Supreme Court Upholds Child P*orn Law

By Jeralyn, Section Court Decisions
Posted on Mon May 19, 2008 at 10:49:02 AM EST
Tags: Supreme Court (all tags)

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The Supreme Court has upheld a part of the PROTECT Act that provides a five year mandatory minimum sentence for possession of child pornography. The Court found the law was not vague or over-reaching. The case is U.S. v. Williams and the opinion is here (pdf).

The court, in a 7-2 decision, brushed aside concerns that the law could apply to mainstream movies that depict adolescent sex, classic literature or innocent e-mails that describe pictures of grandchildren.

The law sets a five-year mandatory prison term for promoting, or pandering, child p*rn. It does not require that someone actually possess child p*rnography. Opponents have said the law could apply to movies like "Traffic" or "Titanic" that depict adolescent sex.

The majority opinion was written by Justice Anton Scalia. Justices Ginsberg and Souter dissented. More...

.... Souter said promotion of images that are not real children engaging in pornography still could be the basis for prosecution under the law. Possession of those images, on the other hand, may not be prosecuted, Souter said.

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Supreme Court Upholds Child P*orn Law | 31 comments (31 topical)

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So much for free speech (5.00 / 1) (#2)
by dianem on Mon May 19, 2008 at 10:55:27 AM EST

You can still speak freely, as long as you don't offend social mores. Like Henry Ford said - you can have any color, as long as it's black. I thought the child pornography laws were designed to protect children from exploitation, not to punish people for merely fantasizing about exploiting them. What's next? If I write a book about murdering the President, do I go to jail? If I publicly suggest that I've wanted to blow up a building, should I be prosecuted? I was reading a website about controversial old movies, and I decided that I want to watch "Lolita". If I put it only Netflix queue, am I subject to prosecution?

The really scary part of this... (none / 0) (#6)
by dianem on Mon May 19, 2008 at 10:59:37 AM EST

...is that, looking back on this post, I thought "I shouldn't have written that. I might get in trouble". It even occurred to me to ask a moderator to remove it. I know it's silly to think that way, but how dare I even mention killing the President or blowing up a building? Rulings like this destroy free speech not just by prosecuting it, but also by forcing people to review everything they say out of fear of prosecution by the "thought police".


relax (none / 0) (#16)
by Saxon on Mon May 19, 2008 at 11:56:03 AM EST

people have written books and made movies about killing presidents and no one is going to jail. on the other hand if you state that you want to blow up a building, you might be subject to some sort of investigation or surveillance - and that seems right to me.

i dont believe there should be thought crimes laws; so you shouldn't be punished for your thoughts. but let me guess, you would be more than happy to support "hate crimes laws" - as long as the hate is coming from the other side, right?

it is people like you who can't seem to differentiate between real issues and imaginary hardships that need to relax a bit and think more before yelling the sky is falling.


Actually, I don't like hate crime laws (none / 0) (#17)
by dianem on Mon May 19, 2008 at 12:19:40 PM EST

And I have seen calls for prosecuting people who write books about committing crimes. Check out any right wing site. Agents have visited the homes of people who did nothing but create artwork about attacking the President or making bombs. It's not that far-fetched. The SC has not, to my knowledge, endorsed this idea until today, and I find it frightening that they seem to have done so. Pedophilia is a serious issue, but I don't want to see it turned into a wedge which allows the government to further restrict the rights given to Americans in the Constitution.

As for hate crimes - I do not support any law that punishes thoughts that never were backed up by actions, or punishes people for their thoughts. If somebody vandalizes a church, they should be prosecuted for vandalism. If somebody writes hateful things about Muslims, they should be punished by society, not the government. If somebody calls for murder of anybody, they should be prosecuted for attempted murder. I support the right of the KKK to march anywhere they please whenever they please, assuming they have the required permits and that theri opponents are permitted to hold peachful rallies in opposition. Don't assume that you know anything about me, or "people like me".


: LoL (none / 0) (#19)
by Wile ECoyote on Mon May 19, 2008 at 12:48:51 PM EST

Check out any right wing site.
Ok, how about a link from a right wing site supporting your contention.
I am guessing you are against the "fairness doctrine" because of its stiffling of free speech.

FTFA (none / 0) (#8)
by sarissa on Mon May 19, 2008 at 11:02:17 AM EST

But Justice Antonin Scalia, in his opinion for the court, said the law does not cover movie sex. there is no "possibility that virtual child pornography or sex between youthful-looking adult actors might be covered by the term 'simulated sexual intercourse.'" Scalia said.


could be scary (5.00 / 1) (#5)
by DandyTIger on Mon May 19, 2008 at 10:58:44 AM EST

if this ruling can really be that overreaching. And if so, only 2 dissenting is bad. The promoting part sounds a bit vague too. Wonder if it will take a new case when this ruling is used in some overreaching manner to reign it in.

