October 30, 2007
by Nina Totenberg , NPR

Listen to the report here.

Morning Edition, October 30, 2007 · The U.S. Supreme Court on Tuesday will examine yet another congressional attempt to legislate against sexually explicit material on the Internet that involves children.

At issue is a 2003 federal law passed after the Supreme Court struck down an earlier attempt.

The last time Congress tried to outlaw child pornography, the Supreme Court said the law was so overbroad that it could have banned Shakespeare's Romeo and Juliet as a portrayal of sexual conduct between teenagers. When Congress tried again, it included a provision mandating a five-year minimum prison sentence for anyone offering or receiving images that show or purport to show children engaged in sexually explicit conduct.

A federal appeals court in Atlanta struck down the provision, a part of the Protect Act, citing the legal axiom that Congress may not write a law so broad that it punishes both protected speech and speech that is not protected by the First Amendment.

In this case, the appeals court said, Congress had written a law so broad that it covered even a braggart, an exaggerator or a liar, even someone who falsely advertises Walt Disney's Snow White as child pornography.

The actual defendant in the case to be argued before the Supreme Court on Tuesday is neither a braggart nor a liar. He was caught through a sting operation with real child pornography, pictures of real children, on his computer hard drive. His conviction for that crime — possession of child pornography — is not in doubt.

The Supreme Court has previously ruled that sexually explicit material involving real children, whether obscene or not, is not protected by the First Amendment because of its link to the sexual abuse of children. So the only question in this case is whether defendant Michael Williams could also be prosecuted for offering an undercover agent he met in an Internet chat room material that purports to be child pornography. The government contends that whether a person has the real deal or not is irrelevant.

Jay Sekulow, director of the Rev. Pat Robertson's American Center for Law and Justice, filed a brief in the case defending the law as constitutional.

"What Congress said was, 'Look, this problem of child porn is so significant that even those that don't actually possess it, but are alleging that they do have this child porn, that in and of itself is criminal,'" Sekulow says.

But anti-censorship groups counter that Congress has enacted a law that punishes so broadly that producers and marketers could go to prison for advertising award-winning movies such as The Tin Drum, American Beauty and Lolita.

Michael Bamberger filed a brief on behalf of the association of American Publishers and other mainstream media organizations.

"It's really a very twisted and concerning situation," Bamberger says, "because it's an attempt to restrict the distribution of sexual content containing non-obscene materials relating to a minor that is not child porn."

That notion, says Jay Sekulow, is absolutely incorrect.

"The courts are very careful to understand that true artistic expression is one thing, pandering child pornography is something different."

But how would the courts make that judgment? How are they to determine what is artistically legitimate and what is not? Sekulow says the government has to prove intent.

"Was the person trying to entice someone into believing that they possessed or were distributing child pornography? If the answer to that is yes, that person was doing it – guilty," Sekulow says.

The government and some 28 states say they need this tool to eradicate the market for child pornography on the Internet.

"It is the exploitation of children, because it's feeding a frenzy to the end user," Sekulow says.

But anti-censorship groups counter that what the law really wipes out is free speech.

"Someone who is convicted under this law of marketing perfectly legal materials, number one, faces potentially five to 10 years, first offense," Bamberger says. "And number two, in many if not most states, [the person] will then be subject to the sexual-offender registration laws, for having sold something which is perfectly legal. And what concerns my clients, the mainstream media, is that this is going to have a significant chilling effect on people like them, who will have to sort of walk around how they will discuss the plot of Lolita on video."

A decision in the case is expected by the end of the Supreme Court term.