High court weighs child porn law
- Oct 31, 2007 - comment
The U.S. Supreme Court grappled Oct. 30 with another effort by Congress to combat child pornography.
The justices heard oral arguments in their review of a lower court decision that struck down a federal restriction on such pornography. During the hour-long arguments, the high court seemed to be struggling with whether it could uphold a portion of the 2003 law in question that was declared overly broad by a federal appeals court.
The case involves convictions of Michael Williams for possessing child pornography and promoting, or “pandering,” material in a way that signals it consists of illegal child pornography. In 2004, Secret Service agents found on two computer hard drives at Williams’ home more than 20 images of minors engaged in sexually explicit behavior or lasciviously displaying their private parts. A Florida resident, Williams was sentenced to five years’ imprisonment on both counts, with the terms to be served concurrently.
Congress, which had been stymied by the Supreme Court in some previous efforts to restrict Internet indecency, had designed the challenged measure in an effort to deal with the use of computer-generated or enhanced images that appear to be of children involved in sexually explicit acts.
A three-judge panel of the 11th Circuit Court of Appeals, based in Atlanta, unanimously overturned the “pandering” conviction, saying the provision was unconstitutional on its face, being “both substantially overbroad and vague.” The court, however, upheld the five-year sentence for possession of child pornography.
U.S. Solicitor General Paul Clement told the justices the “pandering” provision of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act “does no more than prohibit efforts to offer or solicit materials that are contraband and then prevents somebody from turning around after soliciting or offering contraband and suggesting that the materials either did not exist or were not contraband at all. The statute does not prohibit truthful speech about lawful materials.”
The high court presented Clement with a series of hypothetical situations concerning enforcement of the law, and Associate Justice Stephen Breyer expressed concern the measure “has enormous reach.”
The justices expressed skepticism about the arguments for Williams. Richard Diaz, a lawyer from Coral Gables, Fla., who represented the defendant, said the law is “unconstitutionally vague and overbroad, because on its face it captures protected speech about materials.”
Associate Justice Anthony Kennedy told Diaz the high court might need to reconsider how it determines whether a law is overly broad.
Williams “was convicted of having not only child pornography but involving a very small child,” Kennedy said. “And he knew what it was … and he conveyed that belief.
“Given the fact that it would appear that child pornography is a growing problem, a serious problem on the Internet, maybe we should examine the overbreadth rule and just say that your client cannot make this challenge.”
Jay Sekulow, chief counsel of the American Center for Law and Justice, said in a written statement the case “is a critical opportunity for the Supreme Court to step up and protect our children by acknowledging” the law is constitutional. The measure “does not violate the First Amendment but does provide a measured and constitutional response to an ever-growing problem,” he said.
The invalidation of the provision in the PROTECT Act was part of a series of setbacks in Congress’ efforts to deal with online indecency and child pornography.
In 1997, the Supreme Court struck down the portion of the Communications Decency Act that barred the online transmission of indecent material but maintained the law’s provision on obscenity. The high court also has ruled against the Child Online Protection Act, a 1998 measure that targeted commercial websites that make sexually explicit material available to minors.
In a limited victory for foes of online indecency, the justices upheld in 2003 the Children’s Internet Protection Act, which requires public and school libraries that receive government Internet discounts to install filters on their computers to block pornography.
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