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This is ALL THINGS CONSIDERED from NPR News. I'm Robert Siegel.
Today, the U.S. Supreme Court examined yet another congressional attempt to curb child pornography. The law is called the Protect Act. It deals with sexually explicit images of real or virtual children on the Internet.
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: The last time Congress tried to outlaw child pornography, the Supreme Court struck down the statute because it was so overbroad - the court said- it could have banned Romeo and Juliet as a portrayal of sexual conduct between teenagers. When Congress tried again, one provision made it a felony punishable by a minimum five-year jail term, for anyone to present, promote or receive material that is or purports to be child pornography.
A federal appeals court in Atlanta invalidated the provision, saying it was so broadly written that it punish not only illegal child pornography, but speech that is perfectly legal. Under the terms of the law, the court said, prosecutions would be authorized against ads for mainstream movies like "Lolita" and even against an exaggerator, a braggart or an outright liar who falsely advertises Walt Disney's "Snow White" as pornographic. The mainstream media is worried about the law for fear that ads for "Lolita" and "American Beauty" could result in criminal prosecution.
In the Supreme Court today, Solicitor General Paul Clement defended the law in the face of a host of tough questions.
Chief Justice Roberts: Let's say a movie reviewer describes the film as just awful and containing child pornography. Under the terms of the law, couldn't the reviewer be prosecuted?
Justice Kennedy: Suppose the distributor attaches the review to other promotional materials and post it on Amazon.com. To all these, Clement replied: If you're talking about movies like "Traffic" and "American Beauty" and you're promoting it, you've got nothing to worry about.
Justice Stevens: What about a newsreel about war atrocities that show soldiers raping children? As I understand it, someone who talks about the movie could be prosecuted.
Answer: Yes, said Clement. If the film is sufficiently graphic, that's child pornography.
Justice Ginsburg: Suppose someone says this film shows a 12-year-old child having sexual relations with an old man, that's "Lolita." And that would be covered even if the 12-year-old is played by an 18-year-old.
Answer: The law requires a showing of specific intent to convey that this is actual forbidden child pornography involving real children.
Justice Scalia: Suppose you receive unsolicited child pornography in the mail and you call up your neighbor and say, god, I got this disgusting child pornography in the mail. Are you covered by the law?
Answer: Only if you say come on over and take a look.
Justice Breyer: Even if it's not being sold?
Justice Breyer: Then you're going to criminalize a whole lot of schoolboy behavior. Showing dirty pictures is pretty common among schoolmates. If that's the case, the statute would have an enormous reach.
Justice Alito: Is there any suggestion that these hypotheticals occur with any frequency in the real world?
Answer: No. And there's no reason to think pictures handed around by adolescents involve under aged children as opposed to adult photos like "Playboy."
Clement was followed to the lectern by Florida lawyer Richard Diaz, who contended that the law is unconstitutional because it doesn't punish just trafficking and child pornography, but also talking or writing about it whether for profit or not. Even lying about having dirty pictures of kids is a crime under this law, he contended.
Justice Scalia: I had thought that the purpose of the First Amendment was to protect speech of some value. What social value is protected by lying about having this material?
Answer: We don't put people in jail for five years for lying. What's more, said Diaz, the speaker may be mistaken, may be puffing or bragging. In the real world, he said, it's very easy to puff. It's easy to take a movie like "Titanic" or "American Beauty" and say it has hot sex in it.
Justice Scalia: I don't think it's a defense to say, oh, I was just lying. What's being punished here is pandering. Pandering is pandering.
Diaz maintained though that even an opponent of child pornography who campaigns against it online could be liable under the terms of the law. Citing another example, he said, a kid could go to jail if he just e-mails a friend asking if he can get hold of some child pornography.
Justice Alito - eyebrow raised: You think that's protected by the First Amendment?
Answer: Well, maybe not by the First Amendment.
Justice Ginsburg: If not by the First Amendment, there isn't anything else.
Nina Totenberg, NPR News, Washington.
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