WASHINGTON, D.C. - The Supreme Court dropped a mini-bombshell today when it announced that it was overturning the Eleventh Circuit's acquittal of Michael Williams on charges of pandering child pornography under the PROTECT Act.
But if there's one thing adult industry members should have learned by now, it's that when it comes to sexually explicit material (among other speech concerns), Supreme Court Justice Antonin Scalia is not to be trusted.
So when Justice Scalia claims that his decision little impacts (if it does at all) Ashcroft v. Free Speech Coalition, wise court watchers will take that with a grain or two of salt.
The 2002 Ashcroft case struck down portions of the Child Pornography Prevention Act which criminalized material depicting adults which "appears to be" or is "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression" of minors involved in the sexually explicit conduct.
The court's rationale was simple: With "virtual child porn," no actual children are involved; hence no children are harmed, and in fact, New York v. Ferber, the seminal child porn case, actually suggested that in cases where, for artistic or scientific purposes, it's necessary to depict children involved in sexual activities, young-looking adults should be used.
The Ashcroft decision didn't sit well with the religio-conservatives in Congress, who promptly passed the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act, which attempted to reverse some of the protections afforded to explicit material under Ashcroft.
Notably, one of the new laws criminalized, "Any person who knowingly ... advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, 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 is, or contains (i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a visual depiction of an actual minor engaging in sexually explicit conduct."
In the case published today, Michael Williams allegedly violated that law when he posted a link to sexually explicit photos of children in an Internet chat-room as a response to an accusation by an FBI agent (posing as a 30-year-old mother with explicit pictures of her daughter) that Williams was a cop - and that occurred only after Williams himself had accused the undercover FBI agent of being a cop in that same chat-room. The situation arose after the agent and Williams had agreed to swap photos of their daughters - 10 years old and 2 years old respectively - having sex with adults.
Eventually, the FBI raided Williams' trailer in Key Largo, Fla. and discovered 22 images of children engaged in explicit conduct - and also that Williams had no daughter, and hence wouldn't have been able to send the agent photos of her, engaged in sex or otherwise.
So Williams was charged with one count each of possessing and pandering child porn, to which he pled guilty but reserved the right to challenge the pandering statute, leading to the case decided today.
In crafting the majority opinion, Scalia deals strictly with the language of the statute, 18 U.S.C. §2252A(a)(3)(B), and dissects the meanings of the terms "advertises, promotes, presents, distributes, or solicits" when applied to purported child porn , and perhaps more importantly with the terms "reflects the belief, or that is intended to cause another to believe, that the material or purported material is" child porn, construing the concept narrowly so as to essentially ignore whether the underlying "material" is actual, verifiable child porn or simply someone's drawing of children engaged in sex acts.
"The Act before us does not prohibit advocacy of child pornography, but only offers to provide or requests to obtain it," Scalia writes. "There is no doubt that this prohibition falls well within constitutional bounds. The constitutional defect we found in the pandering provision at issue in Free Speech Coalition was that it went beyond pandering to prohibit possession of material that could not otherwise be proscribed. In sum, we hold that offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment."
"What needs to be understood about this case is, this is a very, very narrow opinion," assessed First Amendment attorney Reed Lee. "The court said, 'This is a federal statute; we as judges are under a duty to construe it, to interpret it if we reasonably can so that it's valid, and the way that we do that today is by stressing the intent requirement,' and stressing the intent requirement, the court said, eliminates almost all of the potentially unconstitutional applications - not every single one perhaps, but it eliminates so many of them that they can save, for case-by-case adjudication, any remaining unconstitutional applications. So that what today's decision first says is, this statute only criminalizes two things: It criminalizes discussions about the transfer of expression if both parties really think it's child pornography, and situations where one party is trying to fool the other party."
Lee likened the situation, as did Justice Scalia, to one where someone offers to sell an undercover police officer cocaine, though what the seller really has is just baking powder. The seller can still be prosecuted, even though selling baking soda is entirely legal. Essentially, what's actually being prosecuted is the fraudulent attempt to pass off the baking soda as cocaine - or in the instant matter, to pass off young-looking adults, or even morphed photos, as photos of real children engaged in sexually explicit conduct. It doesn't matter whether the photos are of actual children; the crime is the fraud. (Of course, if the photos are of actual children, the seller could be - and Williams was - prosecuted for possession of child porn.)
Another way of looking at it is with regard to the prostitution laws. A person can be arrested for performing a sex act for money, but he or she can also be arrested simply for agreeing to perform a sex act for money.
Noted Lee, "They wrote the law that way so an undercover cop doesn't actually have to have sex with the prostitute in order to bust her; it's the solicitation to have sex that's been made illegal."
