by Susan Brinkmann, OCDS
Staff Writer
(May 20, 2008) The Supreme Court issued a landmark ruling on Monday to uphold a law aimed at cracking down on the flourishing online exchange of child pornography.
In a 7-2 decision, the Court ruled in United States v. Williams that it is a federal crime to lead someone to believe that you have child pornography to show or exchange, even if you don’t actually possess it. The ruling brushed aside concerns that the law could be applied to mainstream movies that depict adolescent sex, to classic literature, or even to innocent e-mails that might describe pictures of grandchildren.
In an opinion written by Justice Antonin Scalia, the Court held that the law does not violate the First Amendment, noting that offers to engage in illegal transactions are not protected by the First Amendment. Justices Souter and Ginsburg dissented, arguing that porn peddlers who trick purchasers with fake child porn should not be prosecuted.
In 2002, the Court struck down an earlier law passed by Congress that would also prohibit materials that were not really child pornography, such as photos of youthful adults. As a result, Congress reacted by passing the current law, known as the “Prosecutorial Remedies and Other Tools to End Exploitation of Children Today (PROTECT) Act of 2003,” which the Court upheld today. This law provides for a mandatory 5-year sentence for promoting or attempting to obtain child pornography.
The case came to the Supreme Court after the 11th U.S. Circuit of Appeals struck down part of a 2003 law, saying that it makes a crime out of merely talking about illegal images or possessing innocent material that someone else might believe was pornographic.
In the appeals court’s view, the law could apply to an e-mail sent by a grandparent and entitled “Good pics of kids in bed,” showing grandchildren dressed in pajamas.
But Justic Scalia said the appeals court’s interpretation was unreasonable. “The prosecutions would be thrown out at the threshold,” he said.
In the majority opinion, Justice Antonin Scalia concluded that the statute “raises no constitutional problems whatever” and correctly rejected arguments that the Protect Act violates the First Amendment. Justice Scalia wrote: “In sum, we hold that offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment.”
The majority opinion concluded: ”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.”
“This is a very sound and reasoned decision that is long overdue,” said Jay Sekulow, Chief Counsel of the ACLJ, which represented members of Congress in this case. “It’s encouraging to see the high court finally give the government the tools it needs to punish those who pander or promote child pornography. It’s a well thought out decision that respects the First Amendment while reaching the proper conclusion that Congress acted appropriately and constitutionally in moving to battle child pornography online. We’re very pleased that the high court moved to protect the most vulnerable of our society – our children.”
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