High Court Affirms Key Pandering Component of PROTECT Act

Tom Hymes
WASHINGTON — The U.S. Supreme Court today ruled, 7-2, in favor of 18 U.S.C. §2252A(a)(3)(B), a key provision of the PROTECT Act of 2003 that “generally prohibits offers to provide and requests to obtain child pornography.”

Justice Antonin Scalia delivered the majority opinion (see below) for the case in question, U.S. vs. Williams, with additional concurring comments by Justices John Paul Stevens and Steven Breyer and dissenting remarks by Justices David Souter and Ruth Bader Ginsburg.

Monday’s ruling was limited in scope, and, contrary to some news reports that claim it reaffirmed the illegality of child pornography, actually clarified, by the use of rather specific interpretation, a particular component of child pornography law, namely, the extent to which someone can pander to another or request from another what they assert to be actual child pornography, whether actual child pornography exists or not.

The distinction between the outlawing of "virtual" child pornography and Monday’s ruling speaks to the actual purpose of the ruling.

In 2002, the court in Ashcroft vs. Free Speech Coalition struck down as facially overbroad the provision of the Child Pornography Prevention Act of 1996, which outlawed “the possession and distribution of material pandered as child pornography, regardless of whether it actually was that.”

In an attempt to pass constitutional muster, Congress then enacted the PROTECT Act, which included the pandering and solicitation provision, 18 U.S.C. §2252A(a)(3)(B). In 2006, the 11th U.S. Circuit Court of Appeals ruled that provision unconstitutional, finding, “As illustrated in this case, relatively innocent candid snapshots of children, such as those initially exchanged by the defendant Williams and the undercover agent, are also collected and used as a medium of exchange. We cannot, however, outlaw those legal and mainstream materials and we may not outlaw the thoughts conjured up by those legal materials.”

On Monday, the Supreme Court overturned that decision, but in doing so had to closely interpret the meaning of the statute such that unintended prosecutions are avoided in the future. According to attorney Reed Lee, the ruling “was a narrow opinion, and not a bad opinion,” and the clarification that accompanied it was absolutely necessary.

“In Ashcroft vs. Free Speech Coalition, the FSC successfully challenged two things,” Lee said. “One, it challenged a criminal prohibition against material that appeared to be child pornography, and Congress rewrote a provision [to address that], but it is not an issue in today’s case. The other thing it did was strike down a provision prohibiting material that had been pandered as child pornography. One of the things the court said was wrong with that was that it would make illegal in the hands of A material that had been pandered by B and C years past, and A had no way of knowing it.

“So what Congress did was instead of making the material illegal, it made it illegal to pander the material; that is, to promote, advise, advertise, etc., saying this is child pornography. And it also used language that appeared to make it illegal for somebody to say something was child pornography, intending that anyone who wanted it would believe that, even if it weren’t.

“Today, the court narrowly construed these two new provisions. It requires a showing of intent, and it says, as so interpreted, they are not unconstitutionally overbroad. In other words, the interpretation eliminates the danger that it is going to reach such things as a newspaper movie review of ‘American Beauty,’ where a reviewer might be speaking in terms that are within the fictive truth of the movie that might be interpreted as saying it’s child pornography.

“This is one of the reasons why cases like this have to be done, because without this interpretation, the statute was open to much broader interpretations that prosecutors might try. Cases like this have to be brought so that the court has a decision to make, which is, basically, is the stature open to those broad interpretations; and if so, is it constitutional. Or, can we narrow the scope of interpretation in order to save the constitutionality of the statute. The court did the second thing today. This opinion is intended to foreclose any doubt that this [statute] would apply to statements about material the parties transferring it know is not child pornography.”

Lee said that it is thus now clear what behavior would violate the statute.

“It would clearly violate the statute if somebody said to another, other than in a scripted play or something, where it is clearly just words, ‘I’ve got some child pornography. You want some?’ Or if somebody goes on the Internet and says, ‘I’m looking for some child pornography, can anybody send me some?’ Both those scenarios violate the statute, whether or not anybody ever gets around to transferring child pornography.

“Those are clear violations, but it also appears that it is a violation for somebody to say to another, ‘I’ve got some child pornography; you want it, or do you want to buy it,’ and that person knows that it is not child pornography. If the person intends to make the receiver believe it is child pornography, then that is also illegal.”

Criminalizing such conspiracies is well-established law, according to Lee.

“For well over a century, it has been the law that two people can conspire, that is, they can agree to do something illegal or agree to something legal in an illegal way, and if one or more of them takes one or more steps in pursuit of that agreement, they are guilty of conspiracy even if, unbeknownst to them, it was factually impossible to do what they were trying to do.”

The question was posed to Lee whether an advertisement that promoted “Photos of Hot, Sexy 17 Year Olds,” would trigger the statute.

“My inclination is that someone who says such a thing is certainly running a substantial risk that a jury will find that “sexy” was intended to convey something within the definition of sexually explicit conduct that can make something child pornography,” he said.

Lee did not see that as a gray area but did say that there is some concern that the ruling did not address a somewhat similar term commonly used in the industry.

“It would have been nice if the court had said that the mere use of the word ‘teen’ would not be enough to allow a jury to infer that the parties believed or intended someone to believe that the participants were underage,” he said. “That’s probably the biggest concern about the application of this statute, and with Justice Scalia writing maybe we cannot expect him to be reassuring on that score, but the tone of the opinion requires enough by the way of what we lawyers call ‘scienter,” that is, intent, that it is hard to believe the word ‘teen’ alone, where there is no other indicia, would be enough [to convict].”

Lee said the ruling makes clear the grey areas, to the extent they existed, are gone and anyone playing near them should cease.

‘The signal here is that anybody who is deliberately playing that line, anybody who is out to sell something with the hope the buyer thinks it’s child pornography, they should have stopped doing that long ago, and they should clearly stop it now.”

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