Justices Uphold Child Porn Law

The American Booksellers Foundation for Free Expression and other groups had asked the court to overturn the law, saying it would restrict protected speech and allow for prosecution even if actual child pornography did not exist.

But Scalia methodically dismissed each of the hypotheticals raised by challengers and the appeals court, including whether movies that purported to show underage sex -- or even advertisements for such movies -- would violate the law. "We think it implausible that a reputable distributor of Hollywood movies, such as Amazon.com, believes that one of these films contains actual children engaging in actual or simulated sex on camera; and even more implausible that Amazon.com would intend to make its customers believe such a thing," he wrote.

Similarly, Scalia said, examples of grandparents swapping photos of their grandchildren in the bath or of sleeping toddlers titled "good pics of kids in bed" would not run afoul of the law. No reasonable juror, he wrote, would find that the speaker meant the pictures would show "actual children engaged in 'sexually explicit conduct' as defined in the act. The prosecutions would be thrown out at the threshold."

Scalia was one of the dissenters in 2002 when the court struck down parts of an earlier law, the Child Pornography Prevention Act of 1996, saying they were written so broadly that, as Justice Anthony M. Kennedy wrote, they could apply to a production of "Romeo and Juliet."

Justice John Paul Stevens had worried during oral arguments that a documentary of atrocities in foreign countries that showed soldiers raping children might violate the new law. But he joined the majority and wrote a concurring opinion saying he was convinced that Congress intended the law to apply only to material with a "lascivious purpose."

He said advertising, promotion and distribution of a documentary would not be captured by the law.

But Souter said that "the government does not get a free pass whenever it claims a worthy objective for curtailing speech" and that prosecutors had not shown a single case in which the law was necessary to prove a defendant guilty. "Perhaps I am wrong, but without some demonstration that juries have been rendering exploitation of children unpunishable, there is no excuse for cutting back on the First Amendment and no alternative to finding overbreadth in this act," he wrote.

The case is United States v. Williams.