PROTECT Act Upheld; Questions on Protected Speech Arise

The Core Dilemma

Congress' core dilemma can be summarized by contrasting two seemingly identical images. At first glance, both appear to represent children in compromising sexual positions. The first image is indeed, bona fide child pornography. The second, however, is a still from a recent French film ' an adaptation of 'Romeo and Juliet,' in fact. Neither actor in the scheme is underage. Yet, in line with Shakespeare's indication that Juliet be 13, both appear to be under the age of consent.

The latter speech falls comfortably within the First Amendment's canopy. The first, however, does not. The Supreme Court has said that certain types of speech fall categorically beyond First Amendment protection. Obscenity, which means certain kinds of sexually explicit speech, is one such category. Actual child pornography ' whether or not it is 'obscene' in the sense of having sexual content ' also falls absolutely outside the First Amendment's bailiwick. Even if the first photo is not obscene, therefore, it can be banned. Furthermore ' and here child pornography diverges from common or garden-variety obscenity ' mere possession at home of child pornography can be criminalized under a 1990 Supreme Court case.

When these principles were first established ' the landmark case, New York
v. Ferber, was handed down in 1982 ' there was no Internet. Sifting actual from virtual child pornography was simple. The Court could comfortably consign child porn to First Amendment limbo because any such material was prima facie evidence of a terrible evil ' the production of child pornography.

The Internet, along with computerized visual manipulation technology, dramatically sharpens the problem of distinguishing child porn from protected speech. In the interconnected fabric of the Internet, it is no longer necessarily easy to discern real images from the artificial. Further, the provenance of images may be often obscured in ways that make it hard to determine how in fact an image was generated.

At the same time, the Internet creates a new discursive space for people to live out fantasies. On occasion, such fantasies may be harmless and inoffensive ' a substitute for actually harmful behavior. But at other times, the Internet allows for connections, for the sharing of information and ideas, and for new social networks, that together enable new forms of harmful conduct.

New telecommunications networks, in short, present child pornography's opponents with an apparently new set of problems. And Congress' effort to craft dramatic new solutions have fallen afoul of the First Amendment ' until May 19.

Congress' first effort in this field, the Communications Decency Act of 1996 ('CDA'), was struck down in 1997 by the Supreme Court in Reno v. ACLU. Its second effort, the Child Online Protection Act ('COPA'), met the same fate in the 2002 case of Ashcroft v. Free Speech Coalition. COPA targeted not only actual child pornography, but also material that 'appear[ed] to be' or that 'convey[ed] the impression' of being child pornography.

In so doing, Congress was trying to get around the problem of sifting the two images described above by allowing both to be prosecuted. In a soaring hymn to Free Speech, Justice Anthony Kennedy's majority opinion found the statute invalid as overbroad. Intriguingly, a fifth vote came from Justice Clarence Thomas, who signaled out the risk that future 'technological advances' might make prosecution 'impossible,' such that Congress could regulate speech more aggressively.

The PROTECT Act

Despite the absence of documented technological change of the kind Justice Thomas alluded to, the Court this term upheld the third federal legislative effort to regulate child pornography ' the PROTECT Act (abbreviated by Justice Antonin Scalia as 'the Act' in a military opinion).

In the key provision, the Act prohibits not only the possession or transmission of 'an obscene visual depiction of a minor engaging in sexually explicit conduct,' but also advertisement, distribution, and solicitations that reflect the belief, or that are intended to cause another to believe, that such material is in play.

This language means that the statute applies not only when actual child pornography is being distributed. It applies also when a person believes falsely he or she is dealing with child pornography, or is attempting fraudulently to persuade someone else that some material is child pornography. The statute, in other words, encompasses not only actual child pornography but also the handling of material that someone mistakenly believes to be child pornography.

In one respect, this is no departure from settled law. Under familiar criminal principle, a mistake about the facts is no defense. But the First Amendment seems to require a different rule: If you are handling material you believe to be child pornography, but that is actually protected by the First Amendment, why should your mistake strip you of First Amendment protection?

'Mistake' v. First Amendment

In United States v. Williams, the Supreme Court held that the mistake doctrine trumps the First Amendment. Williams involved what is called a facial attack against the Act, i.e., an argument that the statute was per se invalid. Unlike Reno and Ashcroft, the facial challenge in Williams came not from an industry or civil liberties organization, but from a defendant who in fact had been trading in child pornography (who in fact posted images of other men molesting his own four-year-old daughter). The First Amendment, unusual among constitutional entitlements, allows those who have not engaged in protected speech to argue that the statute under which they are being punished is unconstitutional because it sweeps in too much protected speech. But that hardly yields sympathetic defendants.

