Pandering Provision of The Protect Act Found Unconstitutional

Michael Hayes
ATLANTA — A federal appeals court struck down the pandering provision of the Protect Act, ruling that the provision, which makes it a crime to distribute material purported to contain obscene depictions of minors engaging in sexual activity, was overbroad.

Congress passed the Protect Act in 2003 in an effort to resurrect the Child Porn Protection Act. The CPPA also made pandering child pornography a crime, but cast a wider net. The Protect Act refined the CPPA by criminalizing only the panderer.

The 11th U.S. Circuit Court of Appeals, following the logic in a similar case, Ashcroft vs. Free Speech Coalition, found the pandering provision to be overbroad, ruling it unconstitutional.

The present case, U.S. vs. Williams, centered on the defendant’s 1st Amendment challenge to the law. On those ground, according to Santa Monica criminal defense attorney and FSC Board Chairman Jeffrey Douglas, the court got it exactly right.

“What Congress did was try to criminalize the idea, not the act of child exploitation,” Douglas told XBIZ. “The Supreme Court has ruled that to be unconstitutional because it’s overbroad.”

Douglas pointed out that under the law, for example, a discussion about “Lolita” could be criminal.

“On the one hand, the speaker could be talking about the book by Nabokov; on the other hand, the speech could be in reference to child pornography,” Douglas said. “The problem with the law is that it makes no distinction, and therefore criminalizes protected speech.”

In the case at bar, Michael Williams was convicted under the Protect Act of entering a chatroom where he claimed to be in possession of pictures depicting a toddler that were sexual in nature. When authorities arrested Williams, no pictures of that nature were found. However, Williams was in possession of other child pornography, a crime for which he was convicted.

The court upheld the conviction on the possession charge, while overturning the conviction on the pandering charge. But according to Douglas, the decision made no difference as to Williams’ sentence.

“The [pandering] law is entirely unnecessary,” Douglas said. “Williams was set to serve 60 months in prison and he’ll still serve the same time for possession. The pandering law doesn’t change the outcome of the vast majority of criminal cases where the defendant is accused of possessing child porn.”