A Secret Service agent engaged the defendant in an internet chat room after the latter posted a teasing message that hinted involvement of child pornography. The defendant also attached an uplink that showed children in sexually explicit poses. His house was searched revealing hard drives with images of children in sexually explicit conduct. He was charged with pandering under §2252(A)(a)(3)(B) and child pornography under §2252(A)(a)(5)(B) and convicted by the federal court, but the Court of Appeals reversed the conviction of the first crime on the grounds that the provision was overbroad and vague.
In 2003, the US Congress passed the PROTECT Act to prevent internet-based child pornography. The law aims to assist law enforcement to identify and track down individuals who use the internet to commit child pornography. Previous to its passage, the Supreme Court had overturned many of the provisions of the CPPA or the Child Pornography Prevention Act of 1966 (Schell 199). In the case of Ashcroft v. Free Speech Coalition, 535 US 234 (2002), for example, the SC struck down two provisions of that law for being overbroad. The PROTECT Act seeks to strengthen child pornography laws after many of the CPPA provisions had been rendered void. In particular, §2252(A)(a)(3)(B) of the PROTECT Act 2003 codified under Title 18, Part 1, Chapter 110 of the US Code, which prohibits and punishes the advertising, promoting, distributing or soliciting through any means to enable commerce within states or with other countries of child pornography, actual or purported, with the intent to lead the other party to believe that the material is child pornography.
Whether §2252(A)(a)(3)(B) of the PROTECT Act 2003 violates the First Amendment on free speech for being overbroad and vague violating, in effect, the due process clause.
The SC overturned the CA decision holding that provision in issue on pandering of child pornography did not violate the First Amendment protection of free speech.
The Court held that the PROTECT provision on pandering is not overbroad or too vague as to violate the free speech protection under the First Amendment. A provision is only facially invalid if it includes the prohibition of a considerable amount of protected speech, hence, is overbreadth. However, §2252(A)(a)(3)(B) of the PROTECT Act is directed at collateral speech that introduces pornographic materials into the child pornography distribution system. It clearly defines child pornographic materials subject to pandering within the limits of constitutionally upheld definitions as established in the cases of Miller v. California, 413 U.S. 15 (1973) and New York v. Ferber, 458 U.S. 747 (1982). Moreover, the law includes features that clarify the provision. These features include, according to the Court, the scienter requirement evinced by the inclusion of the word “knowingly,” operative verbs pointing to the transactional nature of the provision, the inclusion of both subjective and objective components reiterating the knowledge of the defendant as to the pornographic nature of the materials, and the definition of key terms that are in concert with well-established definitions in constitutionally upheld cases.
Moreover, the First Amendment does not protect offers to engage in illegal agreements as was held in Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376 (1973). The underlying rationale for such exclusion is that unlawful transactions, according to the Court, have no social value, thus, proscribing not only commercial speech of such nature, but even non-commercial speech. The provision is neither too vague as to violate the due process clause, according the Court. Such only occurs when a provision of law fails to give notice to a person of reasonable intelligence for lack of clarity of what it prohibits. The provision in issue does not create indeterminacy of the facts because its requirements are clear questions of facts.
IMPACT ON LAW PROCEDURE
The impact of the United States v. Williams is that it created a window for law enforcement to facilitate the apprehension of child pornographers despite the technical obstructions established in the Ashcroft case. The upholding of the pandering provision has broadened the procedural justifications against child pornography because it has enabled the legal pursuit against child pornographers, whether the pornographic materials involved real children or virtual children. It strengthened the government’s power, particularly favoring prosecutors, to go after child pornographers (McNeill 1072). The decision resulted in the possibility of hurdling the strict scrutiny test established in previous decisions involving child pornography vis-à-vis the First Amendment protection. This is made possible by shifting the focus on transactions that purport to involve children in sexual activities, rather than just mere possession. This shift in focus allowed the inclusion of virtually almost everything that has to do with child pornography, so long as such materials have been conveyed as child pornography. This, however, according to McNeill (1072) has, in effect, overruled both the Ferber and Ashcroft cases, which refused to criminalize child pornography involving only virtual minors.
Ashcroft v. Free Speech Coalition, 535 US 234 (2002).
McNeill, Taylor. “Protecting Our Children or Upholding Free Speech: Does One Exclude the Other? United States v. Williams.” Mercer Law Review, vol. 60, pp. 1059-1073.
Schell, Bernadette. The Internet and Society: A Reference Handbook. ABC-CLIO, 2007.
United States v Williams, 553 U.S. 285 (2008).