Justices: Child Porn Not Protected Speech

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It is still a crime to promote or present material as child pornography, the Supreme Court ruled Monday.

Monday's 7-2 ruling upheld part of a 2003 law that also prohibits possession of child porn. That law had replaced an earlier law against child pornography that the court struck down as unconstitutional.

Click the play button for an interview with Wendy Wright of the Concerned Women for America.

Violators could be sentenced to a five-year mandatory prison term for promoting child porn.

Real or Not Real?

Originally, the 2003 provision was struck down by the 11th U.S. Circuit of Appeals. The lower court said it makes a crime out of merely talking about illegal images or possessing innocent materials that someone else might believe is pornography.

Opponents argued that the law could apply to movies like Traffic or Titanic that depict adolescent sex.

But Justice Antonin Scalia, writing for the majority, said it does not cover movie sex.

There is no "possibility that virtual child pornography or sex between youthful-looking adult actors might be covered by the term 'simulated sexual intercourse,"' Scalia said.

Likewise, Scalia said First Amendment protections do not apply to "offers to provide or requests to obtain child pornography."

Justice David Souter, joined by Justice Ruth Bader Ginsburg, dissented.

Souter said promotion of images that are not real children engaging in pornography still could be the basis for prosecution under the law. Possession of those images, on the other hand, may not be prosecuted, Souter said.

"I believe that maintaining the First Amendment protection of expression we have previously held to cover fake child pornography requires a limit to the law's criminalization of pandering proposals," Souter said.

The Case in Question

The case involves Michael Williams, convicted in a Florida federal court for promoting child pornography on the Internet. Authorities arrested Williams in an undercover operation aimed at fighting child exploitation on the Internet.

A Secret Service agent engaged Williams in an Internet chat room, where they swapped non-pornographic photographs.

After the initial photo exchange, Williams allegedly posted seven images of actual minors engaging in sexually explicit conduct.

Agents who executed a search warrant found 22 child porn images on Williams' home computer.

Williams also was convicted of possession of child pornography. That conviction, and the resulting five-year prison term, was not challenged.

The case is U.S. v. Williams, 06-694.

Source: The Associated Press, CNN, Reuters

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