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Justices Uphold Child Porn Law
Case Involved Criminalization Of 'Pandering'

By Robert Barnes
Washington Post Staff Writer
Tuesday, May 20, 2008

The Supreme Court yesterday upheld an expansive federal law that punishes people who peddle or seek child pornography, saying Congress's remedy for a growing problem on the Internet does not violate free-speech guarantees.

In its 7 to 2 vote, the court also concluded that the law that criminalized "pandering" of real or purported child pornography online or through the mail is not unconstitutionally vague.

The majority dismissed what it called "fanciful hypotheticals" that the law might make movie reviewers or even unsuspecting grandparents subject to its standards.

"We hold that offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment," Justice Antonin Scalia wrote.

He said that "child pornography harms and debases the most defenseless of our citizens," and that the law was "carefully crafted" to respond to child pornography "proliferating through the new medium of the Internet."

Justices David H. Souter and Ruth Bader Ginsburg dissented, saying "the First Amendment protection of expression . . . requires a limit" even in pursuit of a worthy goal.

Federal authorities have said the law -- known as the PROTECT Act (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today) -- is vital in targeting the trafficking of online child pornography.

The law bars not only the exchange of sexually explicit images of children but also any attempt to convince another person that child pornography is available. The law covers offers that do not contain actual pornography and even offers in which no pictures exist.

Its pandering provision 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 depicts children engaged in sexual activity.

The provision is needed, authorities said, because it is often difficult to prove that pornography on the Internet involved real children.

But challengers said such language was overly broad, an argument that the U.S. Court of Appeals for the 11th Circuit in Atlanta had upheld. It would apply to "any promoter -- be they a braggart, exaggerator, or outright liar -- who claims to have illegal pornography," the appellate court said, even if the person had nothing more than "a video of 'Our Gang,' a dirty handkerchief or an empty pocket."

That was not the situation with the defendant in the case, Michael Williams, who sent an undercover agent in an Internet chat room a link to images of minors engaged in sexual conduct. A subsequent search of Williams's Florida 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.

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.

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