The Free Speech Coalition (FSC) is reassured by the decision issued late last week by the 11th U.S. Circuit Court of Appeals that struck down the pandering provision of the PROTECT Act (18 U.S.C. §2252A(a)(3)(B)) as being “both substantially overbroad and vague, and therefore facially unconstitutional…” The case was United States of America v. Michael Williams.
18 U.S.C. §2252A(a)(3)(B) provides that any person commits a crime who knowingly –
(B) Advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains—
(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or
(ii) a visual depiction of an actual minor engaging in sexually explicit conduct.
FSC said that fortunately, the 11th Circuit has recognized that in enacting 2252A of the PROTECT Act, Congress was attempting to re-criminalize the idea of child exploitation in violation of First Amendment protections affirmed by the U.S. Supreme Court in Ashcroft v. Free Speech Coalition. While FSC shares the universal revulsion to the idea of the sexual exploitation of minors, there is a difference between the thought and the action.
As Ashcroft v. FSC made clear, the reason child pornography is criminalized per se, and not subject to a demanding three-part Miller test, is that it represents an artifact of actual child sexual abuse. In other words, should a person offer “Lolita materials,” a pedophile might well be stimulated, but if the materials offered are the internationally acclaimed book by Nabakov or either of the two film versions, neither the implication of the offer, nor the subjective response of the responder, can be a basis for criminal charges.
