Watch What You Imagine

By Wendy Kaminer

        Alberto Gonzales left office patting himself on the back for his work combating online child porn, a Bush Administration priority.  Congress has enthusiastically targeted child porn too, even when it’s only imaginary, but ran into resistance from the Supreme Court.  This term, however, in U.S. v Williams, the Court is once again considering the right to discuss, or pretend to discuss, child pornography.
        The story of this case begins with a 1996 law prohibiting virtual child porn, criminalizing computer images that falsely appeared to show children having sex.  The 1996 Child Pornography Prevention Act also prohibited falsely describing sexually implicit images “in such a manner that conveys the impression” that the images depict actual children. 

        Congress proudly passed the CPPA despite the lack of evidence linking virtual porn to actual crimes against children.  Free speech advocates pointed out that the virtual child porn ban was a thought crime, enabling the imprisonment of people who created, possessed or discussed non-obscene images of imaginary children having imaginary sex.  The Supreme Court agreed (by a 6 to 3 vote) and in Free Speech Coalition v Ashcroft, struck down the ban on virtual porn.  The First Amendment does not protect your right to possess or otherwise traffic in actual child pornography, but it does protect your right to think about it.  In his majority opinion, Justice Kennedy observed:  “The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”

        Undeterred, Congress passed the PROTECT Act in 2003; it includes a provision similar to the earlier ban on speech falsely “convey(ing) the impression” of child porn.  The PROTECT Act prohibits “knowingly ... advertis(ing), promot(ing) … or solicit(ing) …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 contains” child porn. 

        The meaning of this provision is not exactly clear.  What is “purported material?”  Who decides if material or “purported material” is described in a way designed to give the false impression that the material is child porn?   The 11th Circuit Court of Appeals found this language “vague and standardless,” providing people with no notice of precisely what speech might land them in jail, while granting individual law enforcement agents “incredibly broad discretion to define whether a given utterance or writing contravenes the law’s mandates.”  In other words, the PROTECT Act not only exposed people to prosecution for pretending to talk about child porn; it exposed people to prosecution when law enforcement agents believed they were pretending to talk about child porn.  Pursuant to this provision, innocent people could be indicted for pandering child pornography because a federal prosecutor had a dirty mind. 

        So in U.S v Williams, the 11th Circuit struck down the pretend pandering provision of the PROTECT Act.  The government appealed to the Supreme Court, which heard arguments in the case last month; according to legal commentators the Court seems poised to reverse the appeals court and uphold the law. 

        The Justices’s apparent inclination to uphold poorly drafted prohibitions on falsely advertising or pandering pornography may partly reflect the facts of the case before it.  Michael Williams was convicted of possessing and pandering actual child porn.  He received concurrent 5 year sentences on both charges and is not appealing his conviction for possession (so his sentence will be unaffected by the Court’s decision in this case.)  Williams is, however, appealing his pandering conviction, arguing that the false pandering law under which he was convicted is unconstitutionally broad and could ensnare innocent people. 

        The Court has traditionally heard challenges to overly broad laws brought by people who could have been constitutionally prosecuted under narrowly drafted laws; the conviction of a guilty person pursuant to an unconstitutional law does not make the law any less of a threat to the innocent.   But the fact that Williams was not a victim of the vague, overly broad language of which he complains naturally makes it easier to rule against him, regardless of the law.

    Still, while an innocent man is not at risk of imprisonment in this case, innocent people will be at risk if the Court rejects Williams’s challenge to the false pandering prohibition.   Free speech is at risk too, partly because the Court is reported to be considering whether to limit the “overbreadth” doctrine that allows unsavory people like Michael Williams to challenge laws that might be unconstitutionally applied to innocent people by unsavory prosecutors. 
        As the National Coalition Against Censorship and the First Amendment Project stressed in their amicus brief in Williams, the pandering provision, if upheld, would dangerously expand government power “to penalize and chill speech based on its content” and “present widespread opportunity for abuse by local law enforcement officials.  The risk, demonstrated time and again, is that police officers and prosecutors, in their zeal to combat real child abuse, will charge innocent people with child pornography, solely on the basis of their ideas, fantasies, speech or expression.”
        Important First Amendment principles are at stake in U.S v Williams, as this brief stresses, and civil libertarians should be grateful that free speech advocates were not afraid to support a challenge to an unconstitutional law, simply because it was initiated by a convicted child pornographer (who, as I’ve noted, will not escape prison if the 11th Circuit decision striking down portions of the PROTECT Act are upheld.) 

        But the nation’s most prominent free speech organization (or most prominent, putative free speech organization,) the ACLU, did not speak up in this case, declining to file its own brief or to join in the brief filed by the smaller, scrappier National Coalition Against Censorship and the First Amendment Project.  Whether the ACLU’s silence reflected inattention to the case or concern about offending donors, it’s another sad testament to the organization’s declining commitment to defending civil liberty, especially at a cost.   Even if free speech prevails here and the Supreme Court unexpectedly upholds the 11th Circuit's decision in Williams, civil libertarians should not sleep easier knowing that a federal appeals court was less skittish about deterring abusive prosecutions and defending First Amendment freedoms than the ACLU.

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