Supreme Court upholds law against promoting child porn

WASHINGTON - The Supreme Court gave prosecutors a powerful tool yesterday to attack the spread of child pornography online, ruling that people who send messages over the computer offering or seeking sexual images of children can be sent to prison, even when no such pornography exists.

The 7-2 ruling in U.S. v. Williams, which upheld a five-year-old law, rejected the claim that such messages are protected as free speech.

"This will be a big help," said Patrick Trueman, who led the Justice Department's antiobscenity unit during the Reagan and George H.W. Bush administrations. "You don't have to prove the underlying material is illegal. The criminal offense is the speech that offers to sell or trade in illegal material."

Yesterday's ruling goes a long way toward overturning the effect of a 2002 decision that shielded computer-generated pornography. The justices said then that because no real children were involved in producing these images, this material deserved protection as a form of free speech.

Prosecutors then faced a practical problem. How could they prove that realistic images of child sex scenes involved actual children? Defendants could assert they were "virtual" pornography.

In response, Congress passed a law in 2003 making it a crime to exchange online messages about "any material or purported material" that would cause "another to believe" it depicts a minor engaged in sex, whether "actual or simulated." Violations call for at least five years and as many as 20 years in prison.

Two years ago, the Atlanta-based U.S. Court of Appeals for the 11th Circuit ruled the law unconstitutional for being overly broad. It could apply, in theory, to a grandfather who sends an e-mail titled "Good pics of kids in bed" to describe a photo of sleeping toddlers, the appellate judges said. Other critics said the law could ensnare people who tout a Hollywood movie with simulated sex scenes.

The Supreme Court yesterday dismissed those objections as "fanciful hypotheticals."

"Child pornography harms and debases the most defenseless of our citizens," Justice Antonin Scalia wrote for the court. "We hold that offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment."

He knocked down each of the objections to the new law.

No prosecutor or jury would believe that a grandfather was offering children engaged in "sexually explicit conduct" when he sends an e-mail describing "kids in bed," Scalia said. "The statute has no application . . . where the material at issue is a harmless picture of a child in a bathtub," he added.

People who advertise or sell movies are not in danger either. "We think it is implausible that a reputable distributor of Hollywood movies . . . believes that one of these films contains actual children engaging in actual or simulated sex on camera," he said.

Justices David H. Souter and Ruth Bader Ginsburg dissented, questioning the court's retreat from the ruling that protected "fake" child porn from prosecution.

The Justice Department brought 1,209 child-porn cases in 2006, and in 95 percent, the defendant pleaded guilty, Souter noted. "Without some demonstration that juries have been rendering exploitation of children unpunishable," he wrote, "there is no excuse for cutting back on the First Amendment."

Yesterday's ruling restores the conviction of Michael Williams, a Florida man who told an FBI agent online that he had photos of his 4-year-old daughter engaged in sex. Agents raided his home and found child porn on his computer, though not the photos of his daughter that he described. He pleaded guilty to child pornography charges but challenged the so-called pandering provision of the law as unconstitutional.

Justices yesterday also:

SOURCE: Associated PressEndText

Read the justices' opinions in the child-pornography case at http://go.philly.com/childEndText