TOPICS > Politics

Supreme Court Upholds Child Pornography Law

May 19, 2008 at 12:00 AM EDT
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The Supreme Court upheld a 2003 federal law's provision criminalizing the promotion or presentation of child pornography. Marcia Coyle of the National Law Journal analyzes the Court's decision.
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GWEN IFILL: The ruling was a victory for law enforcement agencies that want to crack down on child pornography and a defeat for those who think some of that prosecution undercuts free speech protections.

Here to walk us through the decision is NewsHour regular Marcia Coyle of the National Law Journal.

Welcome back, Marcia.

MARCIA COYLE, National Law Journal: Thanks, Gwen.

GWEN IFILL: So this case was not really about whether child pornography cases should be prosecuted. It was about more?

MARCIA COYLE: That’s correct. As you know, pornography is protected under the First Amendment. It’s protected speech. But child pornography is not.

In 2003, Congress enacted a law that’s known as the Protect Act. It was Congress’s second attempt to craft a law that was constitutional and that attacked the proliferation of child pornography on the Internet.

Congress enacted a law back in 1996 that the Supreme Court found constitutional problems with. And so Congress went back to the drawing board and came up with the Protect Act.

Presentation and promotion at issue

GWEN IFILL: Now, this case involved a man who was convicted of trafficking in child pornography. But what he challenged was not his conviction, per se. It was something called pandering?

MARCIA COYLE: He pled guilty to two charges, the possession of pornography, which he did not challenge. He raised a constitutional challenge to another provision in the Protect Act known as the anti-pandering provision.

And that targets anyone who knowingly presents, promotes, advertises, distributes, or even solicits material that reflects the belief or induces you, someone else, to believe that the material is child pornography.

He claimed, and a lower court agreed, that that provision was too broad, too vague, that it swept so broadly, that it brought in -- it violated the First Amendment by criminalizing protected speech.

GWEN IFILL: Like, say, a movie trailer which might show what appeared to be sex between minors?

MARCIA COYLE: That's right. That was one of the hypotheticals that the lower court found problems with.

The lower court also suggested an e-mail that had photo attachments and a message line saying something like, "Little Janey in bathtub, hubba-hubba," could get parents or grandparents in trouble if the photos were just simply of a baby taking a bath.

Court rules that law is clear

GWEN IFILL: Now, there doesn't seem to be much argument on the part of the court. It was a 7-2 decision. What did they decide?

MARCIA COYLE: Justice Scalia wrote the majority opinion, and he found, first, that it really wasn't overbroad. He relied heavily -- and I think this is how he got his large majority -- on the fact that a crime is only committed if the speaker, the one who's offering the pornography, has the belief or induces a listener to believe that this is actual child pornography.

GWEN IFILL: Explain to me, why wouldn't it have been?

MARCIA COYLE: Back in 2002, when the Supreme Court had trouble with Congress's first law, the problem there was that Congress was reaching virtual child pornography, where you didn't have actual children involved.

And the Supreme Court said that the child protection reason or rationale for restricting this kind of speech doesn't apply if there are no children involved.

So what they're getting after here is actual child pornography. So there has to be a belief that the material is actual child pornography or the listener is induced to believe that it is.

GWEN IFILL: So the court basically rejected out of hand this notion that this had anything to do with free speech, it wasn't in any way an impingement on constitutional rights?

MARCIA COYLE: That's correct. In fact, the court rejected all the hypotheticals that were offered that showed that this reached too broadly or that the definitions in the act were too vague.

Dissent argues law is too vague

GWEN IFILL: So there were two, obviously, dissents at least on this. What were their arguments? And who was that?

MARCIA COYLE: Justice Stevens -- I'm sorry, Justice Souter wrote a dissent, and he was joined by Justice Ginsburg. And they felt that the law was overbroad, that it actually would reach things like virtual child pornography, which is protected under the First Amendment.

And they just disagreed that the law was not vague. They felt that there had been no showing that the juries and the government were having a hard time getting prosecutions prior to the enactment of this particular law.

And that was the argument the groups like the Free Speech Coalition and libraries made. States that supported the government in this case claimed that the anti-pandering provision was a crucial law enforcement tool, especially since the Supreme Court said that you can't criminalize virtual child pornography.

But these other groups felt that you were putting at risk and chilling legitimate speech with the threat of a long jail term under this provision.

GWEN IFILL: In upholding this law, what is the immediate impact? This man does not get out of jail. The law enforcement organizations say, "A ha, now we can proceed." What happens?

MARCIA COYLE: Well, the man cannot get out of jail. He was sentenced to two five-year terms on each count, the possession and the pandering. But the five-year terms were to run concurrently, so he's in jail for five years regardless.

For law enforcement, again, they feel that they need this tool. And they had also expressed the fear that if this particular provision in the federal law was struck down on constitutional grounds that a number of state laws that had similar anti-pandering provisions would also be in trouble.

GWEN IFILL: And Congress would have had to go back to scratch.

MARCIA COYLE: Once again. It is a very difficult area for Congress to draft legislation in because of the protection for pornography.

GWEN IFILL: OK, well, thank you very much, Marcia, as always.

MARCIA COYLE: My pleasure.