Court Hears Child Pornography Arguments

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Court Hears Child Pornography Arguments

Special Report - November 1, 2007
The First Amendment was on trial against internet child pornography on Tuesday, October 30, before the U.S. Supreme Court. The Court heard oral arguments in the case of U. S. v. Williams, involving the constitutionality of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT Act), which prohibits knowingly advertising, promoting, presenting, distributing or soliciting material in a manner that reflects the belief, or is intended to cause another to believe, that the material is illegal child pornography. The Court considered whether the PROTECT Act is overly broad and impermissibly vague, and thus facially unconstitutional.

PROTECT was passed by Congress in 2003 in the wake of a declaration by the Supreme Court a year earlier that two provisions of its predecessor, the Child Pornography Prevention Act of 1996 (CPPA), were unconstitutionally overbroad. PROTECT was designed by Congress to remedy the defects with CPPA by outlawing pandering of child pornography over the internet and thus eliminating the widespread market in child pornography. In particular, Congress designed a solution to the problem of having to prove in every case that pornographic images of children were real rather than virtual, by prohibiting “material that reflects the belief, or that is intended to cause another to believe,” that the images are real, whether they are real or not and whether they are pornographic or not.

The Eleventh Circuit ruled that PROTECT violates the Constitutional due process prohibition on “vagueness,” because it could be used to prohibit speech that is really protected by the First Amendment and is not pornographic at all. The decision overturned the conviction of a Florida man who was caught in a federal sting offering to trade nude pictures of his young daughter and other forms of child pornography in an Internet chat room. Although he did not have pictures of his daughter, he did have 22 pornographic images of other children on his computer hard drive. The man, Michael Williams, pled guilty to the unlawful act of possessing the pornographic pictures but challenged the section of the PROTECT Act under which he was found guilty of “pandering” child pornography. The Supreme Court took the case on certiorari.

Solicitor General Paul D. Clement, arguing the government’s appeal, told the justices: “The Court has made it clear that speech proposing an unlawful transaction is not protected by the First Amendment. And speech that falsely proposes an unlawful transaction is likewise unprotected.” On that basis he argued that the Court of Appeals was wrong in striking down the statute, because it “does not prohibit truthful speech about lawful materials,” rather, it prohibits speech, whether truthful or untruthful, about unlawful pornographic materials. The Court spent a good deal of time posing hypothetical situations in an attempt to keep but narrowly limit the statute. The opinion will not be issued by the Court for several months.