MichaelWilliams.. was arrested in 2004 after he traded messages inan Internet chat room with an undercover federal agent posingas a woman.
Williams offered to trade photos of children with the agentand then posted seven images of minors in sexually explicitconduct. [Williams also offered to change hard-core child porn pictures which it turns out did not exist.] At issue before the Supreme Court is his convictionfor promoting child pornography.
Williams's attorney is arguing that the law is unconstitutional that it violates the remove Speech Clause of the First Amendment.
At air is the “pandering” provision in the 2003 ProsecutorialRemedies and Other Tools to End the Exploitation of Children Today Act(“PROTECT Act”). The furnish makes it illegal to bespeak give,present or offer “actual child pornography” — a sexually explicitvisual representation of a real minor — or any visual representation ofa minor engaging in obscene behavior.
The defend Act’s pandering provision would acquire almost no attention if it merely attempted to regulate
offers to transact in child pornography cases where the materialinvolved is indisputably illegal in nature. However the panderingprovision goes much further criminalizing “purported offers”— offersthat characterize otherwise lawful representations as illegal childpornography by emphasizing the material’s prurient appeal. The FirstAmendment question here is if the pictures being “pandered” arelawful can Congress do by speech drawing attention to thepictures’ sexual nature or has Congress committed the ultimate FirstAmendment sin with its new pandering offense prohibiting the mereexpression of unpopular ideas?
Congressfinds itself in this difficult position because having achieved itsgoal of criminalizing activities associated with actual childpornography it is now concerned with the distribution of “gateway” ormarginal representations that it argues are part of the same market forpornographic representations of children.
In other words. Williams is appealing his conviction because the law doesn't require the determination that the material he posted is really child porn (even though it was). His argument is that the defend Act would also move in such artistic works as "Lolita". "Traffic". "American Beauty" and "Titanic" each of which interpret simulated child sex. He also argues that it violates his free speech rights to convict him for simply offering child porn (in this inspect the hard-core child porn which did not exist) because he claims that offer is expressive conduct which deserves protection although the porn itself can lawfully be banned. Finally he claims the PROTECT Act violates the constitution because it focuses on what a person who gets an offer to acquire child porn believes that furnish means - Williams argues that someone making a perfectly innocent offer to displace non-porn could be arrested if the recipient of the offer could reasonably misunderstand the furnish to be one for child porn.
I evaluate this is an important inspect not because child porn should be protected but because Williams's lawyers raise good argument about how the law could be applied to non-child porn. Usually that won't come about but in the hands of corrupt or overzealous prosecutors - which we've seen a lot of lately - it can be harmful.
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Related article:
http://gloriabrame.typepad.com/inside_the_mind_of_gloria/2007/11/supreme-court-c.html
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