ATLANTA, GA – A panel from the 11th U.S. Circuit Court of Appeals issued a unanimous ruling last Thursday striking down portions of the PROTECT Act, saying that the provisions were unconstitutionally broad and vague. The panel’s decision renders Section 2252A(a)(3)(B) of the PROTECT Act unenforceable in the in the 11th Circuit, the circuit covering Florida, Georgia and Alabama.The ruling also reversed the pandering conviction of Floridian Michael Williams, who was arrested in 2004 on pandering and possession of child pornography charges. Williams pleaded guilty to both charges, but reserved his right to appeal on the grounds that the pandering provision of the PROTECT Act was unconstitutional.
In arguments made to the 11th Circuit, Williams argued that even though the photos he possessed were portrayed actual children engaged in sex acts, the pandering law itself was overbroad and too vague, rendering the law unconstitutional.
In the panel’s decision, which was authored by 5th Circuit Judge Thomas M. Reavley, the court stated that it finds the language of the pandering provisions of the PROTECT Act “problematic for three reasons.”
The court first notes that since pandered child pornography need only be “purported” to fall under the prohibition of §2252A(a)(3)(B) that “means that promotional or speech is criminalized even when the touted materials are clean or non-existent.”
The problem with such criminalization of promotional speech as provided under the PROTECT Act is that someone who possesses no actual child pornography or even no sexually-explicit materials of any kind, can be punished as though they did possess such materials.
“In a non-commercial context, any promoter – be they a braggart, exaggerator, or outright liar – who claims to have illegal child pornography materials is a criminal punishable by up to 20 years in prison,” Reavley writes. “Even if what he or she actually has is a video of Our Gang, a dirty handkerchief, or an empty pocket.”
Reavley also points out that the First Amendment “plainly protects speech advocating or encouraging or approving of otherwise illegal activity, so long as it does not rise to ‘fighting word’ status.”
In other words, while it may be distasteful to allow people to speak and write about enjoying child porn, Reavley asserts that “the non-commercial, non-inciteful promotion of illegal child pornography, even if repugnant, is protected speech under the First Amendment.”
Especially troubling to the court is the fact that the pandering provision of the PROTECT Act criminalizes speech that merely creates the impression that criminal behavior is taking place, and/or speech that simply implies illegal content is being offered..
“(W)e find particularly objectionable the criminalization of speech that ‘reflects the belief’ that materials constitute obscene synthetic or ‘real’ child pornography,” Reavley writes. “Because no regard is given to the actual nature or even the existence of the underlying material, liability can be established based purely on promotional speech reflecting the deluded belief that real children are depicted in legal child erotica, or on promotional or solicitous speech reflecting that an individual finds certain depictions of children lascivious.”
“(T)he law does not seek to attach liability to the materials, but to the ideas and images communicated to the viewer by those materials,” Reavley states in the panel’s ruling. “This shifts the focus from a community standard to the perverted but privately held belief that materials are lascivious. Through this lens, virtually all depictions of children, whom to pedophiles are highly eroticized sexual objects, are likely to draw a deviant response….. We cannot, however, outlaw those legal and mainstream materials and we may not outlaw the thoughts conjured up by those legal materials.”
The court also found that there is no legal basis to “support pandering as an independent offense,” and that if the material being promoted is not illegal itself, then presenting it as illegal material does not magically transform such legal material into contraband.
“Determinations of ‘real’ child pornography as described in subsection (ii), on the other hand, are made by a purely objective test: whether or not the material visually depicts an actual minor engaged in sexually explicit conduct,” the court writes. “The manner in which the material is promoted has no bearing on the answer to this question. As one commentator observed, ‘[n]o amount of pandering, even misleading pander, can convert a virtual child into a real child.’”
The 11th Circuit’s decision affirmed what the Supreme Court ruled in Free Speech Coalition v. Ashcroft (commonly referred to as the “virtual child porn” case), and holds that the PROTECT Act has not corrected the constitutional problems identified in that case.
“In the wake of Free Speech Coalition<./i>, sexually explicit speech regarding children that is neither obscene nor the product of sexual abuse of a real minor retains protection of the First Amendment,” Reavley writes in the ruling, adding that the “infirmities of the PROTECT Act pandering provision reflect a persistent disregard of time-honored and constitutionally-mandated principles relating to the Government’s regulation of free speech and its obligation to provide criminal defendants due process.”
The FSC released a statement today applauding the 11th Circuit’s decision, and asserted again that the PROTECT Act represents, in part, an attempt on the part of the federal government to once again criminalize modes of thought in addition to modes of behavior.
“Fortunately, the 11th Circuit has recognized that in enacting 2252A of the PROTECT Act, Congress was attempting to re-criminalize the idea of child exploitation in violation of First Amendment protections affirmed by the U.S. Supreme Court in Ashcroft v. Free Speech Coalition,” The FSC stated in its press release. “While FSC shares the universal revulsion to the idea of the sexual exploitation of minors, there is a difference between the thought and the action.”
The court also found no reversible error in Williams’s sentencing, meaning that his five-year sentence for possession of child pornography stands. The additional five-year sentence for pandering, however, was vacated along with the pandering conviction.
