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High Court Mulls Free Speech Implications of Porn Law

October 30, 2007 at 12:00 AM EST
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GWEN IFILL: Now to that child pornography case today at the Supreme Court. As always, NewsHour regular Marcia Coyle of the National Law Journal was at the court, and she joins us now.

Welcome back, Marcia.

MARCIA COYLE, National Law Journal: Thanks, Gwen.

GWEN IFILL: So was this about — this wasn’t about possessing child pornography. This was about pandering. Explain what that is.

MARCIA COYLE: Sure. There is a federal law that’s commonly known as the Protect Act which is designed to get after child pornography, particularly the market for child pornography on the Internet, which has grown tremendously in recent years. A provision of the law prohibits anyone from offering, promoting, presenting, distributing or soliciting any material that reflects the belief or causes someone else to believe that the material is child pornography, even if it isn’t.

Web link contained pornography

GWEN IFILL: So this guy, Michael Williams, who was at the heart of this case, is, by the way, still serving a sentence right now for actually possessing child pornography and for pandering, he's the one who brought this case. What is it that he did, that they say he did?

MARCIA COYLE: He was charged as a result of basically an undercover operation on the Internet. A Secret Service agent went, logged into an Internet chat room that was known to talk about and display child pornography. And he communicated with Michael Williams, and Williams eventually sent him a computer hyperlink that contained child pornography pictures.

They traced his identity, location, searched his computer, found child pornography on the computer, charged him with possession and pandering. He went on appeal after his conviction to challenge just the pandering provision in the federal law. He said it was unconstitutional because it was overbroad, it was vague, it would reach speech and expression that's protected by the First Amendment.

GWEN IFILL: Now, just to be clear, this is about -- when they say "overbroad," are we talking about pornography that just existed or pornography that had to be offered for sale?

MARCIA COYLE: It has to be offered for sale or someone is soliciting it.

Law considered too vague

GWEN IFILL: So how did it play out today in front of the court? Who argued which side?

MARCIA COYLE: Well, the government had lost in the lower court. The lower court felt that it was overbroad and vague. In fact, the lower court said that an e-mail sent to grandparents that had in the subject line, "Good pics of kids in bed," and yet contained pictures of the grandchildren in their pajamas playing in bed, could be covered by this statute and parents could be accused of pandering. So they struck it down.

In the court today, the government defended the statute. It said that there is no First Amendment protection for offers or solicitation of illegal products, and child pornography is illegal. The government's attorney, Solicitor General Paul Clement, faced a host of hypotheticals from the justices as they tried to see how far this statute reaches.

GWEN IFILL: For instance, so what was the most interesting one?

MARCIA COYLE: Well, there were a number about movie reviews. The chief justice asked, what if a movie reviewer of a movie like "Lolita" or "Traffic" or "American Beauty" said, "This movie is horrible, and it's child pornography"? Is that pandering, if it creates belief in somebody that it is child pornography and they want to see it?

GWEN IFILL: It was just watching "Traffic" last night on TV. If someone tried to sell me that DVD, is that pandering?

MARCIA COYLE: No, because, the government argued in response, there is a limit here. There has to be a reasonably objective belief by someone that it is child pornography. And most people realize that movies are pretend, that it's not really happening.

So the government said you have to have that objective test. And there also has to be a subjective intent on the part of the speaker to make you believe that it is child pornography.

Free speech rights asserted

GWEN IFILL: So even if it's just, say, a really bad, tasteless joke that someone sends over the Internet, not just an innocent picture of the grandkids. That is still considered to be covered by free speech protection?

MARCIA COYLE: Yes. The government said that there are a lot of examples that the justices offered where the statute might apply, but the government said that there are defenses here that somebody could challenge the statute as applied to that person's individual situation.

Mr. Williams' attorney, Richard Diaz, he, of course, took the opposite point of view. He said that this statute really punishes beliefs, thoughts, expressions, because it really turns on what the speaker is believing. It doesn't turn on whether the material is actually child pornography.

GWEN IFILL: In his client's case, because his client didn't actually possess what he was seeking when he said he was trying to sell?

MARCIA COYLE: His client did. In fact, his client falls outside of this. I mean, anybody can bring what they call an overbreadth challenge to a statute that they feel infringes on First Amendment rights of someone else, of another party. So that's why Mr. Williams was challenging this.

And Mr. Diaz, again, claimed that this would make illegal, this would criminalize a lot of protected speech. And he is supported on his side by groups like the American Booksellers Foundation, Coalition for Free Speech.

They feel that the pandering provision would indirectly affect the marketing of legitimate books, DVDs, movies, because the marketers would fear a lengthy prison sentence. And the prison sentence is not light for pandering. Mr. Williams received five years. You could receive a maximum of 20 years.

GWEN IFILL: And even if this case was upheld, his argument was upheld, he wouldn't be released from jail?

MARCIA COYLE: No, he's still going to be in jail, because he's serving five years, as well, for the possession of child pornography.

Challenges for both sides ahead

GWEN IFILL: So aside from the examples that were brought up by the justices, what kind of reaction, what kind of engagement was there today between the bench and people arguing either side of the case?

MARCIA COYLE: It was very interesting, because initially when the government went up first, it appeared that the statute and the government were in trouble. You had comments from Justice Breyer, for example, who said that it seemed that this statute would even criminalize a rather common activity of high school boys sharing and looking at dirty pictures.

GWEN IFILL: You don't hear a Supreme Court justice say that a lot.

MARCIA COYLE: No, you don't. And so it seemed that the government was in trouble. But then when Mr. Diaz got up, the justices seemed to say, well, you can't really give us any definite examples of how this plays out in the real world where it really does run afoul of the First Amendment.

Maybe there is overbreadth here, but maybe it's not substantial. And the way to go is what the government suggested as a backup argument, that -- we won't strike down the statute as facially unconstitutional, but if someone thinks that their rights have been violated, let them bring a challenge saying, "The statute as applied to me and what I did is unconstitutional."

GWEN IFILL: Fascinating. Marcia Coyle, as always, thank you very much.

MARCIA COYLE: You're welcome.