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What Were They Thinking? United States v. Williams and Free Speech

Today's post is from Frederick S. Lane, author of The Court and the Cross: The Religious Right's Crusade to Reshape the Supreme Court. Lane is an expert witness, lecturer, and author who has appeared on The Daily Show with Jon Stewart, CNN, NBC, ABC, CBS, the BBC, and MSNBC. His next book will be People in Glass Houses: American Law, Technology, and the Right to Privacy (Beacon 2009). For additional information, please visit

LaneRoughly a month ago, the United States Supreme Court handed down a decision in United States v. Williams that upheld the consitutionality of the Prosecutorial Remedies and other Tools to end the Exploitation of Children Today Act of 2003 (The PROTECT Act). The 7-2 decision is the latest in a disturbing line of Congressional actions and Supreme Court decisions that cloak encroachments on the First Amendment in the pious garb of protecting children.

A little background is useful in understanding the implications of the Williams decision. It is fair to say that the United States is unparalleled among the nations of the world in its tolerance of speech. From the instant it is uttered, virtually all speech is presumed to be protected by the First Amendment. That presumption can be overcome, but only if a prosecutor or plaintiff can prove that the speech falls into one the recognized exceptions to the First Amendment: libel or slander, for instance, or obscenity.

There is only category of speech that does not enjoy the presumption of First Amendment protection: child pornography, which has traditionally been defined as sexually explicit visual depictions of individuals under the age of 18. If a prosecutor can prove that the subject of a sexually explicit photograph, for instance, is under the age of 18 then, regardless of how artistic or socially significant the photo may be, it is still "obscene" and not protected by the First Amendment.

In response to a surge in the production and distribution of child pornography in the late 1970s and early 1980s, the federal and state governments passed laws making it a crime to possess child pornography. Although the Supreme Court has held that mere possession of obscenity is protected by the First Amendment (Stanley v. Georgia [1969]), it agreed that possession of child pornography could be barred (New York v. Ferber [1982]).

"The prevention of sexual exploitation and abuse of children," Justice Byron White wrote, "constitutes a government objective of surpassing importance." Among other things, he noted, the New York legislature found that child pornography serves as a "permanent record" of abuse, a harm that is perpetuated by continued circulation of the images. The legislature also declared (and the Court agreed) that penalizing consumers would lessen demand for child pornography and help to fight its production. Regardless of one's position on the political spectrum, there is virtually no disagreement that a ban on both the production and possession of actual child pornography is a good social policy.

The Court's ratification of a flat ban on child pornography had a relatively minimal impact on the First Amendment. Admittedly, the ruling did cause serious problems for some photographers, ranging from parents taking innocuous photos of their children to fine art photographers whose works included nude photos of children (among the more well-known examples are David Hamilton, Jock Sturges, and Sally Mann). But on the whole, it was relatively easy to draw a bright line between legal and illegal images, and law enforcement made substantial progress in fighting child pornography.

Most of those gains, however, have been wiped out by computers, the Internet, and digital cameras, all of which have made the production and distribution of child pornography vastly easier and far more difficult to combat. These new technologies have also blurred the previously bright line between legal and illegal images: many websites feature very young-looking but still adult models; some individuals use software to blend two or more legal images into composite child pornography; and others use animation software to create completely artificial (but increasingly realistic) child pornography images.

In 1996, Congress adopted the Child Pornography Prevention Act as part of an omnibus appropriations bill. Among other things, the CPPA made it a crime to possess or distribute digital representations of minors engaged in sexual activity, even if the persons in the image were not actual minors. In Ashcroft v. Free Speech Coalition (2002), however, the Supreme Court ruled (by a 6-1-2 vote) that the CPPA was unconstitutional because it criminalized speech legitimately protected by the First Amendment.

"The CPPA," Justice Kennedy wrote, "prohibits speech despite its serious literary, artistic, political, or scientific value. The statute proscribes the visual depiction of an idea--that of teenagers engaging in sexual activity--that is a fact of modern society and has been a theme in art and literature throughout the ages."

The Court's decision was widely criticized by conservatives, and in particular, by the evangelical wing of the Republican Party, which has been at the forefront of Congressional efforts to restrict sexual materials online. It is no accident that in his recent speech on judicial activism, Senator John McCain alluded to the Free Speech Coalition decision as an example of activist judges.

In response to the Free Speech Coalition decision, Congress passed the PROTECT Act, which dropped the outright ban on "virtual" child pornography. Instead, the law makes it illegal to advertise or present any material in such a way as to lead someone to believe that the material contains "an obscene visual depiction of a minor engaging in sexually explicit conduct," or "a visual depiction of an actual minor engaging in sexually explicit conduct."

"Both the State and Federal Governments have sought to suppress it for many years," Justice Antonin Scalia wrote, "only to find it proliferating through the new medium of the Internet. This Court held unconstitutional Congress's previous attempt to meet this new threat, and Congress responded with a carefully crafted attempt to eliminate the First Amendment problems we identified. As far as the provision at issue in this case is concerned, that effort was successful."

The dissent in Williams was written by the Supreme Court justice the Religious Right most despises, David Souter. Along with Justice Ruth Bader Ginsburg, Souter argued that the PROTECT Act is constitutionally flawed because an individual could be prosecuted for advertising or selling an image that is not itself illegal (a sexually explicit photograph, for instance, that does not depict actual children), but which the buyer or seller simply believes is illegal.

"We should hold that a transaction in what turns out to be fake pornography is better understood," Justice Souter said, "not as an incomplete attempt to commit a crime, but as a completed series of intended acts that simply do not add up to a crime, owing to the privileged character of the material the parties were in fact about to deal in."

While recognizing the gravity of the problem being addressed by Congress, Souter suggested that the harm to the First Amendment is much more significant. Traditionally, he said, limitations on speech are grounded on "realistic, factual assessments of harm." Instead, the PROTECT Act bases its criminal prosecutions on "nothing more than a speaker's statement about the material itself, a statement that may disclose no more than his own belief about the subjects represented or his desire to foster belief in another."

"First Amendment freedoms," Justice Souter quoted from the Free Speech Coalition case, "are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."

It is worth reiterating time and again that child pornography is a serious crime and a growing problem for law enforcement, and that all available resources should be devoted to preventing its production and prosecuting its distribution. But even the Religious Right should be wary of a law that for the first time makes it possible to prosecute someone for what they merely think.

You might also be interested in reading Frederick Lane's posts on John McCain and the Religious Right, the Supreme Court and the 2008 Presidential campaign, and Charlton Heston and the separation of church and state.