Supreme Court Arguments on Child P*RN Law

The Supreme Court heard oral argument today in U.S. v. Williams, a case challenging the constitutionality of the pandering provision of the PROTECT Act.

The American Constitution Society has a good explanation of the issues in the case.

At issue is the “pandering” provision in the 2003 Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT Act”). The provision makes it illegal to solicit, distribute, present or offer “actual child pornography” — a sexually explicit visual representation of a real minor — or any visual representation of a minor engaging in obscene behavior.


The PROTECT Act’s pandering provision would garner almost no attention if it merely attempted to regulate real offers to transact in child pornography, cases where the material involved is indisputably illegal in nature. However, the pandering provision goes much further, criminalizing “purported offers”— offers that characterize otherwise lawful representations as illegal child pornography by emphasizing the material’s prurient appeal. The First Amendment question here is, if the pictures being “pandered” are lawful, can Congress criminalize speech drawing attention to the pictures’ sexual nature, or has Congress committed the ultimate First Amendment sin with its new pandering offense, prohibiting the mere expression of unpopular ideas?

The oral argument transcript will be available at the court's website here.

< Our Corrupt System: The Politics of Sugar | The Problem With Obama >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    Comment from a reader (none / 0) (#1)
    by Jeralyn on Tue Oct 30, 2007 at 01:25:17 PM EST
    Received by email:

    First off, I in no way, shape or form condone this (child p*rn), but in a legal sense, how does this apply to sites that `advertise' (for lack of a better word) "ALL 17" or "Young Girls Nude" yada, yada, yada that in fact, have no `girls' even approaching being under 18 much less even younger? Many sites may say the girls are underage, but they are obviously WELL over 18...Pig-tails and a shaved *** do not an underage girl make. (Sorry for the Yoda syntax)

    Can a site or proprietor be charged under the current law, even though there actually is no `child p*rn' on the site? False advertising maybe?

    It seems that Bu$hCo is trying to model the Fed justice system on the UTAH system of `Everything is either illegal, immoral or costs money' and IOKIYAR.

    it's time to repair things (none / 0) (#2)
    by Sumner on Tue Oct 30, 2007 at 03:33:26 PM EST
    "Federal courts are not comprised of philosopher-kings or legislative aides, and the Constitution forbids us from pontificating about abstractions in the law or merely giving advice about the potential legal deficiencies of a law or policy when no ongoing controversy exists with respect to that law or policy." --  Fourth Circuit Chief Judge Karen J. Williams

    The child porn laws are akin to the Dred Scott decision or the Salem Witch trials. The reparations due to each victim of these laws should be similar to the 40 acres and a mule awarded to the previous freed slaves.

    That the laws which so violate the First Amendment are not yet entirely toppled, partly goes to the haggling over what final reparations will eventually be due.

    These laws were enacted by hook and crook as a red herring for purposes of distraction from the looting of the economy by the Corporatists. Charles Keating used his morals crusade as misdirection while he looted and plundered Lincoln Savings and Loan. Ronald Reagan's administration used the same distraction with which to get America out of the Boardroom and into the Bedroom.

    The Pornography Commission previous to the Meese Commission under Ronald Reagan, found pornography just fine. When all eyes were on Enron, Jefferey Skilling said, "They're calling us child molesters!", and at that precise moment, the media went off on that red herring starting with the Catholic Church and Enron was immediately off of the front pages of the newspapers. Literally billions of dollars worth media time have been used to condition the populace with untruths of a supposed $30 billion industry in child porn and the media began falsely misstating over and over, things such as that thousands of children are abducted daily in America. How can anyone thwart that Big Lie-sized propaganda?

    The law is rigged. Just like the Omnibus Drug Control Act purported to not admit any evidence but that drugs are harmful, child pornography laws are deliberately set up not to allow examination of the material, as the laws are ultimately a fraud.

    A frequent reporter on this topic, Debbie Nathan, asks, why are journalists not "allowed" to examine such material for research purposes? The answer is simple: Because the fraud of these laws would become quickly apparent. But the 4th Estate was captured a while ago. There are very few Daniel Ellsberg type "Pentagon Papers" disclosures these days.

    That is also why the "5th Estate", (Corporations combined with the Intelligence Community) are so adamant about capturing the Internet - the remaining avenue of free speech reveals their bad acts. And like Studs Turkel said recently, they spy in order to ultimately create blacklists and so bar people from their ability to earn a living.

    These people grant themselves immunity, and point to that "wall" they've torn down between intelligence and operations - that "wall" is otherwise known as the "Bill of Rights", et al.

    The courts are often loathe to touch these cases. Judges have a keen understanding that their career advancement depends upon shilling for the Corporatists. That is why political "Donations" are touted by courts as represnting the highest form of pure speech, and yet Gonzales v. Raich is instructive.

    In Raich, the Court drew again upon that ubiquitous Commerce Clause. Even where marijuana was being used as medicine to save lives, it remains forbidden. The almighty federal government had spoken. It cannot be allowed to be disproven that marijuana is, as Reagan said, "the most dangerous drug in society". But what about those that might grow it for personal use, and not to sell? No, there is still commerce involved. People pay water bills. Well what about letting the rain water the plants then? No, water evaporates and rains again and spends some of its cycles in the municipal water systems, being sold. Such a (fictitious) convoluted argument would seem in line to what the courts have used and would seem to be the kind of logic reached by the courts in other cases.

    Another example of selective judging is where the Courts refused to hear the case of the Alabama merchant who sold "sex toys" as marital aids, but the court allowed the State of Alabama to ban them on puritanical grounds. But by the same logic, eyeglasses or hearing aids etc., are also fair game.

    So what do we do about this? How do we reclaim our country from the Corporatists and 5th Estate with all their money buying government in virtually direct acts of commerce?

    Well, as they continually explain to us that we must surrender our inalienable rights and that we must accept their exceptions to clearly absolute protections like the First Amendment, which the Court has presumed to carve out an exception to with child porn laws, we must turn the tables on them. Lobbyists buying our government is NOT the highest form of speech, it is commerce, and moreover, it is Antitrust at that.

    We must insist on public financing of our politicians, and not accept the canard that the existing racket, commonly known as "politics" now, has any interest in the public good at all.

    If the courts will not do this, we must have new courts. We must insist.