Supreme Court to Look at Child Porn

Brian Doherty | October 30, 2007

That is, the issue of child porn. They will be hearing a case today involving whether merely advertising or talking about not-necessarily-actually-real child porn can be banned. From the USA Today account:

Challengers to the law, including the National Coalition Against Censorship and the American Booksellers Foundation for Free Expression, counter that it sweeps too broadly. They say it threatens the marketing of Lolita and other fictional depictions of adolescent sex.

.........

Since 1997, the Supreme Court has invalidated various provisions as too broadly written, potentially chilling speech or impinging on adult rights to pornographic pictures of adult men and women.

In 2002, for example, the court rejected a 1996 law against "virtual" child porn because Congress so loosely defined the materials that the court found the prohibition might have covered depictions of Shakespeare's Romeo and Juliet.

The current challenge arises from Congress' attempt to rewrite the 2002 statute. Part of the disputed provision makes it a crime — punishable by at least five years in prison — to advertise, promote, distribute or solicit materials purported to show children in sexually explicit acts.

Much background and links on the case, U.S. v. Williams.

See also this fascinating (and lengthy) account from New York magazine of a New York Times reporter who insists his life was turned upside down when he tried to save one youngster from a life of Internet child porn using methods that some other reporters, and prosecutors, find questionable. Some previous reason blogging on the background of that one.

Comments

|10.30.07 @ 9:39AM|#

Should I open the bottle now and get a start on this decision?

|10.30.07 @ 10:04AM|#

O'Connor is Not there...So...U can go ahead and open the Bottle Warren.

With Kennedy as the new O'Connor...predicting these Supreme Court Decisions should b easy.

|10.30.07 @ 10:06AM|#

Should I open the bottle now and get a start on this decision?

Go right ahead. This thing has the stench of "for the children" all over it...

American barbarian|10.30.07 @ 10:30AM|#

I'm for anything that would prohibit Shakespeare.

Dave|10.30.07 @ 10:42AM|#

Best. Headline. Ever.

|10.30.07 @ 11:14AM|#

I once did video work for a now-defunct department store chain. Once, at a regional managers meet I was taping, a bean-counter got up and discussed at length the items the stores sold and how they were skewing. I will never forget looking at him through the viewfinder as he uttered the words "boys pants are down all over the country," and immediately trying to think of a way to edit that into our christmas party tape.

lunchstealer|10.30.07 @ 11:26AM|#

Thomas is bringing the popcorn.

|10.30.07 @ 12:48PM|#

Does anybody have a link to the actual law?
Has anybody been prosecuted under this act that was not plainly guilty of being a scumbag child pornographer? Realizing that statutes can be poorly written and that I'm not an attorney, I'd still like to read the statute (preferably annotated for the layman). Help please.

I'm a fanatical supporter of First Amendment protections, but kiddie porn crosses the line. I'm not about to be persuaded by "libertarian principles" that purveyors of such vile filth deserve anything but hard time.

|10.30.07 @ 1:08PM|#

Child abuse, involving an actual child being abused, is very bad. An adult typing the words "child abuse" (or any other words, perhaps an explicit description) doesn't abuse any actual children.

Murder is bad, but mystery writers aren't arrested for describing fictional murders.

Would you find it acceptable to be thrown in prison for espousing your religious views, because someone else called them "vile filth"? Or are you the world's arbiter on what is or isn't vile filth?

|10.30.07 @ 1:44PM|#

Seth, No, mystery writers should not go to jail. OTOH, people who market/distribute snuff films should. Surely the difference is not too hard to understand.

In other words, Lolita is safe. So is Scum Bucket Books® publication "My Dog, My Daughter" complete with illustrations. That's why I'd like to see the law.

|10.30.07 @ 3:11PM|#

J sub D
The law in question is 18 U.S.C. 2252A(a)(3)(B)
To wit:

(a) Any person who-

(1) knowingly mails, or transports or ships in interstate or foreign commerce by any means, including by computer, any child pornography;
(2) knowingly receives or distributes-

(A) any child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer; or
(B) any material that contains child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer;

(3) knowingly-

(A) reproduces any child pornography for distribution through the mails, or in interstate or foreign commerce by any means, including by computer; or
(B) advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains-

(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or
(ii) a visual depiction of an actual minor engaging in sexually explicit conduct;

The question arises from (3)(B):

any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe,

This makes it illegal(and punishable) for an individual to claim they have child porn, regardless if that claim is true.
The SCOTUSWiki link that Doherty posted has a bunch of data regarding the case.

|10.30.07 @ 4:09PM|#

Since the law says "advertises" I can assume this article will be considered illegal child porn. I was not thinking about child porn at all until this article brought it to my mind. Kind of like an advertisement no?

|10.30.07 @ 6:23PM|#

Damit this should be simple.

If no minors were involved in making the film/video/dvd/whatever, it's not child porn.

So animated "virtual" child pornography doesn't qualify.
Neither does a 30-year-old in a schoolgirl outfit.

How hard is that?

|10.30.07 @ 7:25PM|#

Kwix, thank you much. I try never to use wiki as a link because I usually ignore wiki links. It's probably time for my aperiodic Wiki re-assessment.

This makes it illegal(and punishable) for an individual to claim they have child porn, regardless if that claim is true.

I don't have a big problem with that.

Damit this should be simple.

If no minors were involved in making the film/video/dvd/whatever, it's not child porn.

So animated "virtual" child pornography doesn't qualify.
Neither does a 30-year-old in a schoolgirl outfit.

How hard is that?

But if it's written in plain English, thousands of lawyers would have to get jobs actually producing something of value.

Mad Max|10.30.07 @ 10:43PM|#

The World Trade Organization should look into this law as a blatant attempt to suppress the Japanese entertainment industry.

LarryA|10.31.07 @ 1:33AM|#

This makes it illegal(and punishable) for an individual to claim they have child porn, regardless if that claim is true.

I don't have a big problem with that.

So if your sixteen-year-old daughter tapes an encounter with her boyfriend and tells her best friend about it, the couple should be imprisoned for 20 years? And no, I wouldn't want my young teenage daughter to have sex. I just don't want her to be punished so severely for it.

Or what if I want to report a sexual predator, and tell the DA I have a cellphone video as evidence. I don't see the "lewd intent" element that used to be in obscenity laws.

It would also be interesting to see how one of Balco's SWAT teams treats a reviewer who publishes a column saying, "Don't watch this movie. It's child porn."

In other words, Lolita is safe.

This year.