ChristianPost.com - High Court Reviews Constitutionality of Child Pornography Law

October 31, 2007
Katherine T. Phan , Christian Post Reporter

The U.S. Supreme Court heard arguments Tuesday over the constitutionality of a law crafted to target the peddling of child pornography.

The central issue is whether language in the 2003 PROTECT Act, which sets a five-year mandatory prison term for promoting child porn, could be interpreted to limit free speech rights such as creative expression on mainstream literature or movies depicting adolescent sex.

Challengers to the law, including the National Coalition Against Censorship and the American Booksellers Foundation for Free Expression, have rallied around Michael Williams, a Florida man who was convicted for possession of child pornography in 2004.

They agree with the 11th U.S. Circuit Court of Appeals decision which struck down the provision, saying the wording in the law is too broad that people could be arrested for lying about having child pornography or possessing pictures that others consider child pornography.

"This statute, in short, punishes thought, beliefs, expressions and opinions," argued Williams attorney, Richard Diaz.

It captures protected speech about materials that may not even, in fact, exist, he added.

But High Court Justice Antonin Scalia sounded unconvinced by his argument, stating, "Pandering is pandering."

Diaz was also unable to satisfy questions posed by Justice Ruth Bader Ginsburg who asked for a real life example regarding needless prosecutions.

Justices Anthony Kennedy and John Paul Stevens, meanwhile, speculated whether the law would apply to the promotion of documentaries on actual atrocities.

U.S. Solicitor General Paul Clement, the Bush administration's top Supreme Court lawyer, argued that the law is constitutional and assured justices that it meant to apply to people peddling child pornography.

It would not apply to individuals like movie critics from writing about scenes involving adolescent sex in legitimate films like "Lolita," "Traffic" and "American Beauty, Clement said.

"If you're taking a movieand you're simply truthfully promoting it, you have nothing to worry about with this statute," he added.

Clement urged the court to uphold the constitutionality of the law and consider challenges on a case-by-case basis.

He asked the court to make a decision based on the soundness of the law, adding "it's not just enough for you to envision a couple of hypotheticals" to declare it unconstitutional.

In 2002, the court declared a 1996 child pornography law too broad and an infringement on First Amendment rights. Congress responded to the courts ruling by including revised provisions under the 2003 PROTECT Act.

Jay Sekulow, chief counsel of the conservative legal group American Center for Law and Justice, has filed a brief in the case on behalf of 18 members of Congress.

The Protect Act does not violate the First Amendment but does provide a measured and constitutional response to an ever-growing problem, said Sekulow in a statement released on Tuesday before the hearing.

Mario Diaz, Concerned Women for Americas (CWA) Policy Director for Legal Issues, also defended the law intended to protect children, arguing that its language would not interfere with constitutional rights.

"This law requires a specific intent on the part of the individual, said Diaz. It requires that he knowingly distribute or solicit illegal child pornography, or for him to cause another to believe the material is illegal child pornography, material that is clearly not protected speech under the First Amendment.

CWA is also among a list of conservative groups supporting the White Ribbons Against Pornography week, which runs Oct. 28-Nov.4.

We hope that in looking at this case, the Justices keep in mind who is it that we are really trying to protect: the victims, not the criminals, said CWA President Wendy Wright.

The Supreme Court is expected to issue a decision in the spring.