Tuesday, May 20, 2008

SCOTUS Upholds Child Porn Law

As Justice Scalia's majority opinion notes in the opening paragraph "We have long held that obscene speech--sexually explicit material that violates fundamental notions of decency--is not protected by the First Amendment." Thus the "pandering" (or solicitation) of real or purported child pornography online or through the mail is not unconstitutionally vague.

Writes Scalia, "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. Simulated child pornography will be as available as ever, so long as it is offered and sought as such, and not as real child pornography. " The vote was 7-2 to uphold what Scalia referred to as the "unlikely named" PROTECT (Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today) Act of 2003.

Dissenting Justices Souter and Ginsburg agreed that pandering ("fraud" as Souter put it) of child porn was illegal, but felt the majority went too far in its dismissal of a "real-child requirement", meaning that one could be prosecuted for pandering virtual child porn, whether or not the person is actually in possession of said pictures. Souter wrote, "If the act can effectively eliminate the real-child requirement...a class of protected speech will disappear[...] I believe that maintaining the First Amendment protection of expression we have previously held to cover fake child pornography requires a limit to the law's criminalization of pandering proposals."

As the Times summarizes, "The law bars not only the exchange of sexually explicit images of children but also any attempt to convince another person that child pornography is available. The law covers offers that do not contain actual pornography and even offers in which no pictures exist."

It's an eye-opening decision when you read it, mainly because the justices discuss in-depth a sordid world where very few researchers or writers fear to tread (that of child pornography). It can be stomach-turning at times, but the fact that people continue to traffic in these kinds of disturbing images (fake or otherwise) makes it a necessary function of the court to have to tackle.

The case is U.S. v. Williams (2008).

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