Child Porn ‘Pandering’ Provision Bans Protected Speech, Court Says
Congress erred in passing a child porn law banning promotion, or “pandering,” of content that doesn’t depict actual children or that depicts children nonsexually because it is constitutionally protected speech, the U.S. Appeals Court, Atlanta, ruled last week in U.S. v. Williams. The case involved a man convicted of possession and promotion of child pornography over the Internet. The appeals court panel overturned a U.S. Dist. Court, Miami, conviction of Michael Williams on the pandering charge but upheld his 5-year sentence for possessing “real” child porn.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
The law in question, 2003’s Protect Act, continued a pattern going back 20 years, and starting with 1984’s Child Protection Act, of defining child porn to include “sexually suggestive pictures of children.” The 1996 Child Pornography Prevention Act expanded the 1984 law’s reach to cover material that “appears to be” minors engaged in sexual conduct, or that is promoted in a way that “conveys the impression” that it’s child porn. The Supreme Court struck down both provisions in 2002’s Ashcroft v. Free Speech Coalition.
Congress retorted by moving the pandering provision from the definitions portion to a standalone section in the Protect Act targeting pandering, not the underlying material. That eased some concerns, the appeals court said, by exempting “individuals farther down the distribution chain” from prosecution for possessing images that aren’t real child porn. But Congress also said technological advancements made it easier to “disguise depictions of real children… to make them unidentifiable” or appear computer-generated, and therefore banned images that are “indistinguishable” from real child porn -- content sometimes called “synthetic.”
The govt. can ban commercial speech that’s false, but that presupposes a substantial harm, the court said: “Here… the only person who is harmed by misleading speech, even if it preys on the basest of motives, is the would-be buyer of illegal child pornography, and that individual is scarcely in a position to complain” of being duped by synthetic child porn. Prosecution for false advertising would bring sanctions disproportionately against someone selling Snow White or something equally innocuous merely for claiming it features sexually explicit content involving minors, the court added. The pandering provision likely would hold up under a false advertising rationale, were it to deal only with commercial speech -- but the law “continues to sweep in noncommercial speech,” the court said.
The Protect Act falls short in 3 places on pandering, the court said: (1) The requirement that material need only be “purported” to be child porn “means that promotional… speech is criminalized even when the touted materials are clean or nonexistent.” The court cited Sen. Leahy’s (D-Vt.) view, expressed in 2003 debate on the bill, that the law would ban “talking dirty over the Internet.” (2) It criminalizes speech that doesn’t reach the “fighting word” test for incitement, but is merely “advocating or encouraging approval of otherwise illegal activity.” (3) Lack of definition of “lascivious": “What exactly constitutes a forbidden ‘lascivious exhibition of the genitals or pubic area’ and how that differs from an innocuous photograph of a naked child… is not concrete,” the court said. “Virtually all depictions of children, whom to pedophiles are highly eroticized sexual objects, are likely to draw a deviant response” from a pedophile, but “we may not outlaw the thoughts conjured up by those legal materials.”
The court rejected prosecutors’ invocation of a 1966 Supreme Court ruling as precedent on the pandering provision’s constitutionality. In Ginzburg v. U.S., material that wasn’t “hard core” porn was deemed obscene due to the manner in which it was advertised and delivered. But a 1976 decision in Virginia Pharmacy v. Virginia Citizens undermined some Ginzburg holdings on commercial speech, leading 4 dissenting justices in a subsequent case to abandon Ginzburg as precedent. More recently, Justice John Stevens has called the ban on “titillating marketing” for legal material “anachronistic,” the appeals court said.
Ultimately the govt. “asks us to stretch the [Ginzburg] rationale much farther, to support pandering as an independent crime rather than only as evidence of the crime of obscenity or child pornography,” the court said. The govt. also didn’t offer evidence to support its contention that a pandering ban will reduce the market for “real” child pornography, the court said. The govt. claim that the pandering provision is needed to “punish true child pornographers who for some technical reasons are beyond the reach” of regular child porn statutes attempts an end-run around the criminal procedure process by outlawing “legal child erotica,” the court said.
The court agreed with Williams that the law is too vague to be valid, giving no indication what “a manner that reflects the belief, or that is intended to cause another to believe” means in practice. The statute gives law enforcement too much leeway, the court said: “Individual officers are thus endowed with incredibly broad discretion to define whether a given utterance or writing contravenes the law’s mandates.” Under the law, the court said, an intercepted e-mail titled “little Janie in the bath -- hubba hubba!” with attached photographs could be deemed perverse toward children without regard to the photos’ content. Not only a “proud and computer-savvy grandparent” but a “chronic forwarder of cute photos with racy tongue-in-cheek subject lines” could land in trouble for an e-mail titled “Good pics of kids in bed” with attached photos of “toddlers in footie pajamas, sound asleep,” the court said.