

But if the justices spent the first part of hour-long oral arguments constructing troublesome hypotheticals for Solicitor General Paul D. Clement, who was defending the federal law, the justices spent the latter part knocking them down.

"I had thought that the purpose of the First Amendment was to protect speech that had some value, and that the reason obscenity is excluded entirely from First Amendment protection is that it has no redeeming social value," Justice Antonin Scalia said.

Scalia was one of the dissenters in 2002 when the court struck down parts of the Child Pornography Protection Act because they were written so broadly that, as Justice Anthony M. Kennedy wrote, they could apply to a production of "Romeo and Juliet."

Congress responded in 2003 with the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act, known as the PROTECT Act. At issue in the case is a provision about the pandering of material as child pornography. It targets the person who "advertises, promotes, presents, distributes or solicits . . . any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe" that it is child pornography.

An appeals court in Atlanta said that was overly broad. It would apply to "any promoter -- be they a braggart, exaggerator, or outright liar -- who claims to have illegal pornography," the court said, even if he had nothing more than "a video of 'Our Gang,' a dirty handkerchief or an empty pocket."

That was not the case with the defendant at the center of the case, a Florida man named Michael Williams who supplied an undercover agent in an Internet chat room a link to images of minors engaged in sexual conduct. A subsequent search of Williams's home turned up additional child pornography. He is serving a five-year sentence for possession of the material, but is contesting the additional five years he received on the pandering charge.

Kennedy and Chief Justice John G. Roberts Jr. both pointed out to lawyer Richard Diaz of Coral Gables, Fla., that Williams didn't fit into any of the hypotheticals in which innocent behavior might be prosecuted. "Your client . . . didn't produce 'Lolita,' " Roberts said, but offered real child pornography.

But Diaz said the issue was the law. "It is unconstitutionally vague and overbroad, because on its face it captures protected speech about materials," Diaz said. "And it captures speech about materials that may not even, in fact, exist."

The American Booksellers Foundation for Free Expression and other groups made similar complaints to the court about the law.

But Clement said the law was carefully drawn to pursue those who either have real child pornography or want others to believe they have it, to trade or sell. Challenges to the law should come from those who believe they have been wrongly prosecuted, he said, not from those who are declaring the provision unconstitutional on its face.

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