Justice Scalia, in an opinion for six other members for the first time, held that the criminal law rule of mistake trumped the First Amendment. After narrowing the breadth of the statute, Justice Scalia relied on the traditional rule about mistakes in the criminal law and the principle that offers to engage in illegal transactions are also excluded from First Amendment shelter. The result is that free speech protection, at least in the area of child pornography, no longer rests on whether speech is actually protected: It hinges on whether the defendant believes it is unprotected (but still knowingly traffics in such material).

The effect of Williams on protected speech that comes close to the First Amendment line will depend on how stringently trial courts enforce the intent requirements of the statute. Much will now rest on how the prosecution shows that the defendant knew, and intended to transmit, child pornography. If courts hold prosecutors to a low evidentiary threshold, and allow juries to make broad inferences, much protected speech could be swept in or chilled.

Two intriguing strands of Williams merit emphasis because both bite on the future development of free speech doctrine.

First, the Act targeted not merely the production and consumption of the prohibited materials themselves, but also the network of individuals who support that production and consumption. Justice Scalia endorsed the goal of ending the 'child-pornography distribution network.' In line with the fuzzy edges of the statute, this goal means that it is not merely the possessors of illicit material, but their networks that might be targeted. Whether this might shade in the future toward guilt by association remains to be seen.

Second, Williams, which focuses on the defendant's view of the world rather than the facts, is in tension with other First Amendment doctrines that depend on the facts in the world. Most critically, the famous Brandenburg doctrine, which shields political speech, applies only where there is in fact a risk that the relevant speech will provoke violence. As Justice David Souter emphasized in dissent, when government gets into the business of criminalizing speech based on what it thinks people believe, First Amendment freedoms may well be at risk.

Conclusion

Williams is part of a pattern of cases in which the Court this term has divided in surprising ways. What remains to be seen is how widely its repercussions will be felt.

Cases and Statutes Mentioned in This Article

PROTECT ACT: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi? dbname=108_cong_bills&docid=f:s151enr.txt.pdf

United States v. Williams: www.supremecourtus.gov/opinions/07pdf/ 06-694.pdf

New York v. Ferber: http://supreme.justia.com/us/458/747/case.html

Reno v. ACLU: http://supreme.justia.com/us/521/844/case.html

Ashcroft v. Free Speech Coalition: http://supreme.justia.com/us/535/234/case.html

The problem of child pornography on the Internet has long bedeviled Congress. But the legislature has floundered between the First Amendment's protection of speech and the self-evident evils involved in child porn's production and consumption, leaving a trail of laws invalidated by the High Court.

The most recent legislative iteration ' the PROTECT Act, upheld on May 19 by the Supreme Court in United States v. Williams ' raises new and intriguing questions about the relation of sexual and political speech.

No one gainsays Congress' interest in staunching the flow of child pornography. But regulation of Internet pornography often impinges on different kinds of constitutionally protected speech.

The Core Dilemma

Congress' core dilemma can be summarized by contrasting two seemingly identical images. At first glance, both appear to represent children in compromising sexual positions. The first image is indeed, bona fide child pornography. The second, however, is a still from a recent French film ' an adaptation of 'Romeo and Juliet,' in fact. Neither actor in the scheme is underage. Yet, in line with Shakespeare's indication that Juliet be 13, both appear to be under the age of consent.

The latter speech falls comfortably within the First Amendment's canopy. The first, however, does not. The Supreme Court has said that certain types of speech fall categorically beyond First Amendment protection. Obscenity, which means certain kinds of sexually explicit speech, is one such category. Actual child pornography ' whether or not it is 'obscene' in the sense of having sexual content ' also falls absolutely outside the First Amendment's bailiwick. Even if the first photo is not obscene, therefore, it can be banned. Furthermore ' and here child pornography diverges from common or garden-variety obscenity ' mere possession at home of child pornography can be criminalized under a 1990 Supreme Court case.

When these principles were first established ' the landmark case, New York
v. Ferber, was handed down in 1982 ' there was no Internet. Sifting actual from virtual child pornography was simple. The Court could comfortably consign child porn to First Amendment limbo because any such material was prima facie evidence of a terrible evil ' the production of child pornography.

The Internet, along with computerized visual manipulation technology, dramatically sharpens the problem of distinguishing child porn from protected speech. In the interconnected fabric of the Internet, it is no longer necessarily easy to discern real images from the artificial. Further, the provenance of images may be often obscured in ways that make it hard to determine how in fact an image was generated.

At the same time, the Internet creates a new discursive space for people to live out fantasies. On occasion, such fantasies may be harmless and inoffensive ' a substitute for actually harmful behavior. But at other times, the Internet allows for connections, for the sharing of information and ideas, and for new social networks, that together enable new forms of harmful conduct.

New telecommunications networks, in short, present child pornography's opponents with an apparently new set of problems. And Congress' effort to craft dramatic new solutions have fallen afoul of the First Amendment ' until May 19.

