A federal law criminalizes the "pandering" of child pornography. The pandering law is violated by one who promotes "material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material" visually depicts a minor engaging in sexually explicit conduct. Note that the "material" need not actually depict sexual conduct, or even a minor. Note also that the panderer need not actually believe, and need not intend to advertise the belief, that the "material" depicts minors engaging in sexual conduct. Seems like an awfully vague law that doesn't carefully target actual wrongdoers, doesn't it?

In this lengthy opinion (pdf), the Eleventh Circuit concluded that the law is overbroad. Congress, the court concluded, may not "burn the house to roast the pig." Echoing a concern that Sen. Leahy raised, the court worried that the law "federally criminalize[s] talking dirty over the Internet or the telephone when the person never possesses any material at all." The court was particularly troubled that the law criminalizes speech that "reflects the belief" that material is pornographic een when the belief is unsupported by reality, and thus infringes not only upon freedom of speech but upon freedom of thought.

The U.S. Supreme Court today agreed to review the Eleventh Circuit's decision, making another attempt to bring clarity to the murky world of child porn laws, which too frequently target material that isn't pornographic and that doesn't actually depict a child. The Court's prior child porn jurisprudence is summarized in the Eleventh Circuit decision, linked above.