"What the Court has said this new provision represents, with its two ways of violating it, is that the government can make talk about transferring contraband illegal, and it can make it illegal without showing that the contraband actually exists," Lee explained. "And really, those propositions don't change the existing law."
Most of the attorneys to whom AVN spoke about this decision agreed that producers of adult videos aren't likely to have a problem with this decision, though some had caveats.
"From reading the majority opinion, I don't think that the use of the word 'teen' alone in a title or in advertising is going to be enough to trigger it," opined First Amendment attorney Roger Wilcox, "but if it is not qualified in some clear manner that shows that the content is actually adult content, you're running a very strong risk of being prosecuted."
"It seems to me that the legal teen sites are going to have to be very careful in the future as we go forward in terms of how they market their content," he added. "If they're trying to create in the mind of their target audience the idea that the images displayed on these sites are either truly minors engaged in sex or else are of minors engaged in obscene activity, even if they aren't really minors, they're subject to the pandering provisions of the statute."
Wilcox thought that a comprehensive 2257 statement featured prominently on the material would help, especially if the statement made it clear that everyone involved in the movie or site content was at least 18 years of age at the time of its production.
But attorney Greg Piccionelli, who deals primarily with Internet-related First Amendment issues, was less sure that the legitimate adult industry would be only peripherally affected.
"I think what is highly instructive for the industry to take from this opinion," Piccionelli warned, "is a line directly from Justice [David] Souter in his dissent: 'No one can seriously assume that after today's decision the Government will go on prosecuting defendants for selling child pornography (requiring a showing that a real child is pictured, under Free Speech Coalition); it will prosecute for merely proposing a pornography transaction manifesting or inducing the belief that a photo is real child pornography, free of any need to demonstrate that any extant underlying photo does show a real child.'"
For Piccionelli, the operative phrase in the law is where something about the advertisement or promotion of the material "reflects the belief" that the material is child porn.
"That could get a lot of people in trouble just because of how subjective a prosecutor may feel that something reflects the belief that the material is child pornography," Piccionelli said. "I feel bad for Disney and Fox News and a lot of other folks out there because they have no clue what is coming at them now, because child pornography can be lascivious exhibition of the pubic area, clothed or unclothed. So whenever there is someone that has depicted a real child in pajamas or in sexy underwear with the intention that it be titillating, which is the way a lot of advertisements are and the way a lot of news reports are to get ratings, those titillating pictures of the pelvic area of a child, even if it's clothed, would constitute child pornography, if what they did reflects the belief that the material contains a lascivious exhibition of the pubic area. So since someone who is promoting children's underwear and does so in a titillating way is going to be exhibiting a belief that that material is a lascivious exhibition of the pubic area clothed, that party would now face potentially 20 years under this statute."
Lee, however, warned against reading too much into Justice Souter's (excellent and thoughtful) dissent.
"It is always dangerous to read a dissent for what the majority opinion holds," he said. "For example, when Justice Scalia's dissent in Lawrence [v. Texas] said, 'This overturns prostitution laws,' we know that didn't happen, and so I advise the same caution here."
But Lee suspects that Justice Scalia was very careful in how he phrased the majority opinion, and although he has some well-known views on the legality of the sale of sexually explicit material, those views aren't expressed here.
"Scalia is on record as saying that those who traffic in even non-obscene sexually explicit material are engaged in the business of pandering, and that that's not constitutionally protected," Lee noted. "He almost backs off on that in this opinion. There's no indication in this opinion - and in fact Justice Stevens' concurrence reminds everybody that he has disputed Scalia's notion of pandering. Scalia was writing for the Court, and I'm sure he wanted to keep the majority. If he'd gone down that road, I'm sure he would have lost his majority. There paragraphs in this opinion that look as if Justice Kennedy could have written them. It is possible that they were written to keep Justice Kennedy on the side that the initial vote was taken."
"The indications are that he had to write this narrowly in order to keep a Court. Overall, that's a good sign compared to what it might have been," Lee concluded.
Once again, Piccionelli had a darker outlook.
"Unfortunately, as we've talked about many times, there is the possibility that in the last year of a dying Republican administration, they're going to depart by sowing the seeds of the next round of battles over the First Amendment," Piccionelli predicted. "Indeed, that's what we see. On a day that there is a protest in front of the Department of Justice, this opinion issues. Coincidence? I doubt it. It just happens to be today that there is a protest to try to motivate the Department of Justice to be more aggressive against the mainstream adult business, and then this comes out, and I remind people to be mindful to Justice Souter's admonition that we ought to be very, very cognizant of the fact that they're not going to be prosecuting child pornography with the authorization they get from this; they're going to be prosecuting offers that are made, and so once again, I say to those people who produce advertisements of kids underwear out there, and Disney, you better watch out."