Congress' first effort in this field, the Communications Decency Act of 1996 ('CDA'), was struck down in 1997 by the Supreme Court in Reno v. ACLU. Its second effort, the Child Online Protection Act ('COPA'), met the same fate in the 2002 case of Ashcroft v. Free Speech Coalition. COPA targeted not only actual child pornography, but also material that 'appear[ed] to be' or that 'convey[ed] the impression' of being child pornography.

In so doing, Congress was trying to get around the problem of sifting the two images described above by allowing both to be prosecuted. In a soaring hymn to Free Speech, Justice Anthony Kennedy's majority opinion found the statute invalid as overbroad. Intriguingly, a fifth vote came from Justice Clarence Thomas, who signaled out the risk that future 'technological advances' might make prosecution 'impossible,' such that Congress could regulate speech more aggressively.

The PROTECT Act

Despite the absence of documented technological change of the kind Justice Thomas alluded to, the Court this term upheld the third federal legislative effort to regulate child pornography ' the PROTECT Act (abbreviated by Justice Antonin Scalia as 'the Act' in a military opinion).

In the key provision, the Act prohibits not only the possession or transmission of 'an obscene visual depiction of a minor engaging in sexually explicit conduct,' but also advertisement, distribution, and solicitations that reflect the belief, or that are intended to cause another to believe, that such material is in play.

This language means that the statute applies not only when actual child pornography is being distributed. It applies also when a person believes falsely he or she is dealing with child pornography, or is attempting fraudulently to persuade someone else that some material is child pornography. The statute, in other words, encompasses not only actual child pornography but also the handling of material that someone mistakenly believes to be child pornography.

In one respect, this is no departure from settled law. Under familiar criminal principle, a mistake about the facts is no defense. But the First Amendment seems to require a different rule: If you are handling material you believe to be child pornography, but that is actually protected by the First Amendment, why should your mistake strip you of First Amendment protection?

'Mistake' v. First Amendment

In United States v. Williams, the Supreme Court held that the mistake doctrine trumps the First Amendment. Williams involved what is called a facial attack against the Act, i.e., an argument that the statute was per se invalid. Unlike Reno and Ashcroft, the facial challenge in Williams came not from an industry or civil liberties organization, but from a defendant who in fact had been trading in child pornography (who in fact posted images of other men molesting his own four-year-old daughter). The First Amendment, unusual among constitutional entitlements, allows those who have not engaged in protected speech to argue that the statute under which they are being punished is unconstitutional because it sweeps in too much protected speech. But that hardly yields sympathetic defendants.

Justice Scalia, in an opinion for six other members for the first time, held that the criminal law rule of mistake trumped the First Amendment. After narrowing the breadth of the statute, Justice Scalia relied on the traditional rule about mistakes in the criminal law and the principle that offers to engage in illegal transactions are also excluded from First Amendment shelter. The result is that free speech protection, at least in the area of child pornography, no longer rests on whether speech is actually protected: It hinges on whether the defendant believes it is unprotected (but still knowingly traffics in such material).

The effect of Williams on protected speech that comes close to the First Amendment line will depend on how stringently trial courts enforce the intent requirements of the statute. Much will now rest on how the prosecution shows that the defendant knew, and intended to transmit, child pornography. If courts hold prosecutors to a low evidentiary threshold, and allow juries to make broad inferences, much protected speech could be swept in or chilled.

Two intriguing strands of Williams merit emphasis because both bite on the future development of free speech doctrine.

First, the Act targeted not merely the production and consumption of the prohibited materials themselves, but also the network of individuals who support that production and consumption. Justice Scalia endorsed the goal of ending the 'child-pornography distribution network.' In line with the fuzzy edges of the statute, this goal means that it is not merely the possessors of illicit material, but their networks that might be targeted. Whether this might shade in the future toward guilt by association remains to be seen.

Second, Williams, which focuses on the defendant's view of the world rather than the facts, is in tension with other First Amendment doctrines that depend on the facts in the world. Most critically, the famous Brandenburg doctrine, which shields political speech, applies only where there is in fact a risk that the relevant speech will provoke violence. As Justice David Souter emphasized in dissent, when government gets into the business of criminalizing speech based on what it thinks people believe, First Amendment freedoms may well be at risk.

Conclusion

Williams is part of a pattern of cases in which the Court this term has divided in surprising ways. What remains to be seen is how widely its repercussions will be felt.

Cases and Statutes Mentioned in This Article

PROTECT ACT: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi? dbname=108_cong_bills&docid=f:s151enr.txt.pdf

United States v. Williams: www.supremecourtus.gov/opinions/07pdf/ 06-694.pdf

New York v. Ferber: http://supreme.justia.com/us/458/747/case.html

Reno v. ACLU: http://supreme.justia.com/us/521/844/case.html

Ashcroft v. Free Speech Coalition: http://supreme.justia.com/us/535/234/case.html