Supreme Court Expands Child Pornography Reach

The Supreme Court released an opinion yesterday (U.S. v. Williams) 533 U.S. ____ (2008), that significantly expanded the reach that prosecutors will have in their arsenals against suspected purveyors of child pornography.

At issue was a 2003 Congressional law - the PROTECT Act - that made it a criminal act to offer, solicit or distribute sexually explicit images of children. A person can be convicted on two grounds under this law: 1) if he believes that the material offered actually depicts sexual images of children; or 2) if he intends to convince a potential recipient that it does.

The defendant, Michael Williams, challenged the constitutionality of the PROTECT Act, not based on his prior specific acts (which involved him pandering sexually explicit photos of his 5-year old daughter online) but based on the First Amendment protection against constitutional vagueness. Williams argued that although his acts were clearly illegal under the statute, there are other parts of the statute that are so vague and unclear that the entire law should be struck down as unconstitutional.

From SCOTUSblog:

"As a result, to decide Williams’ case, the Court was required today to scan the legislation broadly and decide how it applies in the full range of its applications and whether it trenches upon First Amendment rights in too many of those applications. [...T]he major dispute between the majority and the dissent was not over whether the First Amendment protects what Williams did, but how the statute applies in other cases, especially in cases involving simulated child pornography."

The majority in a 7-2 decision effectively ruled that by requiring a subjective belief on the part of the defendant that he believes and intends others to believe the materials he offers are criminal in nature (sexual images of children), there is no room for a mistake on his part. As the Court stated, "[o]ffers to engage in illegal transactions are categorically excluded from First Amendment protection."

The dissent called into question some harrowing exceptions where the legality of the transferral of potentially innocuous photographs such as a grandparent emailing to a relative a photo of a grandchild taking a bath, or the selling of movies that contain purported images of adolescent sex, could come under scrutiny by overzealous prosecutors. So long as the defendant had a subjective but mistaken belief that the images offered were obscene or tried to mistakenly convince others that they were, the defendant could be subject to prosecution even if the images were in fact not obscene.

This is a dangerous high court precendent toward the criminalization of thoughts, and moves us one step closer to the Big Brother mentality that so many of us fear is coming.

More coverage:
New York Times - Supreme Court Upholds Child Pornography Law
Washington Post - Justices Uphold Child Porn Law
LiveJournal - The Court Undermines the First Amendment
Windy Pundit - Don't Ask About Imaginary Child Porn