SCOTUS Affirms Legality of CP Explosion

May 21, 2008

(SCOTUS is the acronym for the Supreme Court Of The United States.)

In United States v. Williams, the United States Supreme Court has affirmed the legality of speech advocating for the legalization of child pornography, although that wasn’t the constitutional question in the case. The law in question is part of the the PROTECT act. Justice Scalia first takes a humorous stab at the naming of such laws in defining the section of law in question.

After our decision in Free Speech Coalition, Congress went back to the drawing board and produced legislation with the unlikely title of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 117 Stat. 650. We shall refer to it as the Act. Section 503 of the Act amended 18 U. S. C. §2252A to add a new pandering and solicitation provision, relevant portions of which now read as follows:
“(a) Any person who—
“(3) knowingly—
. . . . .
“(B) advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains— “(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or “(ii) a visual depiction of an actual minor engaging in sexually explicit conduct,
. . . . .
“shall be punished as provided in subsection (b).” §2252A(a)(3)(B) (2000 ed., Supp. V).

In layman’s terms, it appears that the law prohibits speech offering (or requesting) child pornography, even if the offerer (or the requested party) doesn’t actually have child pornography to provide.

The opinion clarifies things with this example.

Thus, an Internet user who solicits child pornography from an undercover agent violates the statute, even if the officer possesses no child pornography. Likewise, a person who advertises virtual child pornography as depicting actual children also falls within the reach of the statute.

(Regarding virtual child pornography, I think that in the United States, SCOTUS has established that virtual child pornography is illegal only if obscene, the same criteria applied to adult pornography.)

While the court upheld the law, Justice Scalia specifically notes that

As we have discussed earlier, however, the term “promotes” does not refer to abstract advocacy, such as the statement “I believe that child pornography should be legal” or even “I encourage you to obtain child pornography.” It refers to the recommendation of a particular piece of purported child pornography with the intent of initiating a transfer.

So there it is, straight from Supreme Court Justice Antonin Scalia, that blogs and speech advocating changes to child pornography laws or even advocating the legalization of child pornography are constitutionally protected speech, as such speech should be.

My last comment about this case goes back to that “unlikely title”. Talk about hyperbole. The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003. The act is now over four years old and to date, if we are to believe what we hear in the media, it would appear the act hasn’t made any impact at all on the so called problem. FBI director Robert Mueller says so himself.

U.S. law enforcement is losing the battle to combat child pornography and child exploitation on the Internet, FBI Director Robert Mueller said today during a House Judiciary Committee hearing.

Did anyone really believe that the PROTECT act would make more than a token impact? Does anyone really believe that any constitutional law will eliminate child pornography? Do they really believe it?

One Response to “SCOTUS Affirms Legality of CP Explosion”

  1. Anonymous Says:

    I don’t know why the Blogspot mirror of this site gets higher in a Google search result, with less content and all…something should be done about that.


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