The Supreme Court has agreed to hear an appeal of an 11th U.S. Circuit Court of Appeals ruling that 18 U.S.C. Section 2252A(a)(3)(B) of the PROTECT Act, which criminalizes the non-commercial pandering of images of a "virtual child" and of non-obscene images of actual children, is unconstitutional. The issue central to the appeal regards the defendant talking about illegal images.
The case revolves around Michael Williams, who exchanged non-pornographic photographs of children, but also claimed he had nude photographs of his four-year-old daughter to trade. In messages exchanged with an undercover federal investigator, Williams claimed, "I've got hc [hard core] pictures of me and dau [daughter] and other guys eating her out – do you??" Although Williams never provided the pictures he claimed to have to the undercover officer, he did send the agent links to sites offering child pornography. He was convicted under the embattled section of the PROTECT Act.
The appeals court panel overturned the lower court's ruling, saying the portion of the PROTECT Act that deals with pandering is overly broad and impermissibly vague.
"While we can all agree that child pornography is horrendous, and to be avoided like the plague, the PROTECT Act raises significant constitutional concerns in its efforts to eradicate this scourge," said attorney Lawrence G. Walters. "One of the problems with this law is that is criminalizes speech ‘about’ an illegal activity: child porn. That’s tantamount to criminalizing speech about using drugs, which is often found in magazines like High Times.
"The government has the power to ban all child pornography, because it involves the participation in child abuse. But, it cannot constitutionally ban all speech about child pornography," Walters continued. "Under the PROTECT Act, one may be convicted of a crime by emailing a picture of a child in pajamas, if the image was ‘presented’ as child pornography. On the other hand, a grandparent could send the same picture to relatives, and be free from prosecution, based solely on the speech accompanying the image. That is a content-based restriction on speech, and appears to be unconstitutional. However, with the current makeup of the Supreme Court, we cannot presume that First Amendment cases will be decided along the same lines as when Justice [Sandra Day] O’Connor was still on the Court."
"Non-commercial, non-inciteful promotion of illegal child pornography, even if repugnant, is protected speech under the First Amendment," the 11th Circuit ruled.
Rick Louis, manager of communications and government affairs for the Association of Sites Advocating Children Protection said, "The law at issue in this case reflects a zero tolerance approach for pedophiles who trade pictures online peer-to-peer. In fact, it criminalizes offering someone [child pornography] even if you actually possess no CP whatsoever.
"Similarly, ASACP's Code of Ethics and Best Practices for adult sites warns against even marketing or advertising adult material in a way that suggests it features minors." Louis said, "It's important for the adult industry to demonstrate its absolute rejection of child pornography, so sites that appear to cater at all to pedophiles, even if all material on those sites is legal, can not join ASACP."
The Supreme Court should hear the Williams case in the coming fall term.