It sure seems way too easy to get everyone to overreact in this area since the real crimes in this area rate a 10 on the disturbing creepy scale. But it's sad that so many are too happy to give away liberties to stop it.

The liberty to possess child pornography?? (none / 0) (#10)
by sarissa on Mon May 19, 2008 at 11:05:26 AM EST

Take it please, I honestly don't want it.


Problem is.... (none / 0) (#14)
by kdog on Mon May 19, 2008 at 11:37:13 AM EST

once they start taking, they take and take and take and never give it back. I'd rather put up with some nasty sh*t out there than surrender my right to look at photos, read books, and watch movies that I choose.

I encourage throwing the book at child porn producers and child molesters, ya know...people that actually harm children. But some creep merely looking at pictures alone shouldn't get 5 years...that's just nuts.


it is based (none / 0) (#26)
by MichaelGale on Mon May 19, 2008 at 05:56:28 PM EST

on the fantasy while looking. Many have a physiological change and when that happens consistently, turns into compulsion.

It is protecting children.


: There are limits... (none / 0) (#31)
by kdog on Mon May 19, 2008 at 08:27:37 PM EST

to protecting children. To me, that's thought crime, cut and dried. Especially when it comes to virtual images or writing. Don't get me wrong...this is sick sick sh*t that turns my stomach, but giving the government power to prosecute thought crime is sicker sh*t in my book.
I could support some punishment for possesing images of real children victimized, but could in no way support depictions by adult actors, writing, or virtual stuff being criminal. That's too far down the slippery slope for my liking.

Maybe not to the child (none / 0) (#28)
by MichaelGale on Mon May 19, 2008 at 06:05:20 PM EST

who is forced to participate.


the stakes are considerable (none / 0) (#1)
by Lupin on Mon May 19, 2008 at 10:55:10 AM EST

...And who here trusts the prosecutors to use common sense discretion?

This is yet one more reason why it is essential to have a Democratic President next year. With good odds in Congress, and likely an opportunity to replace several Supremes, we might finally be able to turn the tide.

I don't get it. (none / 0) (#3)
by Steve M on Mon May 19, 2008 at 10:57:49 AM EST

Child p*rn is appalling, of course. But I can't see what's criminal about it other than the exploitation of children that's necessary in order to produce it. Punishing people for downloading or possessing just seems like society saying "we're going to throw you in jail because we think you're a sick f*ck."

And if the topic is "virtual" p*rn, where no actual children are involved at all, I still think it's sick stuff but where's the basis for criminalization? I was under the impression that we had enough crimes going on in this country already that we didn't need to go inventing new ones.

Two theories... (5.00 / 1) (#22)
by Alec82 on Mon May 19, 2008 at 03:55:39 PM EST

...were offered to justify criminalization. The first (and correct one, IMO) is market demand. That explains prison sentences for those who download or possess, and I think that is probably correct.

The second theory, which is less convincing, is continuing victimization: each time the images are viewed the victim is revictimized.

And these aren't new laws. Laws specifically targeting child pornography have been around since at least the 1960s. They were designed in part, I think, to counteract the inability of prosecutors to obtain convictions when prosecuted as obscenity violations.

This opinion was not much of a surprise, nor can I say I disagree with it.


: Children are revictimized (none / 0) (#27)
by MichaelGale on Mon May 19, 2008 at 06:03:46 PM EST

And watching or looking at them in pornography is the act of a perpetrator.

the porn slope (none / 0) (#11)
by Capt Howdy on Mon May 19, 2008 at 11:11:58 AM EST

is a slippery one.
no pun intended.


If I receive span with child porn in it (none / 0) (#23)
by catfish on Mon May 19, 2008 at 04:12:23 PM EST

what happens? And this includes drawings, not photos or movies.


Still, couldn't this law (none / 0) (#4)
by HelenK on Mon May 19, 2008 at 10:58:19 AM EST

be modified by the legislature anyway, just to clarify so it is not a thought-crime law?

Just because the court says the law is OK, doesn't mean it couldn't be fixed?

I am in the minority at this site (none / 0) (#7)
by Big Tent Democrat on Mon May 19, 2008 at 11:00:33 AM EST

and agree with the majority opinion here.

