Supreme Court Upholds Anti-Child Pornography Law

Special Report - May 23, 2008
The U.S. Supreme Court dealt a blow to peddlers of child pornography earlier this week in a 7-2 decision that upholds a 2003 federal statute criminalizing the pandering or solicitation of child pornography. The case, U.S. vs. Williams, involved a challenge to a portion of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (i.e., the “Protect Act”), which was passed by Congress in 2003 in response to a Supreme Court ruling that found sections of the 1996 Child Pornography Protect Act unconstitutional. Under the Protect Act, individuals that promote, distribute, advertise, present or solicit child pornography can receive a minimum sentence of five years in prison. Convicted child pornographer, Michael Williams—who pled guilty in 2004 to one count of possessing and one count of pandering child pornography—challenged the part of his conviction that dealt with pandering. Williams and his attorneys, supported in an amicus brief by the American Civil Liberties Union, argued that it was unconstitutional to convict him of pandering material he did not really possess (in this case, obscene pictures of his young daughter that he offered on the Internet). A district court disagreed, and convicted Mr. Williams on both counts. Williams appealed the ruling to the U.S Court of Appeals for the 11^th Circuit, which overturned his pandering conviction, ruling that the statute was “overbroad under the First Amendment and impermissibly vague under the Due Process Clause” of the Fifth Amendment.

On May 19, the U.S. Supreme Court overturned the 11^th Circuit’s decision, concluding that the Protect Act’s “requirements are clear questions of fact.” Writing for the majority in the decision, Justice Antonin Scalia addressed the fact that “the statute does not require the actual possession of child pornography,” noting: “Rather than targeting the underlying material, this statute bans the collateral speech that introduces such material into the child pornography distribution network.  Thus, an Internet user who solicits child pornography from an undercover agent violates the statute even if the officer possesses no child pornography.  Likewise, a person who advertises virtual child pornography as depicting actual children also falls within the reach of the statute.”

Justice Scalia also wrote in the decision: “Child pornography harms and debases the most defenseless of our citizens.  Both the State and Federal Governments have sought to suppress it for many years, only to find it proliferating through the new medium of the Internet.  This Court held unconstitutional Congress’s previous attempt to meet this new threat, and Congress responded with a carefully crafted attempt to eliminate the First Amendment problems we identified.  As far as the provision at issue in this case is concerned, that effort was successful.”

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