The justices agreed to hear a government appeal of a ruling issued last year by the federal appeals court in Atlanta that overturned part of a recent federal law aimed not only at the sexual exploitation of real children but also at computer-generated or enhanced images that help sustain the market for child pornography.
The appeals court, the United States Court of Appeals for the 11th Circuit, said that while the statute’s goal was one of “extraordinary importance,” its prohibition against “pandering” child pornography was too broadly worded and too vague to satisfy the First Amendment. “Congress may not burn the house to roast the pig,” the court said.
In appealing to the Supreme Court, Solicitor General Paul D. Clement said the provision, a portion of a 2003 law known as the Protect Act, was “totally consistent with the Constitution” because it was aimed at a form of speech that was not entitled to constitutional protection.
“The court of appeals’ misguided invalidation of the law undermines Congress’s effort to protect children by eliminating the widespread market in child pornography,” the government’s appeal said. In another part of the brief, however, Mr. Clement said the government had invoked the section at issue “only rarely.”
Congress passed the law to respond to a Supreme Court decision the year before that invalidated the Child Pornography Prevention Act of 1996. “Protect” is an acronym for the statute’s formal title, Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today.
The appeals court invalidated a section known as the “pandering” provision, which makes it a crime to advertise, promote, distribute or solicit “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 contains” either “an obscene visual depiction of a minor engaging in sexually explicit conduct” or such a visual depiction of an “actual minor.”
In other words, the government told the Supreme Court, the law allows prosecution of those who “make direct requests to receive, or offers to provide, what purports to be illegal material, regardless of whether the government can prove that such material is in fact real child pornography or that it even exists.” The minimum sentence is five years.
The appeals court’s decision came in an appeal brought by a man, Michael Williams, who was caught in a federal sting operation soliciting and offering child pornography in an Internet chat room. Secret Service agents obtain a warrant and searched his home, finding two computer hard drives with images of minors engaged in sexually explicit conduct.
The appeals court found that the photographs were “unquestionably” of “real” children, so that the case did not raise a question about the definition of “virtual” child pornography. The problem, the appeals court held, was with the absence of language in the law that would limit its application to commercial transactions.
While commercial promotion of child pornography would lack constitutional protection, the appeals court said, “the non-commercial, non-inciteful promotion of illegal child pornography, even if repugnant, is protected speech under the First Amendment.”
Without such a limitation, the court continued, the law could apply to “any promoter — be they a braggart, exaggerator, or outright liar — who claims to have illegal pornography,” and could subject such a person to up to 20 years in prison, even if the material was nothing more than “a video of ‘Our Gang,’ a dirty handkerchief, or an empty pocket.”
Congress’s effort in the 2003 law to define the crime precisely was a response to the Supreme Court’s dissatisfaction with the earlier law, so broadly written, Justice Anthony M. Kennedy wrote for the majority, that it could have turned a modern production of “Romeo and Juliet” into a criminal act. Juliet was supposed to be only 13, Justice Kennedy noted, so her portrayal as a young teenager could well be a “visual depiction” of a minor, or one who appeared to be a minor, engaged in sexually explicit conduct, in violation of the law.
The court will hear the new case, United States v. Williams, No. 06-694, in its next term.
Also on Monday, the court declined to revisit the question of the circumstances under which courts can award visiting rights to grandparents over the objection of a child’s parents. It let stand a decision by the Pennsylvania Supreme Court that upheld a visiting order without requiring proof that denying visits would harm the child. The case was Fausey v. Hiller, No. 06-863.