Ban upheld on offering child porn

The Supreme Court allows a 2003 law dealing with 'virtual' child porn that some thought was too broad.

from the May 20, 2008 edition

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Responding to Souter's dissent, Scalia says the high court's holding does not overrule a 2002 decision in a case called Ashcroft v. Free Speech Coalition.

In that case, the court ruled that Congress could not ban virtual child pornography in an attempt to stamp out actual child pornography. "According to the dissent, Congress has made an end-run around the First Amendment's protection of virtual child pornography by prohibiting proposals to transact in such images rather than prohibiting the images themselves," Scalia writes.

He says an offer to provide or a request to receive virtual child pornography is not prohibited by the PROTECT Act and continues to have First Amendment protection. "A crime is committed only when the speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children," Scalia writes.

Souter and Ginsburg say the statute must be based on more than mere belief by a speaker or the speaker's desire to foster a belief in another.

"First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end," Souter writes, quoting from the court's 2002 Free Speech Coalition decision. "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."

In contrast, the majority said Congress struck the correct balance in the statute. "Child pornography harms and debases the most defenseless of our citizens," Scalia writes. "Both the state and federal governments have sought to suppress it for many years, only to find it proliferating through the new medium of the Internet."

He adds, "This court held unconstitutional Congress's previous attempt to meet this new threat, and Congress responded with a carefully crafted attempt to eliminate the First Amendment problems we identified. As far as the provision at issue in this case is concerned, that effort was successful."

In other action, the high court upheld a Kentucky program that provided tax exemptions for Kentucky-based municipal bonds.

Voting 7 to 2, the justices ruled that a state may decline to charge taxes on interest earned on its own bonds while taxing residents for interest earned on bonds from other states. Forty-two states offer some form of tax exemption for their bonds, while taxing out-of-state bonds.

In another case, the high court upheld a portion of the conviction of the so-called Millennium Bomber who was allegedly plotting to blow up Los Angeles International Airport. He was arrested attempting to drive into the United States from Canada. Officials found explosives in his car.

The Supreme Court ruled 8 to 1 that Ahmed Ressam was properly charged and convicted under a law prohibiting carrying explosives while committing a felony.

In Mr. Ressam's case, the underlying felony was making false statements on his US Customs form while attempting to enter the US by car in December 1999. At issue was whether the underlying felony must involve committing a crime linked to the explosives, not simply possessing the explosives while committing a felony.

A federal appeals court had thrown out a single count of Ressam's nine-count conviction.

On Monday, the Supreme Court reversed that decision. The ruling will make it easier for federal prosecutors to return lengthy prison sentences against suspected terrorists caught in possession of explosives. Oral argument was presented in the case by Attorney General Michael Mukasey, who is now batting 1.000 as an advocate before Supreme Court.

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