Is child-porn law too broad?

In response to the accusation that he was an undercover cop, Williams posted a hyperlink to seven sexually explicit photographs of children from ages 5 to 15.

Four days later, federal agents executed a search warrant for Williams's trailer in Key Largo. They discovered 22 computer images of children engaged in various forms of sexual activity. They also discovered that Williams lived alone and did not have a 2-year-old daughter.

Williams was charged with possession of child pornography. But federal prosecutors did not stop there. They also charged him with violating the federal child-pornography pandering law for his Internet encounter with the agent.

Williams agreed to plead guilty to both charges, but reserved the right to appeal the pandering conviction. His lawyers say he shouldn't be held criminally liable for false claims expressed in an adult chat room.

The 11th US Circuit Court of Appeals in Atlanta agreed with Williams and reversed the pandering conviction.

In appealing to the Supreme Court, the Bush administration argues that the law is aimed at the kind of pandering that sustains the illegal trade in child pornography – which in turn poses a threat to the well-being of children.

Part of the reason Congress passed the pandering statute was to give federal authorities the ability to prosecute individuals selling or trading computer-generated child pornography.

In 2002, the Supreme Court struck down an attempt by Congress to extend a ban on child pornography to include computer-generated child pornography. The ruling opened the door to distribution of virtual child porn. It also created a potential defense for individuals arrested for possessing actual child pornography. They could claim that the children depicted weren't real children.

Even if they were real, the virtual pornography claim would complicate any prosecution by forcing the government to prove the children in any photos were real.

Congress responded by enacting the 2003 law allowing federal agents to arrest someone for presenting or soliciting virtual child pornography if the would-be recipient believes it is child pornography involving real children.

In the Williams case, it enabled the government to prosecute Williams for trying to distribute child porn that never existed involving a 2-year-old girl who also doesn't exist.

Lawyers for Williams say the law's reliance on "beliefs" gives too much discretion to investigating agents. "The speaker's criminality does not depend upon his or her intent, but rather on what the speaker's audience believes the speaker is talking about, even if that belief is deluded," says Williams's attorney Richard Diaz of Coral Gables, Fla., in his brief to the court.

"It enters into an area that should be 100 percent off-limits to any form of government regulation," Professor Feldmeier says. "Government should not be regulating the mind."

Government lawyers have a different perspective. "The statute does not punish mere 'thoughts,' but applies only when an objectively reasonable person would conclude from the context that the speaker is offering or seeking real child pornography," Solicitor General Clement writes in his brief.

Previous

1 | 2