Ban upheld on offering child porn

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

By , Staff writer of The Christian Science Monitor

The US Supreme Court has upheld an effort by Congress to make it illegal to offer or promote child pornography – even when the photographs being offered or promoted don't really exist or involve real children.

In a 7-to-2 decision announced on Monday, the high court said the law was a constitutional effort by Congress to protect innocent children from a thriving form of abuse.

The majority justices upheld the law even though it restricted certain kinds of speech that critics said must be protected by the First Amendment.

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Instead, the high court said Congress had struck the correct balance in passing the anti-child-pornography law.

"We hold that offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment," writes Justice Antonin Scalia for the majority.

The PROTECT Act of 2003 is an attempt to shut down a flourishing trade in child pornography over the Internet. It seeks to do it not only by barring the exchange of pictures depicting children in sexually explicit poses, but also by outlawing any attempt to convince another person that offered pictures are of real child pornography involving real children.

In effect, the law makes it illegal to try to dupe other would-be consumers of child pornography into thinking that they are about to receive actual child pornography. The activity is illegal even if the photographs do not involve actual child pornography. In addition, such pandering is illegal even if the photographs don't exist.

The majority justices said the statute was not too broad or too vague to pass constitutional muster.

The law "punishes speech seeking to conclude illegal transactions," Justice Scalia said in a statement from the bench. "Such speech does not get First Amendment protection."

He adds, in the opinion: "Offers to give or receive what it is unlawful to possess have no social value and thus, like obscenity, enjoy no First Amendment protection."

His opinion was joined by Chief Justice John Roberts and Justices John Paul Stevens, Anthony Kennedy, Clarence Thomas, Stephen Breyer, and Samuel Alito.

Justices David Souter and Ruth Bader Ginsburg dissented. Justice Souter writes that prior Supreme Court rulings established that only pornographic photographs of actual children may be prohibited and that virtual child pornography retains First Amendment protections.

Justices Souter and Ginsburg said the 2003 PROTECT Act violates free-speech protections by allowing a new pandering prohibition aimed at suppressing otherwise protected speech. In other words, if virtual child pornography is protected by the First Amendment, how could an attempt to pander virtual child pornography be illegal?

"Just six years ago the court struck down a statute outlawing particular material merely represented to be child pornography, but not necessarily depicting actual children," Souter writes. "The court is going against the grain of pervasive First Amendment doctrine that tolerates speech restriction not on mere general tendencies of expression, or the private understandings of speakers or listeners, but only after a critical assessment of practical consequences."

The decision comes in the case of Michael Williams of Key Largo, Fla. Mr. Williams was arrested in May 2004 after an encounter with an undercover agent in an adult chat room on the Internet.

He logged into the chat room and posted a message that he had "good" photographs of his 2-year-old daughter that he wished to swap for similar photos. An undercover federal agent responded and engaged Williams in a private Web chat. The agent identified himself as a 30-year-old mother with a 10-year-old daughter.

Williams and the undercover agent swapped photos. The children depicted in the photos were clothed and were not engaged in sexually explicit activities.

According to court documents, Williams tried to get the undercover agent to provide a more sexually explicit photograph. When it did not arrive, Williams posted a warning message in the chat room that the undercover agent was a cop. The undercover agent responded in a chat room message accusing Williams of being a cop.

In response to the accusation that he was an undercover cop, Williams posted a hyperlink to seven sexually explicit photographs of children 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 also charged him with violating the federal child-pornography pandering law for his Internet encounter with the undercover agent.

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

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

In overturning the appeals court, the high court said, "The Eleventh Circuit believed it a constitutional difficulty that no child pornography need exist to trigger the statute. In its view, the fact that the statute could punish a 'braggart, exaggerator, or outright liar' rendered it unconstitutional."

The decision continues: "That seems to us a strange constitutional calculus."

Scalia said the 11 Circuit's reading of the law would forbid the government from punishing fraudulent offers to provide illegal products. "We see no logic in that position; if anything, such statements are doubly excluded from the First Amendment," he writes.

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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