SCOTUS approves Congress' efforts to criminalize offers or requests for child porn

Yesterday, the United States Supreme Court decided the case of United States v. Williams. This was a facial First Amendment challenge to the "PROTECT Act." This Act was a 2003 Congressional Statute aimed at child-pornography on the internet. The Act was passed in light of earlier Supreme Court holdings that limited child-pornography prohibition to material that could be proved to feature actual children rather than youthful-looking adult actors or virtual images of children generated by a computer.

The 2003 Statute differed from its predecessors insofar as it targeted collateral speech that introduces "virtual porn" and to the child-pornography distribution network. Thus, an internet user who solicits child-pornography violates the Statute, even if the person to whom the request is made possesses no actual child-pornography. Likewise, a person who advertises virtual child-pornography as depicting actual children also falls within the reach of the Statute.

The Supreme Court observed that offers to engage in illegal transactions are categorically excluded from First Amendment protection. Because the Statute criminalized only offers to provide or request to obtain child-pornography the proscription is constitutional. The 11th Circuit Court of Appeals had held that the exclusion of First Amendment protection extended only to commercial offers to provide received contraband. The Supreme Court observed that the 11th Circuit misunderstood the rationale for categorical exclusion. The rationale for categorical exclusion is based not on the First Amendment status of commercial speech, but on the principal that offers to give or receive what is unlawful to possess have no social value and thus enjoy no First Amendment protection.

The 11th Circuit had been concerned that the Statute could be triggered even if no child-pornography existed. For example, an internet user who possess no child-pornography could brag in a chat room that he possess such material and fraudulently offer to provide it to others. The Supreme Court brushed aside this concern by noting that the government can band both fraudulent offers and offers to provide illegal products. Thus, the government can easily forbid punishing fraudulent offers to provide illegal products.

Justices Souter and Ginsberg descended from the Court's ruling. They believed that Congress made an end-run around the First Amendment’s protection of virtual child-pornography by prohibiting proposals to transact in such images rather than prohibiting the images themselves. The majority rejected this contention by pointing out that a crime is committed only when the speaker believes or intends the listener to believe that subject of the proposed transaction depicts real children. Thus, virtual child-pornography, as long as it is marketed or described as such, is still available.

The Court concluded its opinion as follows:

Child-pornography harms and debases the most defenseless of our citizens. Both the state and federal governments have sought to suppress it for many years, only to find it proliferating through the new medium of the internet. This Court held unconstitutional Congress' previous attempt to meet this new threat, and Congress responded with a carefully crafted attempt to eliminate the First Amendment problems we identified. As far as the provision at issue in this case is concerned, that effort was successful.