- The Washington Times - Wednesday, October 31, 2007

The Bush administration urged the Supreme Court yesterday to uphold a law against the promotion of child pornography, rejecting First Amendment claims that it limits legitimate creative expression.

Opponents of the provision of the 2003 federal law that sets a five-year mandatory prison term for promoting child pornography have said movies that depict adolescent sex could fall under the law.

But Solicitor General Paul D. Clement, the administration’s top Supreme Court lawyer, said the law is not meant to cover movies such as “Lolita,” “Traffic,” “American Beauty” or “Titanic.”

“If you’re taking a movie like ‘Traffic’ or ‘American Beauty’ and you’re promoting it, you have nothing to worry about with this statute,” Mr. Clement said.

He asked the court to uphold the law as part of Congress’ effort to protect children by eliminating the widespread market in child pornography.

The 11th U.S. Circuit Court of Appeals struck down the provision because it makes a crime out of merely talking about illegal images or possessing innocent materials that someone else might think is pornography.

In the appeals court’s view, the law could apply to an e-mail sent by a grandparent and titled “Good pics of kids in bed,” showing grandchildren dressed in pajamas.

Richard Diaz, the attorney for a Florida man convicted under the law, told the court, “It captures protected speech about materials that may not even, in fact, exist.”

In 2002, the court struck down key provisions of a 1996 child pornography law because they called into question legitimate educational, scientific or artistic depictions of youthful sex.

Congress responded the next year with the PROTECT Act, which contains the provision under challenge in the current case.

Authorities arrested Michael Williams in an undercover operation aimed at combating child exploitation on the Internet. A Secret Service agent engaged Williams in an Internet chat room, where they swapped non-pornographic photographs. Williams advertised himself as “Dad of toddler has ‘good’ pics of her an me for swap of your toddler pics, or live cam.”

After the initial photo exchange, Williams posted seven images of minors engaging in sexually explicit conduct. Agents who executed a search warrant found 22 child porn images on Williams’ home computer.

Williams also was convicted of possession of child pornography. That conviction, and the resulting five-year prison term, is not being challenged.

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