WASHINGTON, DC — A 7-2 decision handed down Monday by the U.S. Supreme Court affirms a federal law criminalizing the distribution of faux child porn. Although the decision could have implications for “teen” and “barely legal” adult sites, it is not expected to affect Hollywood.The case arose on behalf of Michael Williams, a Florida man convicted of pandering child pornography. Although in related charges Williams admitted to possessing actual child pornography, the images he offered to others in online chat rooms were determined not to be of actual children. The trial court ruled that simply representing them as such was enough to sanction Williams under 18 U.S.C. 2257A(a)(3)(B), a section added to the federal criminal code by the PROTECT Act of 2003.
The section bans offering sexually explicit material “in a manner … that is intended to cause another to believe” its creation involved children. It specifically forbids “advertis[ing], promot[ing], present[ing], distribut[ing], or solicit[ing]” sexually explicit material that is computer-generated or otherwise manipulated so that it seems to be of children.
A federal appeals court overturned the lower court’s decision, ruling the relevant provision of the law was “substantially overbroad and vague” and “non-commercial, non-inciteful promotion of illegal child pornography, even if repugnant, is protected free speech.” The Supreme Court disagreed.
Writing for the majority, Justice Antonin Scalia concluded the trial court’s decision “raises no constitutional problems whatever.” He wrote, “Offers to engage in illegal transactions are categorically excluded from First Amendment protection. The Eleventh Circuit, however, believed that the exclusion of First Amendment protection extended only to commercial offers to provide or receive contraband… This mistakes the rationale for the categorical exclusion. It is based not on the less privileged First Amendment status of commercial speech, but on the principle that offers to give or receive what it is unlawful to possess have no social value and thus, like obscenity, enjoy no First Amendment protection.”
From the decision, it seems the majority’s decision may have been based in part on a perceived recent increase in the transmission of pseudo-child porn due to the court’s decision about a previous version of the law.
“Child pornography harms and debases the most defenseless of our citizens,” Scalia wrote. “This court held unconstitutional Congress’ previous attempt to meet this new threat, and Congress responded with a carefully crafted attempt to eliminate the First Amendment problems we [previously] identified.”
During oral arguments, six of the nine justices mentioned a concern about Hollywood being swept up in a faux-child-porn net. Mainstream movies like Lolita, Traffic and Titanic, for example, all include simulated sex involving minors.
In its decision, the court addressed that issue, saying viewers understand children in mainstream movies are not actually engaging in sexually explicit conduct. The same cannot be said of material represented as child pornography.
Justices David Souter and Ruth Bader Ginsburg dissented, decrying a double standard that now seems to exist between pandering and possession: Whereas pandering of faux child porn is a crime, possession of such material remains constitutionally protected.
“I believe that maintaining the First Amendment protection of expression we have previously held to cover fake child pornography requires a limit to the law’s criminalization of pandering proposals,” Souter wrote in his dissent.
In 2002, the Supreme Court overturned a 1996 federal law that criminalized possession of sexually explicit images that appeared to be of actual children but were not. In its ruling, the court noted government cannot “suppress lawful speech as the means to suppress unlawful speech.” In essence, the ruling implied that only creating actual child porn — not merely thinking about child porn — was illegal. Monday’s decision not only adds non-commercial distribution to the criminal side of the equation, but also implies some “thought crimes” are illegal.
