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Today we filed an amicus brief on behalf of 18 members of Congress asking the Supreme Court to overturn a lower court decision and uphold the Protect Act of 2003 a measure designed to combat child pornography. 

Congress acted appropriately and constitutionally when it enacted the Protect Act, which has been an important tool in the battle against child pornography.  While the Supreme Court has rejected legislative efforts to combat online pornography in the past, were hopeful the high court will come to the conclusion that this measure protects the most vulnerable of our society our children without violating the First Amendment.

We represented ourselves and 18 members of Congress:  Senator Tom Coburn and Representatives J. Gresham Barrett, Marsha Blackburn, Tom Cole, John Culberson, John Doolittle, Tom Feeney, Luis G. Fortuno, Trent Franks, Virgil H. Goode, Bob Inglis, Sam Johnson, Steve King, Joseph R. Pitts, Lamar Smith, Timothy Walberg, Dave Weldon, and Lynn A. Westmoreland.

At issue is a decision last year by the U.S. Court of Appeals for the Eleventh Circuit that declared a provision of the Protect Act 2003 unconstitutional.  The appeals court concluded that the provision, which makes it a crime to send computer messages offering child porn even when no porn exists, went too far and violated the First Amendment. 

Our amicus brief supports the federal governments assertion that the provision is necessary and represents another critical tool in the ongoing battle to stop trafficking in child porn.  We contend that Congress acted properly when it included this provision in the measure:  Any person who knowingly advertises, promotes, presents, distributes or solicits a visual depiction of a child engaged in sex commits a crime, whether or not the material exists.  We assert that the appeals court erred in holding that the pandering provision of the Protect Act sweeps in noncommercial speech and violates the First Amendment.  This Court has never held that false statements of fact about unlawful activity are protected speech, any more than false advertising in other contexts, the brief argues.  Untrue statements offering or promoting materials as obscene or actual child pornography find no refuge in the First Amendment, and it does not matter whether the speaker is mendacious or deluded about the nature or existence of the materials.

The brief also highlights the fact that the pandering provision bars offers to buy, sell, trade, or sample child pornography, all of which help drive the market for child porn.  The brief contends that even ads offering sexually explicit pictures for free are intended to draw pedophiles in, much like free food samples draw customers into restaurants, or more aptly, free cigarettes entice teenagers to smoke.  The child pornography business is an addiction-driven business that is perpetuated by ensnaring the vulnerable with cost-free introductions.

The Supreme Court is expected to hear oral arguments in the case of U.S. v. Williams (No. 06-694) during its next term which begins in October.