The law, known as the Protect Act, applies regardless of whether the material turns out to consist solely of computer-generated images, or digitally altered photographs of adults, or even if the offer is fraudulent and the material does not exist at all.
“Offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment,” Justice Antonin Scalia wrote for the 7-to-2 majority.
The law at issue was a response to a Supreme Court ruling in 2002, a decision that found unconstitutional an earlier law that prohibited simple possession of purported child pornography even if the material turned out not to depict real children. The First Amendment was violated by a law that “prohibits the visual depiction of an idea,” Justice Anthony M. Kennedy said in the 2002 decision.
Justice Scalia said on Monday that by limiting the crime to the “pandering” of child pornography, the new law represented “a carefully crafted attempt to eliminate the First Amendment problems we identified” in the earlier decision.
The new law and the earlier one, the Child Pornography Prevention Act of 1996, were legislative efforts to deal with the challenge that technology poses to prosecutors if they must prove that material that looks like child pornography was actually produced using real children.
Under the court’s interpretation of the 2003 statute, a person offering material as child pornography can be convicted on either of two grounds: for believing that the material depicts real children, or for intending to convince a would-be recipient that it does.
The statute itself (“Protect” is an acronym for Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today) is open to a considerably broader interpretation, which led the federal appeals court in Atlanta to invalidate it in 2006, the decision that the justices overturned on Monday.
The law applies to “any person who knowingly advertises, promotes, presents, distributes, or solicits” the prohibited material, raising concerns about whether mainstream movies or innocent photographs of babies in the bath might invite prosecution.
Justice Scalia dismissed these concerns as “fanciful hypotheticals,” saying that such situations would either not give rise to prosecutions or, if they did, would be protected by the courts. In a concurring opinion, Justices John Paul Stevens and Stephen G. Breyer said they, too, were satisfied that the court’s narrow construction of the statute had allayed “any constitutional concerns that might arise.”
In effect, the court accepted the invitation of Solicitor General Paul D. Clement who, when he argued in defense of the statute last Oct. 30, urged the justices to impose “a more restrictive view” of the law’s scope if they thought it reached too far.
The two dissenting justices, David H. Souter and Ruth Bader Ginsburg, said their concerns had not been answered. In an opinion by Justice Souter, which Justice Ginsburg signed, they said they did not object to making it a crime to mislead others by offering material that did not in fact exist. That was simply fraud, Justice Souter said.
However, he added, possession of pornographic images that do not depict real children is constitutionally protected, and offering them should not be a crime. “If the act can effectively eliminate the real-child requirement when a proposal relates to extant material, a class of protected speech will disappear,” Justice Souter said.
Joan E. Bertin, executive director of the National Coalition Against Censorship, which filed a brief arguing that the law was unconstitutional, said the decision failed to offer protection against “over-zealous prosecutors.” In an interview, she said it appeared that “the court was not willing to send the case back to Congress again,” and so “narrowed the statute in order to save it.”
The case, United States v. Williams, No. 06-694, began in 2004 as the prosecution of a Florida man, Michael Williams, who was caught in a federal sting operation offering child pornography in an Internet chat room. He claimed to have “good pics” of his 4-year-old daughter. In fact, he did not have such pictures, but when federal agents executed a search warrant, they found 22 sexually explicit images of real children on his computer hard drives.
His conviction for possessing the images, and his five-year sentence for that crime, were not at issue in the case. He challenged his conviction under the new law for pandering and won a reversal in the United States Court of Appeals for the 11th Circuit, which found the law both overbroad and unconstitutionally vague.
In another decision on Monday, the court voted 8 to 1 to reinstate the conviction on a charge of carrying explosives of the Algerian man who attempted to enter the United States from Canada in December 1999 and who is often referred to as the millennium bomber.
The man, Ahmed Ressam, who was recruited by Al Qaeda and intended to detonate the explosives at Los Angeles International Airport, was convicted on nine separate counts and sentenced to 22 years in prison. Conviction on eight of the counts was affirmed by the federal appeals court in San Francisco. The case, United States v. Ressam, No. 07-455, concerned only the ninth count, carrying explosives “during the commission of” a felony.
The felony in question was lying to the customs officer who questioned Mr. Ressam at his point of entry at Port Angeles, Wash. The question for the court was whether that law should be understood to require that the explosive be carried “in relation” to the underlying felony, or whether it was sufficient that it occurred at the same time.
The appeals court required a relationship, but the justices, in an opinion by Justice Stevens, disagreed. Justice Breyer was the lone dissenter.
Appeal Rejected in Nazi Case
WASHINGTON (AP) — The Justice Department said Monday that a man accused of being a former Nazi death camp guard had exhausted all legal avenues for staying in the United States and that the government was committed to deporting him.
The department commented after the Supreme Court refused to hear the case of the man, John Demjanjuk, 88, who lives in Seven Hills, a suburb of Cleveland.
A judge ruled in 2002 that documents from World War II proved that Mr. Demjanjuk had been a Nazi guard at various camps.
A 2005 deportation order would send Mr. Demjanjuk to Germany, Poland or his native Ukraine.