Squaring the Culture

The US Supreme Court yesterday upheld a federal statute designed to quell child pornography on the Internet, rejecting a challenge that the law was overly broad and vague. Deciding the case of US v Williams, Justice Anton Scalia wrote the majority opinion, while Justice Stephens filed a concurring opinion annoyingly touting legislative intent, and Justices Souter and Ginsberg filed a single, dissenting opinion.

The Child Pornography Prevention Act (CPPA), passed back in 1996, attempted to criminalize some forms of pornography that did not involve children (they used young-looking adults), sometimes did not use actual photographs (they used computer-generated images), or in some cases did not involve actual sexual activity (e.g., film portrayals, like Dakota Fanning in Hounddog, where we all know she’s not really being raped.) Personally, I would not have had any trouble with that, but the Court found the CPPA overbroad in Ashcroft v. Free Speech Coalition back in 2002, and struck down the law.

Congress responded with a careful and interesting rewrite. The new law, cutely named the “Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003″ (PROTECT), instead of attempting to outlaw specific forms of pornography (other laws do that), outlaws attempting to obtain or distribute anything that’s described as child porn. Short version: it doesn’t outlaw making child porn, it outlaws trying to get it, or trying to give it away. If you ask for child porn or you offer it, for sale or for free, even if you don’t have any and never get any, you’ve violated the law.

This turns out to be a pretty effective way to skin the cat. Pornography laws need to be carefully drawn. You don’t want to outlaw the grandparents handing out pictures of their grandkids in the bathtub (although I know some adults who wish they could outlaw some of the pictures their parents took). You also don’t want to outlaw advocacy of changes in the laws. Some would add that you don’t want to outlaw feature films with redeeming art value that just happen to show people doing things they’re not supposed to do (although this is a debatable point.) PROTECT manages to avoid all this. Feature films are off the hook because they never represent themselves as real, grandma is off the hook because she never represents the photos as porn, and advocates are off the hook because they don’t try to get or give away photos. However, the perv in the chat room may only have a pic of the kids in the bathtub, but simply representing it as kiddie porn breaks the law.

In order to defend this construction, Justice Scalia made it clear that the first Amendment does not protect solicitation of a crime, nor an offer to commit a crime. This is not exactly new, but it’s pretty sensible, and I don’t think it’s been spelled out this clearly before. Law Prof Eugene Volokh does a nice job explaining.

Meanwhile. Scalia continues to make legal opinions entertaining. Here’s his take on the Eleventh Circuit’s claim that the law was overbroad because it allowed the arrest of somebody who was doing nothing but bragging about what he had:

The Eleventh Circuit believed it a constitutional difficulty that no child pornography need exist to trigger the statute. In its view, the fact that the statute could punish a “braggart, exaggerator, or outright liar” rendered it unconstitutional. 444 F. 3d, at 1298. That seems to us a strange constitutional calculus. Although we have held that the government can ban both fraudulent offers, … and offers to provide illegal products, the Eleventh Circuit would forbid the government from punishing fraudulent offers to provide illegal products. We see no logic in that position; if anything, such statements are doubly excluded from the First Amendment.

Bravo, Scalia. And bravo, Congress. Nice job.