First Amendment topicsAbout the First Amendment
Court may have found child-porn law it can support

By Tony Mauro
First Amendment Center legal correspondent

WASHINGTON — For a while yesterday, the federal government’s latest effort to strengthen laws against child pornography seemed headed for the same fate as previous attempts: a ruling by the Supreme Court that the measure violates the First Amendment.

But by the end of hour-long arguments in U.S. v. Williams, it seemed likely that the justices would find a way to support the government in its effort to combat the epidemic of child pornography spreading on the Internet.

The 2003 PROTECT Act targets anyone who “advertises, promotes, presents, distributes, or solicits” material as child pornography, even if it isn’t really child porn — if, for example, it uses actors who are actually adults or uses virtual or digitally created child actors.

But as soon as Solicitor General Paul Clement rose to defend the statute yesterday, he was hit with hypotheticals aimed at showing that the law — especially the ambiguous word “presents” — could ensnare innocent or hapless individuals.

Sometimes, under the Court’s “overbreadth doctrine,” such hypotheticals can be fatal to a law, if they reveal a significant amount of speech that would violate the law even though it should in fact be protected by the First Amendment.

What about a movie reviewer who says a film includes child porn, even if it does not? asked Chief Justice John Roberts. “Nothing to worry about," said Clement, though several justices still seemed worried. Justice John Paul Stevens posited a documentary (though he used the word “newsreel” instead) that depicts atrocities by soldiers in a war zone, including child rape. That could run afoul of the law, Clement suggested.

Justice Ruth Bader Ginsburg’s cinematic contribution: What about someone who states that the 1962 movie “Lolita” shows a 12-year-old having sex with an old man? Clement dismissed that one, asserting that people viewing mainstream movies will know it wasn't really a child actor.

Justice David Souter offered a hypothetical from rural America: someone who receives unbidden child porn in the mail, and then calls up his town’s police chief to report it. Or, added Justice Antonin Scalia, what if the porn recipient called up a neighbor to discuss what he got in the mail? Reporting it to the police would be OK under the law, said Clement, but showing it to a neighbor might not.

That troubled Justice Stephen Breyer because it seemed to criminalize even the non-commercial presentation of material to someone else. He asked about common “schoolboy behavior” of passing “dirty pictures around.” If the law covered that, Breyer said, it would have “enormous reach.”

Clement took Breyer’s skepticism in stride, urging him merely to adopt a narrow interpretation of the law that would not encompass that kind of behavior.

That seemed to mollify some justices, and even Breyer began talking about adding an appendix to the Court’s opinion that would list the scenarios that the law would not cover. That idea did not seem popular with his colleagues. But the idea of limiting the interpretation of the law so that it would not be overly broad seemed to take hold among the justices.

Justice Samuel Alito, who once served as a U.S. attorney, also helped Clement’s cause. After listening to his colleagues’ litany of sometimes far-fetched what-ifs, Alito asked impatiently, “Is there anything to suggest that any of these hypotheticals ... are situations that occur with any frequency in the real world?”

Richard Diaz, the lawyer for the Florida man who was convicted under the law and is challenging it, did not turn the hypotheticals to his advantage, except to repeat that anyone snared by the law — including a braggart who lied about the contents of a video — could go to jail for five to 20 years.

But the length of sentences is not the issue in the case; the real issue is whether the law is so broad as to be unconstitutional. On that point, Diaz asserted that no matter how narrowly the law is interpreted, its words are still broad enough that it will “chill” legitimate speech about movies like “Lolita” or “American Beauty.” More and more exceptions to the First Amendment will be carved out, Diaz said.

But the justices showed little sympathy, probably because Diaz’s client, Michael Williams, was found guilty for behavior that was far from the hypothetical edges of the law. “He didn’t produce ‘Lolita,’” said Roberts.

Williams of Key Largo, Fla., was arrested in a sting operation in 2004. An undercover federal agent, checking various chatrooms, came across an offer from one participant, a self-described “dad of toddler” offering “good pics of her and me.” He later also offered “hc picture of me and dau,” with “hc” standing for hard core. The agent eventually received several images of other children from the man. After subpoenaing Yahoo and AT&T, the agent identified Williams as the sender, and he was arrested. After his challenge to the law succeeded in the 11th U.S. Circuit Court of Appeals, the government appealed.

Roberts seemed to sum up the view of the Court when he suggested that if any of the hypotheticals came to pass, for example “when ‘Lolita’ is being prosecuted,” the law could be challenged on an “as-applied” basis, rather than the facial challenge that Williams pursued. “We would hear from them, but not in your case,” Roberts told Diaz.

Justice Anthony Kennedy also seemed to be looking for a way to discourage those who, like Diaz, appear to be clearly guilty of violating a law from filing First Amendment “overbreadth” challenges based on how others might theoretically be affected by the law.

“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,” Kennedy said during the argument, though he later acknowledged that it might be impossible to change the rule in that way.


High court agrees to review child-porn law

11th Circuit had found pandering provision of PROTECT Act of 2003 overbroad, impermissibly vague. 03.26.07

N.H. high court finds composite photos aren't child porn
Camp photographer created sexual images by combining the faces of teenage girls with women's bodies. 01.22.08

High court upholds part of child-porn law
Justices vote 7-2, rejecting concerns that PROTECT Act could apply to mainstream movies depicting adolescent sex. 05.19.08

The PROTECT Act and the First Amendment
By Ambika J. Biggs Legislative effort to safeguard children after parts of CPPA were struck down raises its own free-expression problems concerning virtual child pornography. 08.27.03

PROTECT Act to face high court scrutiny
By Tony Mauro Justices to decide whether latest congressional effort to combat child pornography violates First Amendment. 03.27.07

Court opens term with First Amendment case
2007-08 Supreme Court term preview by Tony Mauro Justices to decide three election- or voting-related cases, consider appeal from government on Internet law. 10.01.07

Williams may be term's most far-reaching speech ruling
By Tony Mauro Child-porn case appears to expand range of speech that falls outside of First Amendment protection. 07.07.08

For better or worse, wild wild Web being fenced in
By Gene Policinski Legislation, court decisions, self-imposed restrictions and private vendor rules are creating limits in wide-open speech country. 07.13.08

2007-08 Supreme Court case tracker

Analysis/Commentary summary page
View the latest analysis and commentary throughout the First Amendment Center Online.

print this   Print

Last system update: Thursday, August 21, 2008 | 13:19:51
About this site
About the First Amendment
About the First Amendment Center
First Amendment programs
State of the First Amendment

First Reports
Supreme Court
First Amendment publications
First Amendment Center history
Freedom Sings™
First Amendment

Congressional Research Service reports
Guest editorials
FOI material
The First Amendment

Lesson plans
Contact us
Privacy statement
Related links