The federal law - adopted by Congress as the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act - expands the description of child pornography in such a way that it has raised First Amendment-violation issues with free-speech advocates and adult-industry professionals.
"[The law] is overbroad, no question," Free Speech Coalition Executive Director Diane Duke told AVN Online. "It is written so vaguely as to encompass not only adult materials and the promotion thereof, but also many mainstream titles such as American Beauty or even Romeo and Juliet. When the government regulates speech on the basis of what it may ‘cause another to believe,' it is clearly overreaching its authority.
"There are far too many cases of actual child
exploitation and abuse. Perhaps our government's resources would be better
spent working the cases that actually exist."
The court is expected to take the case under advisement after oral arguments and issue its opinion before its current term ends in June 2008.
Issues began surfacing when Michael Williams, who was captured in a federal Internet sting in 2004, pled guilty to possessing child pornography and "pandering" (promoting) the images. The conviction carried two five-year prison terms.
Williams appealed, contending that the provision barring the promotion of child pornography was unconstitutional because it could encompass nonexistent or "clean" pictures. The U.S. Court of Appeals for the 11th Circuit agreed in a 2006 decision, ruling that the law violated the First Amendment and calling the language in the PROTECT Act's section on pandering "impermissibly vague and facially unconstitutional."
"This is a difficult perspective from the ASACP's point of view surrounding what is legal and what isn't," said Joan Irvine, executive director of the Association of Sites Advocating Child Protection. "Clearly, people who would distribute, present or solicit material using terminology indicative of child pornography are not a part of the legitimate adult industry. In addition, there's a real distinction between what this case is and commercial child porn."
However, a Los Angeles-based sex-abuse specialist with the FBI told the Desert Morning News that removing the PROTECT Act's section on pandering will shield predators under the umbrella of the First Amendment and allow offenders to freely discuss and embellish what they've done to or dreamed of doing to children.
"That kind of talk encourages other perverts to do the same things," the specialist said.
According to First Amendment attorney Lawrence G. Walters, "the Free Speech Coalition was successful in challenging a similar law at the U.S. Supreme Court several years ago, and this pandering law was passed partially in response to that legal victory."
Walters said this case is a little different.
"Instead of punishing possession or sale of explicit images that ‘appear to be' child porn," he said, "it proscribes any pandering of images that are alleged to be, or promoted as, child porn, even if they are not."
According to Walters, the facts of this case make it a tough decision for the U.S. Supreme Court.
"The defendant is not particularly sympathetic, but the free-speech issues at stake are critical," he said. "Once again, we are considering the constitutionality of a law that prohibits something that ‘appears to be' child pornography, but is not."
Walters said the oral argument he received in the case indicates that the law very well may be upheld.
"The justices pressed the defendant's lawyer to identify concrete examples of how the law is overbroad and thus in violation of the First Amendment," he said. "This he apparently had difficulty doing. Justice [Antonin] Scalia apparently wanted to abolish the over-breadth argument entirely, which would substantially endanger free-speech protection. However, such a radical position does not [yet] have enough support on the high court."
Art Bowker, vice president of the International High Technology Crime Investigation Association, which works closely with the FBI, reportedly has called the Internet a kind of support group for predators.
"Before the advent of the Internet, individuals with deviant tendencies usually were isolated," Bowker said. "Today, however, offenders feel normal because they see, from chat rooms and websites, that many other individuals have the same interests. Thus, the behavior becomes reinforced, perhaps emboldening them to commit acts such as sex with a child in the real world."
According to Los Angeles-based attorney Gary Kaufman, the law can be interpreted in a way that criminalizes speech protected by the First Amendment.
"Child pornography in any form is disgusting and deplorable," he said. "It is and should be illegal. However, this federal statute, while well intentioned, can be interpreted to criminalize constitutionally protected speech. Talking dirty over the Internet or the telephone or promoting legal films or publications could be punished by up to 20 years in a federal prison. The Court of Appeals believes that the statute is both vague and overbroad, and we agree. We anticipate that, despite its conservative makeup, the Supreme Court will affirm the [U.S. Court of Appeals for the] 11th Circuit's opinion."