High Court Upholds Broad Child Porn Law

The Supreme Court has upheld a provision of a 2003 federal law making it a crime to promote child pornography — even fake child pornography. Opponents said the law was too broad and could apply to mainstream movies that depict adolescent sex.

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From NPR News, this ALL THINGS CONSIDERED. I'm Michele Norris.

Today, the U.S. Supreme Court upheld Congress's latest attempt to outlaw child pornography, especially on the Internet. The court gave its okay to a provision that makes it a crime to promote or pander either real or fake child pornography.

NPR legal affairs correspondent Nina Totenberg explains.

NINA TOTENBERG: The last time Congress tried to outlaw child pornography, the Supreme Court struck down the law because it was so overbroad the court said it could have been "Romeo and Juliet" as a portrayal of sexual conduct between teenagers. When Congress tried again, it went after not just possession of child pornography but the way it's promoted on the Internet. That provision made it a crime to present or promote material that either is a portrayal of actual children engaged in sexually explicit conduct or purports to be such material. In other words, you face a minimum five-year prison term if you promote real or fake virtual image kiddy porn as the real deal.

An appeals court in Atlanta struck the law down because the court said the stature could be use to punish promotions for mainstream movies like "Lolita" and that it could be applied to someone who's promoting fake virtual kiddy porn, or someone who's just bragging. The lower court also said the law improperly applied to non-commercial transactions. But today the Supreme Court upheld the law and the seven justice majority included both conservatives and liberals, with only Justices Souter and Ginsburg descending.

Writing for the majority, Justice Antonin Scalia said the law is a carefully crafted effort to deal with child pornography on the Net without harming citizens' First Amendment rights. Scalia said a person who knowingly solicits or advertises kiddy porn, whether for money or not, is a legitimate target. Because he's engaging in conduct not protective by the First Amendment. After all, pedophiles may exchange material without seeking money.

Indeed, the defendant in this case offered pictures of men molesting his 4-year-old daughter. Justice Scalia said it doesn't matter whether or not there was a profit motive, and it doesn't matter whether or not a defendant actually has the material he's offering. The mere act of pandering can be criminalized just as a fraudulent sales peach can be criminalized. What's key is that the pandering promotes the material as portraying real children, whether or not in fact it does that.

As for the fears that movie producers could end up being prosecuted, Scalia said that promotions for R and X-rated movies would not be covered by the law since the average person understands that sex scenes in movies either use non-child actors or that the conduct is simulated, not real. That didn't allay the fears of Michael Bamberger, who represents a coalition of mainstream publishing organization.

Mr. MICHAEL BAMBERGER: It really creates enormous problems potentially in the future for other speech which is unpopular.

TOTENBERG: Robin Whitehead of Morality in Media agrees that movie promoters may have to watch there P's and Q's.

Mrs. ROBIN WHITEHEAD (Morality in Media): If you're going to be advertising a movie that is going to be an R-rated or an X-rated movie, you might think twice on what your promotions is going to be.

TOTENBERG: But Melissa Meister(ph), who represents the National Coalition Against Censorship, sees today's opinion as narrowing the reach of the law.

Mrs. MELISSA MEISTER (National Coalition Against Censorship): So I would help that prosecutors across the country look at this opinion, see how narrow (unintelligible) interprets the statute and act accordingly in only going after people who seem to be trading in actual pornography, which is what we really want to get rid of here.

TOTENBERG: Even with that narrowing, said conservative advocate Jay Sekulow, today's ruling still gives a big boost to federal prosecutors.

Mr. JAY SEKULOW (American Center for Law and Justice): What this decision overwhelmingly gives to the Department of Justice today is the ability to go after this online pandering and swapping of child online pornography.

TOTENBERG: Nina Totenberg, NPR News, Washington.

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