: I am with you (none / 0) (#15)
by Saxon on Mon May 19, 2008 at 11:51:20 AM EST

- i don't understand the big deal when a very narrowly defined child porn related activity is considered "not protected free speech"
we as a nation merrily went along with mccain's "campaign finance reforms" which were exactly opposite of constitution's 1st amendment - right to free speech, especially political speech that criticizes the govt and people in power (incumbents). now we whine that child porn is not allowed, because it is free speech? pray tell me what is that speech conveying?

: I went to school w/ a guy (none / 0) (#21)
by kredwyn on Mon May 19, 2008 at 02:41:49 PM EST

who worked with members of a division on this topic a few years back.
He's haunted by some of the stuff he saw.

Fair Game (none / 0) (#9)
by Athena on Mon May 19, 2008 at 11:05:07 AM EST

Child porn is unprotected speech and generally has been considered "narrowly tailored" enough to pass muster under the 1st Amendment. I think that activites contributing to its production and distribution are fairly criminalized.

Slightly offtopic: Where in titanic? (none / 0) (#12)
by jerry on Mon May 19, 2008 at 11:14:22 AM EST

I had to leave Titanic once or twice to take my daughter outside in her stroller (first movie we got to see post birth and she was about six months old....) But where in Titanic is there underage sex? The heroes were youthful (damn that dicaprio anyway), but certainly of age, weren't they?

What about (none / 0) (#13)
by eric on Mon May 19, 2008 at 11:22:44 AM EST

Pretty Baby? If you have a copy, do you have to burn it? Am I committing a crim by asking?

well (none / 0) (#18)
by boredmpa on Mon May 19, 2008 at 12:38:02 PM EST

it sounds like owning it is fine, but by linking to it and speaking about it then you are effectively promoting it...which could net you five years.

or a free speech challenge and some more work for the supreme court.


: I don't know if it pertains to state law (none / 0) (#29)
by MichaelGale on Mon May 19, 2008 at 06:13:51 PM EST

or federal but you can be arrested if you watch child porn on your computer because of what you are fantasizing.
And I agree with it. Sometimes free speech is used for the most disgusting and harmful acts. These are kids, some infants, that are being exploited.
grrrrr

Uh, oh. Watch out! (none / 0) (#24)
by 1980Ford on Mon May 19, 2008 at 05:33:07 PM EST

"It would be an odd constitutional principle that permitted the government to prohibit offers to sell illegal drugs, but not offers to give them away for free."

Slip, p 12.

Promotion, not possession (none / 0) (#25)
by txpublicdefender on Mon May 19, 2008 at 05:53:22 PM EST

Jeralyn, your post says at the top that the Court upheld the 5-year mandatory minimum for possession of kiddie porn, but the decision dealt with the promotion/pandering provision of the law, not possession.

You are all children (none / 0) (#30)
by Sumner on Mon May 19, 2008 at 08:07:15 PM EST

What cockamamie, slipshod adjudicating,
upholding such Orrin Hatchet-job-on-the-Constitution bunk.
I do not consent.

It is quite telling that the lone female on the court
was one of the ones to dissent.

one problem with the law & other comments (none / 0) (#32)
by zaitztheunconvicted on Mon May 19, 2008 at 11:28:35 PM EST

I don't currently have a website up that deals with the moral and legal implications of the US child pornography laws, and perhaps I never will. (If I have a conversation at some point with God to clarify some things, it would be possible, but for now lets assume that it won't happen.) However, if it did happen, one thing that it should include would be a statement offering to show people some child pornography and links to or copies of one of the images of Miley Cyrus recently circulated on the net, and of Vanessa Hudgens nude, with the statement that by the laws of Washington state (as interpreted by Wash state courts) and of a number of other states, such images are child pornography.
Perhaps, though, the SCOTUS has approved a law that would prohibit my teasing readers with such photos, and the statement that these images are child pornography, together with the legal explanation as to why, Washington state law, as interpreted by Wash courts, makes it so.
*As for why a seemingly sane person would expose himself to legal risk by putting up such a website
arguing that the US laws are poorly conceived and applied, it goes back to my religious upbringing and beliefs; where I grew up, we revere martyrs.

I haven't read the decision. However, my guess is that I would side with Ginsberg and against Scalia on this.

In fact, I think that the law ought to be how it was understood pre-1978 and pre-Ferber, in which, in order for an image to be successfully prosecuted, it had to be obscene. I'd be reasonably happy with obscene images being those that were harming or likely to harm a "child," but portraying a willing and happy 14-year-old as potentially sexually interesting doesn't rise to the level of obscene.

And I hope that in the long run, God takes vengeance on those legislators, judges and prosecutors who, in my judgment, have harmed society by promoting the prosecution of harmless and nonobscene images of minors.