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PROTECT Act to face high court scrutiny

By Tony Mauro
First Amendment Center legal correspondent

WASHINGTON — The Supreme Court agreed yesterday to decide whether the latest effort by Congress to combat child pornography can survive First Amendment scrutiny any more successfully than previous attempts.

The Court added to its fall docket the case of U.S. v. Williams, a test of one section of a 2003 federal law that bans promotion or distribution of “any material or purported material” in a manner that “reflects the belief” or is “intended to cause another to believe” that the material is illegal child pornography.

The 11th U.S. Circuit Court of Appeals ruled last April that the language of this so-called pandering provision is vague and overbroad and could ensnare liars, braggarts and even innocent grandparents who send cute photos by e-mail with the subject line “Good pics of kids in bed.” In the last example, even if the grandparents’ motives were innocent, the 11th Circuit said that their “manner” of transmission is indistinguishable from that of a pornographer who sends an e-mail with the same subject line.

The ruling also stated, “A person offering for sale a copy of Disney’s Snow White on false claims that it contains depictions of minors engaged in sexually explicit conduct has committed a crime punishable by a fine and at least five and up to 25 years imprisonment, a decidedly disproportionate and draconian penalty.” The decision was authored by Thomas Reavley, a 5th Circuit judge sitting temporarily on the 11th Circuit.

The high court’s decision yesterday to take the case was unsurprising, as it almost always accepts the government’s appeal to rescue a federal law that has been declared unconstitutional by a lower court. Solicitor General Paul Clement, who said some of the 11th Circuit's hypothetical scenarios are “hard to fathom,” urged the Court to restore the law, which gives “requisite clarity” to the legal standards for combating the widespread market in child pornography. A law targeting clearly unprotected speech, Clement said, should not be held “hostage to a few hypothetical scenarios.”

The provision at issue is part of the PROTECT Act, an imperfect acronym for Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today. Congress passed the PROTECT Act to remedy flaws in an earlier law — the Child Pornography Prevention Act of 1996 — that that Supreme Court had struck down in the 2002 decision Ashcroft v. Free Speech Coalition. The Court found the 1996 law’s definitions so broad that they could criminalize “virtual” or computer-generated pornography that did not depict any actual children.

Congress responded with the new law, most of which has been found constitutional — including by the same 11th Circuit panel whose decision the Supreme Court has agreed to review.

But the pandering provision was challenged by Michael Williams of Key Largo, Fla., arrested in a sting operation in 2004. An undercover federal agent, checking various online chat rooms, 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 from the man. After subpoenaing Yahoo and AT&T, the agent identified Williams as the sender, and he was arrested.

As part of a plea agreement, Williams was sentenced to 60 months in prison, but was allowed to challenge the constitutionality of the pandering provision on appeal.

The 11th Circuit said many provisions of the law “capture perfectly” the kind of material that can clearly be prohibited. But by focusing in the pandering provision on the promotion and advertising of “purported” pornographic materials, the appeals panel found that any exaggerator could face 20 years in jail even if all he has to offer is “a video of ‘Our Gang,’ a dirty handkerchief or an empty pocket.” No matter what distasteful purpose is served, the 11th Circuit said, the distribution nonpornographic images of children cannot be punished. “Freedom of the mind occupies a highly-protected position in our constitutional heritage,” the appeals court said.

Williams’ lawyer, Richard Diaz of Coral Gables, Fla., had urged the high court not to review the case, arguing that the appeals court had “correctly determined” that the law was unconstitutionally vague.

In a brief filed with the Court, Diaz offered the hypothetical example of a man named John Doe who announces to six people waiting for a bus, “I’ve got some great juicy pictures of hot young babes.” One of those six might interpret the statement to mean photos of underage girls, Diaz said, but the other five might think he was talking about videos of Pamela Anderson or “Girls Gone Wild.”

Diaz asked, “Do we indict and convict John Doe? Of course not. How can we? Ambiguous words which can be subjectively interpreted in many ways, some of which would make John Doe a law violator and others not, cannot become prohibited speech.”


Federal court strikes down COPA

'Perhaps we do the minors of this country harm if First Amendment protections … are chipped away in the name of their protection,' judge says. 03.22.07

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

Ohio high court upholds virtual child-porn law
Justices reinstate man's conviction, rejecting argument that statute conflicts with U.S. Supreme Court ruling protecting computer-generated images. 07.26.07

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

Court may have found child-porn law it can support
By Tony Mauro Idea of limiting interpretation of 2003 PROTECT Act so it won’t be overly broad seems to take hold among justices. 10.31.07

2006-07 Supreme Court case tracker

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