Five years ago, for example, the court struck down the Child Pornography Prevention Act, which made it a crime to create, distribute or possess “virtual” child pornography that uses computer-generated images or young-looking adults rather than real children.
Congress has refused to take no for an answer, and based on the way an argument unfolded on Tuesday at the Supreme Court, it appears that Congress may have finally fought the court to a draw.
The justices appeared likely to uphold the constitutionality of the latest legislative effort, a 2003 law called the Protect Act.
At the least, they seemed likely to support a version of it they would construe narrowly to allay concerns the law is so broadly written as to make it a crime to share or even describe depictions of children in explicit sexual situations, even if the depictions are inaccurate, the supposed children do not really exist and the intention is innocent.
Those concerns led the federal appeals court in Atlanta to declare the Protect Act unconstitutional last year.
The decision overturned the conviction of a Florida man who was caught in a federal sting offering to trade nude pictures of his young daughter and other forms of child pornography in an Internet chat room. Although he did not have pictures of his daughter, he did have 22 pornographic images of other children on his computer hard drive.
Possessing such images has long been illegal, and the possession offense to which the man, Michael Williams, pleaded guilty was not part of the case before the Supreme Court.
At issue, rather, was the separate statute under which he was found guilty of “pandering” child pornography, defined as advertising, promoting, presenting, distributing or soliciting real or “purported” material “in a manner that reflects the belief or that is intended to cause another to believe” that it is child pornography.
In finding that provision so overly broad as to violate the First Amendment guarantee of free speech, the United States Court of Appeals for the 11th Circuit observed that it could be a crime under the statute to offer for sale “a copy of Disney’s ‘Snow White’ on false claims that it contains depictions of minors engaged in sexually explicit conduct.”
Solicitor General Paul D. Clement, arguing the government’s appeal, told the justices that just as “speech proposing an unlawful transaction” had no constitutional protection, neither did speech that “falsely proposes an unlawful transaction.”
Whether the child pornography was real or just purported, the act of offering it could properly be made a crime, Mr. Clement said. The proposed transaction need not be commercial, he added, to the evident consternation of several justices.
Mr. Clement said that the 11th Circuit’s concern was misplaced and that there was no reason to fear that distributors of “mainstream” movies might violate the statute for using young-looking actors in place of actual children in sexually explicit scenes. Audiences were well aware of such substitutions, and studios did not intend to deceive them, he said.
Not all the justices were persuaded. “What if you are 17 years old and you haven’t gone to law school and you haven’t read these cases?” Justice David H. Souter asked.
If Mr. Clement, one of the most accomplished of current Supreme Court advocates, had some unusually rocky moments, that was nothing compared with the difficulties that faced his opponent, Richard J. Diaz of Coral Gables, Fla.
Mr. Diaz, in his first Supreme Court appearance, gave confusing and contradictory answers to questions that he did not seem to have anticipated.
One problem was that his client, Mr. Williams, had indisputably engaged in behavior that the justices found unsavory.
That put this case, United States v. Williams, No. 06-694, on a different footing from the other recent cases, in which statutes were challenged as violating the First Amendment on their face, in the abstract, rather than as outgrowths of criminal prosecutions.
“Your client didn’t produce ‘Lolita,’” Chief Justice John G. Roberts Jr. said at one point.
Pressed by several justices for examples of how the statute might actually trap unwary people, Mr. Diaz could not supply any.
Mr. Clement, for his part, was ready to meet the justices more than halfway. If the court thought the statute reached too far, he said, “then I would invite you to have a more restrictive view” of its scope.
“We certainly want you to interpret that statute in a way that renders it not overbroad,” he said, offering an invitation that a majority appeared likely to accept.