U.S. Supreme Court: Child Porn Purveyors Beware


The U.S. Supreme Court today warned purveyors of child pornography to beware, holding that the 2003 PROTECT Act constitutionally criminalizes promotion of such material.

In an opinion by Justice Antonin Scalia, the court held 7-2 that “offers to provide or requests to obtain” child pornography are not protected by the First Amendment, even if no actual child pornography is involved in the proposed transaction.

The defendant in this case, one Michael Williams, signed on to an internet chat room frequented by adults interested in child porn. He was noticed by a secret service agent who was on the site posing as another kiddie porn fan. After some conversation and an exchange of non-pornographic photos of children, Williams became suspicious of the agent and demanded that he produce actual pornographic photos. When the agent failed to do so, Williams posted a public warning in the chat room and a hyperlink to actual child porn of his own. A search warrant was issued and 22 images of real child pornography were found on his computer.

Williams pled guilty to both possession of child pornography (he did not contest this conviction on appeal) and “pandering” child pornography under the PROTECT Act. As to the latter conviction, he reserved the right to challenge the constitutionality of the law. That challenge led to today’s decision.

The majority opinion contains a detailed analysis of the law (see link below) and concludes: “In sum, we hold that offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment.”

In doing so, Justice Scalia brushed aside the opinion of the 11th Circuit Court of Appeal holding the pandering provision unconstitutional because “no child pornography need exist to trigger the statute”. On the contrary, Justice Scalia opined that “… an Internet user who solicits child pornography from an undercover agent violates the statute, even if the officer possesses no child pornography.”

Essentially, this decision means that if the requestor asks for and actually wants real child porn, the crime is complete at the moment of the request.

Justice Scalia‘s opinion also made short work of the First Amendment, holding: “Offers to engage in illegal transactions are categorically excluded from First Amendment protection.” And: “… offers to give or receive what it is unlawful to possess have no social value and thus, like obscenity, enjoy no First Amendment protection.”

All of which proves once again that the “originalist” Scalia is not the strict constructionist that he purports to be. A true strict constructionist with respect to freedom of speech once wrote, “I read ‘no law … abridging’ to mean ‘no law abridging’.” Smith v. California, 361 U.S. 147, 157 (1959) (BLACK, J., concurring)

Justice Hugo Black, renowned as not only a strict constructionist, but as a First Amendment “absolutist”, went on to explain:

The First Amendment, which is the supreme law of the land, has thus fixed its own value on freedom of speech and press by putting these freedoms wholly “beyond the reach” of federal power to abridge. No other provision of the Constitution purports to dilute the scope of these unequivocal commands of the First Amendment. Consequently, I do not believe that any federal agencies, including Congress and this Court, have power or authority to subordinate speech and press to what they think are “more important interests” The contrary notion is, in my judgment, court-made not Constitution-made.

Hugo Black‘s “no law means no law” position has never gained much traction with the high court, which has repeatedly allowed the federal government to expand the scope of laws “abridging” freedom of speech for any number of well-meaning but constitutionally misguided reasons. Today, it did so again.

__________________________________________________________

As noted by the court, the PROTECT ACT carries “the unlikely title of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 117 Stat. 650”. It is in 18 U. S. C. §2252A, the full text of which is on FindLaw at:

http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=18&sec=2252

The complete text of the opinion in the case, United States v. Williams, No. 06-694, in pdf format is also on FindLaw at:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=06-694

A biographical sketch of Justice Hugo Black is on Wikipedia at:

http://en.wikipedia.org/wiki/Hugo_Black

The Justice Black quotations cited above appear in a post by “eliserh” on the website “Everything2”. This post contains an interesting discussion of the meaning of the phrase “no law”. It is at:

http://everything2.com/index.pl?node_id=555378

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3 thoughts on “U.S. Supreme Court: Child Porn Purveyors Beware

  1. One big hole that I found in the ruling is that purveyors of “teen” or “school girl” pictures would be found liable because they are offering images that would cause people to believe that the models are underage. Obviously there are a lot of these sites on the Net.

  2. How such offers would or could be treated under the PROTECT Act is not at all clear to me, Farhan.

    “Teen” includes people 18 or 19 years old, which would mean they are adults and not subject to the child pornography laws.

    “School girls” could reasonably be interpreted to mean high school girls who are over 18 … or college girls, nearly all of whom are adults.

    Therefore, offers of photos of “teens” or “school girls” would not necessarily violate the PROTECT Act. It seems to me that it would take a more specific offer to provide child porn to come within the terms of that statute and, therefore, the Supreme Court’s decision interpreting the act.

    Thanks for the comment, Farhan, and my apologies for the delay in publishing and responding to it (occasioned by my visit to New York to attend to family matters).

  3. Pingback: The 1st Amendment — Dialog on Religion & Government « Free Legal Advice Isn’t Worth What You Pay For It …

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