The nation’s fittingly tough 2003 child-pornography law is safe thanks to an equally tough 7-2 Supreme Court decision yesterday. Since its passage, the PROTECT Act has drawn fire for the five-year mandatory prison sentence it sets for not only possessing pornography but also for “pandering,” which includes falsely promoting or claiming to possess child pornography (a means of luring other predators). Some had the teremity to suggest that this standard is “vague” and poses First Amendment difficulties — up to and including a threat to films such as “Lolita” or a bathtub photo. The court rightly rejected that exquisite argument.
The legal controversy in United States v. Williams centered on whether the defendant’s false claim of possessing photos of his own daughter for trade on the Internet can be criminalized as the 2003 statute does. Michael Williams possessed child pornography: 22 images ” a fact never in dispute. (The images were of children other than the defendant’s daughter.) But the U.S. Court of Appeals for the 11th Circuit in Atlanta took seriously the argument that Williams‘ First Amendment rights protect his untruthful claim of child-porn possession in service to his trading of actual pornographic images of other children. The statute would criminalize even a sale of the Disney classic “Snow White,” the court complained as it ruled in Williams‘ favor in 2006, if the sales pitch were accompanied by a false claim of child pornography.
Well, yes, precisely. That is the standard ” fittingly tough and unambiguous. As Justice Antonin Scalia put it, writing for court: “Offers to deal in illegal products or otherwise engage in illegal activity do not acquire First Amendment protection when the offeror is mistaken about the factual predicate of his offer.”
The 11th Circuit’s position puts too fine a point on an unambiguous subject. The very claim of possession is what helps ensure the commission of this heinous crime. “Rather than targeting the underlying material, this statute bans the collateral speech that introduces such material into the child-pornography distribution network,” Justice Scalia explained.
Regarding the spurious comparisons to “Snow White” or bathtub photos, Justice Scalia explained the standard: A reasonable jury would not find in such cases “that the speaker believed and spoke in a manner that reflected the belief, or spoke in a manner intended to cause another to believe, that the picture displayed actual children engaged in ‘sexually explicit conduct’ as defined in the Act.” In other words, intent matters. Since “Lolita” is not child pornography, and since the sellers and creators of the film did not intend to spread child pornography, they are protected.
Those who side with Williams‘ supposed right to pander fail to realize that the First Amendment is subject to certain limits. (Don’t yell fire in a crowded auditorium, for example.) Speech that helps offenders commit heinous acts of child abuse ” or seeks to profit from the abuse ” is one important such limit.