Child Porn ‘Pandering’ Law Upheld by Supreme Court, 7-2

U.S. v. Williams concerned a man swapping nonpornographic pictures of children with an undercover agent in a chat room. Michael Williams demanded that the agent provide explicit pictures before Williams would send explicit images of his 4-year-old daughter. He offered a link in the chat room to explicit pictures of several “actual children,” after which a Secret Service raid of his home found on two hard drives “real children” portrayed in sex acts. The 11th Circuit upheld Williams’ possession conviction but reversed the pandering conviction.

Congress feared porn traffickers would evade conviction if prosecution were limited to material that could be “proved” to feature actual children, said the majority opinion by Justice Antonin Scalia. The arrival of Internet distribution and virtual imaging makes such proof “nearly impossible,” the opinion said.

Scalia said federal law defines “sexually explicit conduct” like the way a New York statute that’s constitutional does. The federal law won’t cover “the sorts of sex scenes found in R-rated movies” because they don’t “explicitly” show intercourse, only suggest it, he wrote. Also different from R-rated movies, “simulated” intercourse refers to an “explicit” portrayal that, “through camera tricks or otherwise,” may not have happened, the opinion said. The law’s limitation to “actual children” clears the bar set by the high-court’s decision in Ashcroft v. Free Speech Coalition, Scalia said: “This change eliminates any possibility that virtual child pornography or sex between youthful-looking actors” could be covered by “simulated.” Amazon.com certainly doesn’t believe it’s selling R-rated films with children engaged in real or simulated sex and isn’t trying to make customers believe that, Scalia said.

Commercial Speech and Offers of Virtual Child Porn

The 11th Circuit mistakenly thought that only commercial speech could be “categorically excluded” from First Amendment protection, the opinion said: In the manner of obscenity, offers of unlawful material, commercial or not, “have no social value” and thus no speech protection. The “abstract advocacy of illegality” differs conceptually and isn’t banned, Scalia added. The appeals court made a “strange constitutional calculus” in saying the government can’t punish fraudulent offers of illegal products, which should be “doubly excluded” from First Amendment protection, he said.

Virtual child porn, accurately advertised, isn’t banned, Scalia said, answering a dissent by Justice David Souter, joined by Justice Ruth Bader Ginsburg. They said the majority was “silently overruling” Free Speech Coalition and an earlier ruling protecting “proposals to transact” images. “Simulated child pornography will be as available as ever, so long as it is offered and sought as such, and not as real child pornography,” the majority opinion said.

Scalia dismissed a discussion by the 11th Circuit of hypothetical situations that could be illegal -- sending e-mails with innocent pictures of children and suggestive subject lines, such as “Good pics of kids in bed.” The appeals court’s larger error is assuming a statute is vague because “close cases can be envisioned,” the opinion said: The test is whether there’s an “indeterminacy” of what conduct is illegal. Believing that material is child porn, or intending another to believe that, are “clear questions of fact.”

It’s clear from the legislative history that Congress meant to criminalize materials promoted “with the intention of inciting sexual arousal” by purporting to show real children, said a concurring opinion by Justice John Paul Stevens, joined by Justice Stephen Breyer. A ban like that meets constitutional scrutiny, he said.

Child Safety the Only Legitimate Restriction

Previous Supreme Court rulings on child porn make the safety of children the overriding concern, Souter’s dissent said. “The absence of a child model means that the image is constitutionally protected,” he said. “It is not enough to say that the First Amendment does not protect proposals to commit crimes. For that rule rests on the assumption that the proposal is actually to commit a crime, not to do an act that may turn out to be no crime at all.” The majority impermissibly tries to extend the “factual frustration rule,” under which an intended act would be criminal if completed, the dissent said.

The high court is erasing the line drawn in Free Speech Coalition and other cases “between what the Government may suppress and what it may not,” Souter said. If a “deluded drug dealer” tries to sell baking powder as crack cocaine, “there is no risk of eliminating baking powder from trade in lawful commodities,” the dissent said, citing an example raised by the majority. But by pulling the real-child requirement from Supreme Court precedent, “a class of protected speech will disappear,” he said. The Supreme Court Brandenberg ruling on free speech in wartime applies to Williams, and “unmistakably insists that any limit on speech be grounded in a realistic, factual assessment of harm.”

Souter excoriated the majority for uncritically accepting Congress’ justification for the law: The effect of computer-generated porn on convictions for “the real thing.” Models “one day into adulthood” always have been able to make porn, he said. “There is no indication that prosecution has even been crippled by the need to prove young looking models were underage.” The government never has been able to show “a single case in which a defendant’s acquittal is reasonably attributable” to the “simulation or virtual” defense, Souter said in footnotes casting aside cases cited by the government. “Experience tells us to have faith in the jury system” in the absence of evidence that juries “have been rendering exploitation of children unpunishable,” the dissent said.