A 2003 federal law that sets a five-year mandatory prison term for promoting child porn is being challenged, and opponents have said the law could apply to mainstream movies, including "Traffic" and "Titanic," that depict underage sex.
The 11th U.S. Circuit Court of Appeals struck down the provision, saying it makes a crime out of merely talking about illegal images or possessing innocent materials that someone else might believe is pornography. In the appeals court's view, the law could apply to an email sent by a grandparent and entitled "Good pics of kids in bed," showing grandchildren dressed in pajamas.
In the 2002 Ashcroft vs. Free Speech Coalition decision, the Supreme Court struck down provisions of a 1996 child pornography law because they called into question legitimate educational, scientific or artistic depictions of youthful sex.
Congress responded in 2003 with the PROTECT (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today) Act, which contains the "pandering child pornography" provision under challenge.
Richard Diaz, the lawyer for Michael Williams, a Florida man convicted under the law, told the court: "It is unconstitutionally vague and overbroad, because on its face it captures protected speech about materials. And it captures protected speech about materials that may not even, in fact, exist."
Williams also was convicted of possession of child pornography. That conviction and the resulting five-year prison term is not being challenged.
"After the victory in Ashcroft vs. Free Speech Coalition, Congress passed a new law that addressed part of what we prevailed in," 1st Amendment attorney Jeffrey Douglas told XBIZ. "They enacted another attempt to criminalize what they characterize as pandering child pornography; that is, offering for sale material which could be interpreted as an offer of sale of child pornography.
"The Supreme Court struck that down, and this was an attempt to evade the court's ruling in the hopes that a different court would come along."
According to Douglas, the definition of "pandering child pornography" could cover constitutionally protected materials.
"The government's argument was, in essence: Trust us, we wouldn't go after someone offering to sell the movie 'Lolita,' we'll only go after bad guys. This is rampant nonsense. As long as you give prosecutors discretion you can be certain that there will be abuse, because there are people out there who don't like mainstream movies. When 'The Exorcist' was released, a prosecutor in Alabama said he was going to prosecute it for violating the state's blasphemy laws — although the blasphemy laws had been repealed generations before.
"When you put your freedom in the good faith of prosecutors, your liberty will be short-lived."
The court's decision will be handed down before the end of the Supreme Court's term next summer.
The case is U.S. vs. Williams, 06-694.