Supreme Court: Child Pornography Laws Stand

Some of the most interesting criminal law debates spring from the most fundamental protections provided by United States legislation. A recent Supreme Court ruling deals with the limits of free speech and when certain forms of expression are considered criminal offenses.

According to CNN International, the Supreme Court upheld a provision of the PROTECT Act (Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today) that prohibits the “pandering” of child pornography, in addition to possession and distribution.

Pandering, in this case, includes advertising, promotion, presentation, distribution and solicitation of pornographic images of children. Sources indicate that the ruling amounts to a criminalization of leading others to believe you have child porn – and that doesn’t sit well with some people.

The original case, U.S. v. Williams, involved Michael Williams and an FBI agent in an online chat room. Evidently, Williams offered to exchange images of himself with a toddler for images from the undercover agent. During an investigation, Williams was found to possess 22 images of child pornography, and was found guilty of possession and pandering of child porn.

An appeals court, though, reportedly overturned the pandering conviction, ruling that a mere discussion of child pornography is not necessarily criminal and is protected under the First Amendment. But the Supreme Court restored the conviction, ruling 7-2 that obscenity is not protected by the Constitution.

Opponents of the Court’s decision worry that the terms of the law are overly broad and that it could criminalize certain mainstream films, classical literature and even harmless emails containing images of children.

According to sources, the PROTECT Act includes a provision that prohibits images of children engaging in sexually explicit activities, including computer generated images, that pass the Miller Test for obscenity.

But, some dissenters have asked, what about books like Lolita, movies like Titanic and emails of grandchildren in pajamas that are titled something to the effect of “children in bed”? Though Justice Antonin Scalia wrote in the majority decision that such items will not be affected by the ruling, worries remain that the current wording of the law allows for such an interpretation.

This issue has proven sticky in the past: the 2003 PROTECT Act was created as a replacement for a 1996 anti-child pornography law that was later ruled unconstitutional by the Supreme Court because of its overly broad terms that could have been applied to educational and artistic materials portraying sexual activity among children.