On May 19, the United States Supreme Court issued its opinion in United States v. Michael Williams, a case involving the government’s efforts to suppress child pornography. The Defendant in the case had indeed possessed and disseminated child pornography, and he was convicted of that offense and sentenced to five year’s imprisonment. The actual child pornography conviction and sentence were not at issue before the Supreme Court. Everyone agreed that they were proper.But Michael Williams had also been convicted of saying that he had child pornography to trade. And the specific statute under which he was convicted for that allows a conviction even if no actual child pornography is involved at all.

In 2002, the Supreme Court upheld the Free Speech Coalition’s challenge to a federal law that would have criminalized material which is not, in fact, child pornography merely because someone in the distribution chain said that it was. In other words, pandering could, under the law which FSC challenged, turn constitutionally protected adult pornography into unprotected expression just because someone somewhere along the line said that it child pornography. In 2002, the Supreme Court ruled that this older federal law was unconstitutional, and there is no indication from yesterday’s decision that it would decide that question any differently today.

But in response to the 2002 decision in
Ashcroft v. Free Speech Coalition,
Congress rewrote a new version of the invalidated law. Instead of outlawing expression which had been pandered as child pornography, Congress directly outlawed the pandering itself. That is, the current law makes it illegal to request child pornography and illegal to offer it, whether or not the parties discussing it have any actual child pornography at all.

As Congress rewrote the law, it left open very serious questions of interpretation. The law, as written, could have applied to discussions of, for instance, Hollywood movies which depict sex between youth under 18 years of age. Under interpretations like that, the new law was both dangerous and unconstitutional. For this reason, FSC, along with the First Amendment Lawyers Association, filed a friend of the Court brief in the case addressing the problematic interpretations. Lou Sirkin principally authored that brief.

Both the majority opinion and the dissent in Monday’s case cited the FSC/FALA friend of the court brief. Most importantly, the majority opinion interpreted the new law very narrowly so as to avoid the constitutional problems which the brief had presented. In that way, the Court recognized and responded to the problems we had raised.

The Supreme Court has reiterated that child pornography — that is, sexual expression which depicts actual children — is both constitutionally unprotected and seriously illegal. It has also indicated its continuing position that sexually explicit expression which does not depict actual children remains constitutionally protected unless in is legally obscene.

But the Court also made clear yesterday, that Congress has made it a valid crime to ask for child pornography on the Internet, over the telephone, through the mail, and likewise. It is also a valid crime to offer child pornography whether or not the offeror really has any to give.

Thus, those who do not deal in actual child pornography and do not say that they do, have little to fear from yesterday’s decision. Those who hope to make a sale of adult pornography by convincing a buyer that it might be illegal child pornography should have stopped doing that decades ago. They can now expect to go to jail if they continue.

None of the opinions in yesterday’s case address what to us is an obvious issue (because it is so common): does the mere use of the word “teen” in promotion of sexually explicit material run afoul of the new and valid pandering provision?
It would have been better if the Court expressly said that it does not. But that is not in yesterday’s opinion. Those concerned about the issue should carefully consult with their own counsel. If a case arises where the use of “teen” or a similarly ambiguous word, is the sole basis for a pandering charge, FSC believes that any conviction would raise very serious constitutional problems.

So if the Justice Department properly confines prosecutions under the new pandering law, it should pose little problem for those who stay as far as they can away from child pornography. But FSC will keep watch against any remaining possibility of abuse of this new law because eternal vigilance is the price of liberty.