WASHINGTON (BP)–The United States Supreme Court handed Congress a victory May 19 in its effort to combat child pornography after a previous effort fell short in the justices’ eyes.
The high court voted 7-2 to reverse a lower court and uphold a 2003 law that bars the promotion or solicitation of actual or ostensible child pornography through such means as mail or the Internet.
Writing for the majority, Associate Justice Antonin Scalia rejected the unanimous decision of the 11th Circuit Court of Appeals, which said the law was overly broad and vague.
“There is no doubt that this prohibition falls well within constitutional bounds,” Scalia wrote. “[W]e hold that offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment.”
Supporters of the law applauded the ruling.
“Friends of children and decency throughout the land have cause for rejoicing today,” said Richard land, president of the Southern Baptist Ethics & Religious Liberty Commission. “This decision is an encouraging sign that the Supreme Court is prepared to once again begin allowing Americans to exercise their authority and responsibility to protect children in this culture.
“This question needs to be asked: If society is not allowed to protect children from those who would pimp and pander pornographic images of children to their potential adult predators, how could you call that society decent?” Land said.
Jay Sekulow, chief counsel of the American Center for Law and Justice, described the ruling as “a very sound and reasoned decision that is long overdue. It’s encouraging to see the high court finally give the government the tools it needs to punish those who pander or promote child pornography.”
The opinion in U.S. v. Williams validated the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act, a law approved by Congress after the Supreme Court rejected a similar attempt in 2002. In that decision, the justices struck down a provision in the 1996 Child Pornography Prevention Act that addressed the use of computer-generated or enhanced images that appear to be of children involved in sexually explicit acts. Congress revised the “pandering” provision with the PROTECT Act in an effort to meet the high court’s criteria for constitutionality.
What Scalia described as the PROTECT Act’s “pandering and solicitation provision” is designed to punish a person who “advertises, promotes, presents, distributes, or solicits … any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe,” it is or contains “sexually explicit conduct” by a minor.
After a federal judge upheld the PROTECT Act, a three-judge panel of the 11th Circuit Court, based in Atlanta, ruled its “pandering” provision still fell short.
The Supreme Court, however, rejected arguments the law could sweep up some Hollywood films in its attempt to combat the spread of child pornography.
“Child pornography harms and debases the most defenseless of our citizens,” Scalia wrote. “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. The 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 addition to Scalia, the seven-member majority in the ruling consisted of Chief Justice John Roberts and Associate Justices John Paul Stevens, Anthony Kennedy, Clarence Thomas, Stephen Breyer and Samuel Alito.
Associate Justices David Souter and Ruth Bader Ginsburg dissented.
In his dissent, Souter said the law remained unconstitutional because of overbreadth. “Perhaps I am wrong, but without some demonstration that juries have been rendering exploitation of children unpunishable, there is no excuse for cutting back on the First Amendment …,” Souter wrote.
Land said, “Justice Souter’s dissenting vote reminds one once again of what a catastrophic nominee he was. If there has ever been a more disastrous nominee to be elevated to the court than Justice Souter, I don’t want to know who would it be. It would be too depressing.”
Republican President George H.W. Bush nominated Souter in 1990.
The case involved convictions of Michael Williams for possessing child pornography and “pandering” material in a way that signals it consists of child pornography. In 2004, Secret Service agents found on two computer hard drives at Williams’ home more than 20 images of minors engaged in sexually explicit behavior or lasciviously displaying their private parts. A Florida resident, Williams was sentenced to five years’ imprisonment on both counts, with the terms to be served concurrently.
Though the 11th Circuit Court overturned the “pandering” conviction, it upheld the five-year sentence for possession of child pornography.
The court’s support for the PROTECT Act came after Congress suffered a series of setbacks in its efforts to deal with online indecency and child pornography.
In 1997, the Supreme Court struck down the portion of the Communications Decency Act that barred the online transmission of indecent material but maintained the law’s provision on obscenity. The high court later ruled against the Child Online Protection Act, a 1998 measure that targeted commercial websites that make sexually explicit material available to minors.
In a limited victory for foes of online indecency, the justices upheld in 2003 the Children’s Internet Protection Act, which requires public and school libraries that receive government Internet discounts to install filters on their computers to block pornography.
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Tom Strode is the Washington bureau chief for Baptist Press.
