US Supreme Court to review child pornography law

The US Supreme Court today agreed to decide the constitutionality of a child pornography law that a lower US court said makes a crime out of merely talking about illegal images.

The issue arose in the case of Michael Williams, whose conviction in the state of Florida for promoting, or pandering, child porn on the internet was reversed by the 11th US Circuit Court of Appeals.

The justices took the case at the Bush administration’s request. It will be argued in the autumn.

The appeals court panel found the promoting, or pandering, provision of the PROTECT Act of 2003 was overbroad and impermissibly vague. “Non-commercial, non-inciteful promotion of illegal child pornography, even if repugnant, is protected speech under the First Amendment,” the Atlanta-based court said.

The law also criminalises the speech of someone who touts material as child pornography when in fact it is clean or non-existent, the court said.

In the appeals court’s view, the pandering provision could even apply to an innocent email sent by a grandparent and entitled “Good pics of kids in bed”, showing grandchildren dressed in pyjamas.

One sender might be a proud grandparent while another might be a convicted child molester who hopes to trade for more graphic photos with like-minded recipients, the appeals court said.

In asking the court to take the case, the administration said the appeals court read the law’s language more broadly than is warranted.

Congress made clear that “efforts to stimulate, feed or capitalise on a market for what purports to be child pornography deserve no sanctuary”, Solicitor General Paul Clement, the government’s lawyer before the justices, said in court papers.

Authorities arrested Williams in an undercover operation aimed at combating child exploitation on the internet. A Secret Service agent engaged Williams in an internet chat room where they swapped non-pornographic photographs. Williams advertised himself as “Dad of toddler has ’good’ pics of her and me for swap of your toddler pics, or live cam.”

After the initial photo exchange, Williams allegedly posted seven images of actual minors engaging in sexually explicit conduct. Agents who executed a search warrant found 22 child porn images on Williams’ home computer.

Williams was also convicted of possession of child pornography. That conviction, and the resulting five-year prison term, is not being challenged.