The United States Supreme Court on May 19 upheld criminal penalties for promoting child pornography, brushing aside concerns that the law could apply to mainstream movies that depict adolescent sex, computer simulations of children engaged in graphical acts, or even innocent eMail messages that describe pictures of grandchildren.

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

The law sets a five-year mandatory prison term for promoting, or pandering, child porn. It does not require that someone actually possess child pornography. Opponents have said the law could apply to movies, such as Traffic or Titanic, that depict adolescent sex.

But Justice Antonin Scalia, in his opinion for the court, said the law does not cover movie sex–nor does it cover computer-generated depictions of children engaged in sexual acts. 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 he was concerned that the promotion of images that are not real children engaging in sexual or suggestive acts still could be the basis for prosecution under the law.

"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 11th U.S. Circuit of Appeals had struck down the law’s "pandering" provision. The Atlanta-based court said it makes a crime out of merely talking about illegal images or possessing innocent materials that someone else might believe is pornography.

In the appeals court’s view, the law could apply to an eMail message sent by a grandparent and entitled "Good pics of kids in bed," for example, showing grandchildren dressed in pajamas.

In 2002, the court struck down key provisions of a similar 1996 child pornography law because they called into question legitimate educational, scientific, or artistic depictions of youthful sex.

Congress responded the next year with the PROTECT Act, which contains the provision under challenge in the current case. (See "Congress tries again to crack down on child pornography.")

Authorities arrested Michael 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. Williams advertised himself as "Dad of toddler has ‘good’ pics of her and me for swap of your toddler pics, or live cam."

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.

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United States Supreme Court