Last April, the Atlanta-based Circuit Court ruled that the pandering provision of the Protect Act, which made 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 followed the logic in a similar case, Ashcroft vs. Free Speech Coalition, in finding the pandering provision to be overbroad, ruling it unconstitutional, adult entertainment industry attorney H. Louis Sirkin told XBIZ.
“In that sense, the court was right on the money,” Sirkin said.
U.S. Solicitor General Paul Clement, who filed the appeal on behalf of the government, said, “those who traffic in what purports to be child pornography deserve no sanctuary.”
While Sirkin said it is nearly impossible to predict what the Supreme Court might do with the case, he believes the focus of the action will be with respect to clarifying the meaning of pandering.
“If the Court were looking for a case to use to overturn the FSC decision, this certainly wouldn’t be a good choice,” Sirkin said. “But you never know. My hope is that it won’t alter the FSC decision because that case had to do with virtual child pornography and that isn’t at issue here.”
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 11th Circuit upheld the conviction on the possession charge, while overturning the conviction on the pandering charge. At the time, attorney Jeffrey Douglas told XBIZ that 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.”
Rick Louis of the ASACP told XBIZ that the law is similar to ASACP’s Code of Ethics and Best Practices, but stressed the voluntary nature of ASACP’s efforts.
“Many pedophiles trade pictures online peer-to-peer, and the language being questioned in the Protect Act criminalizes offering someone child porn — even if you actually do not possess any,” Louis said. “On a certain level, ASACP’s Code of Ethics and Best Practices for adult sites reflect a similar zero tolerance policy, since they prohibit even marketing or advertising adult material by suggesting it features minors. The adult industry needs to demonstrate its absolute rejection of child pornography, and therefore sites that appear to cater to pedophiles, even if all material on those sites is legal, cannot join ASACP.”
The U.S. Supreme Court will hear arguments in the case this fall.
The case is U.S. vs. Williams, 06-694.