Child Pornography and the PROTECT Act

In Ashcroft v. Free Speech Coalition (2002) the Supreme Court struck down the major provisions of the Child Pornography Prevention Act as overbroad. A key provision of the law prohibited so-called "virtual child pornography," in which computer generated images of children engaged in sexual acts. The First Amendment was violated, according to Justice Kennedy, by a law that "prohibits the visual depiction of an idea."  The Court, however, did not say that Congress was powerless to deal with the problem of child pornography.

In the PROTECT Act (Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today), Congress attacked pandering and solicitation of child pornography, and the law applied regardless of whether the material consisted of computer-generated images or even of adults who looked like children, or even if the material was fraudulent or did not exist at all.

Federal agents caught Michael Williams, a Florida man, in a sting operation offering child pornography in an internet chat room.  Williams claimed to have "good pics" of his four-year-old daughter, including photos of men molesting her. The agent, who signed in as "Lisa n Miami," wanted more details at which point Williams suspected "Lisa"  (in fact a man) might be a police officer and demanded some photos in return. When "Lisa" did not respond, he posted the following message: "I CAN PUT UPLINK CUZ IM FOR REAL—SHE CANT," and added a hyperlink that when clicked led to seven pictures of actual children engaging in sexually explicit conduct and displaying their genitals.  The Secret Service then obtained a search warrant for Williams' home, where they seized two hard drives containing at least 22 images of real children engaged in sexual conduct, some of it sadomasochistic.  The government charged him with one count of pandering and one count of possessing child pornography; he pleaded guilty but reserved the right to challenge the law's constitutionality.

In a 7-2 decision in United States v. Williams, the Court upheld his conviction as well as the constitutionality of the PROTECT Act. Justice Scalia dismissed concerns that had been raised in hypotheticals during oral argument that the law might make movie reviewers or even unsuspecting grandparents subject to its standards.  A long line of cases, he declared, held child pornography as categorically excluded from First Amendment protection.  Congress had taken the Court's decision in Ashcroft,  and had gone back to the drawing boards and come up with a law that was not constitutionally vague and which specifically addressed a real evil. "Child pornography harms and debases the most defenseless of our citizens," he noted, and the new law had been carefully crafted to respond to child pornography "proliferating through the new medium of the Internet."

Justice Stevens had worried during oral argument that a documentary of atrocities in foreign countries showing soldiers raping children might violate the law, but he joined the majority in a concurring opinion saying he was convinced Congress intended the law to apply only to material with a "lascivious purpose."

In dissent, Justices Souter joined by Ginsburg, said their concerns had not been answered. They did not object to making it a crime to mislead others by offering material that did not exist; that was simply fraud.  But possession of pornographic images that do not depict real children is constitutionally protected, and offering them should not be a crime (the basic holding of Ashcroft). By eliminating the real child requirement, he concluded, a class of protected speech will disappear.

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