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The U.S. Supreme Court's decision Monday to uphold a federal child porn
law may have broad implications because it establishes that the First Amendment does not protect solicitations or offers to commit a crime. National security experts think the opinion may make it easier to convict would-be terrorists who discuss a plot that may never happen.
By a 7-2 vote in U.S. v. Williams , the Supreme upheld the federal PROTECT law making it
illegal to advertise, present, distribute or promote material that
purports to be child porn. The law was Congress' response to a Supreme
Court decision several years ago throwing out a law that made virtual
child porn illegal. The court threw out that law because it had
traditionally based its child porn decisions on the need to protect the
children depicted. With no real victims involved in virtual child
porn, that justification disappeared.
Congress responded by making it illegal to advertise material in a way
that is intended to make another person believe it is child porn, even
if real child victims are not actually involved.
Justice Scalia, writing for the court, said, “Offers to engage in
illegal transactions are categorically excluded from First Amendment
protection.” An offer to buy drugs, for example, is illegal even if
the drugs are fake. Similarly, an offer to buy child porn is illegal
even if the images are virtual and therefore not illegal themselves.
Robert Chesney, a national security law expert, speculates the decision
could have an impact on cases alleging a person has given material
support to an enemy. An example of such a case was the Lackwanna Six where six Americans of Yemeni descent, were prosecuted. They has spent time in an al-Qaida training camp before 911. He quotes from a blog entry by First Amendment
scholar Eugene Volokh:
As you may know, the Supreme Court
today rejected a First Amendment challenge to a criminal statute relating to
child pornography....Eugene Volokh’s commentary on the case clarifies the manner in
which the decision confirms the constitutionality of solicitation crimes in the
face of First Amendment challenges, however, and that aspect of the decision may
have implications, however indirect, for material support and conspiracy prosecutions
that arise in connection with defendants who allegedly engaged in recruiting
others to participate in violent activities. In any event, here is what Eugene wrote on his blog:
Today's opinion might seem
like a child pornography case; but the key (though not unexpected) holding is
that there is a First Amendment exception for solicitation of crime or offer to
commit a crime, see Part II-B.
This
is not the same as the "incitement" exception, which bars only speech
that's intended and likely to produce imminent lawless conduct. Rather, it's an
exception that covers a proposal to engage in specified illegal activity, even
if the activity is to happen at some unspecified time in the future, and even
if the activity isn't likely to happen. "Please help me out of my marital
problems, my friend, by killing my wife" wouldn't be incitement, for
instance, but it would be solicitation. Likewise, "please help me out of
my marital problems, my friend, by shooting my wife right now" probably
wouldn't be incitement if it was highly unlikely to succeed, but it would also
be solicitation or attempt (some solicitations are punishable as attempts).
Solicitation to commit a crime is generally outlawed, but of course criminal
laws have to pass muster under the First Amendment. Williams holds that this is indeed so.
From
there, the result is pretty straightforward. The statute at issue in Williams bars
knowingly advertis[ing], promot[ing], present[ing],
distribut[ing], or solicit[ing] ... any material or purported material in a
manner that reflects the belief, or that is intended to cause another to
believe, that the material or purported material ... contains
(i) an obscene visual depiction of a minor engaging in sexually explicit conduct;
or
(ii) a visual depiction of an actual minor engaging in sexually explicit
conduct ....
Material that's actually covered by subsections (i) and
(ii) is constitutionally unprotected, whether under the "obscenity"
exception or the "child pornography" exception. The Court read
"advertis[ing], promot[ing], present[ing], distribut[ing], or
solicit[ing]" as essentially involving solicitation or offer of a specific
transaction in a particular item. That the item might not actually be obscenity
or child pornography doesn't matter because the general criminal law is that an
attempt to commit a crime is punishable even if the attempt is factually
impossible. Trying to buy illegal drugs, for instance, by soliciting someone to
sell them to you is generally a criminal attempt even if the solicited seller
was only going to deliver fake drugs rather than real ones. So the bottom line
is that the prohibited conduct constitutes criminally punishable solicitation,
offer, or attempt to get or give constitutionally unprotected material.
So
this will make clear that solicitation, offer, and attempt to commit a wide
range of crimes -- including the distribution or receipt of child pornography
-- is indeed criminally punishable. And, contrary to Justice Souter's dissent
(joined by Justice Ginsburg), I don't see how this will materially change the
protection offered to distribution of nonobscene pictures that don't actually
depict real children, but instead show computer- or hand-drawn children, or
adults that look like children: A distributor or recipient may avoid liability
under the statute by simply offering or asking for "pictures of adults who
look underage" or "computer-generated pictures that look like
children."
Such
offers or solicitations won't "reflect[] the belief, or [be] intended to
cause another to believe" that the material is a visual depiction of an
actual child engaging in sex. (Of course, if the material does prove to be
actual child porn involving actual children, and the recipient knows or learns
that the material so qualifies, he might be liable for possession of actual
child porn, but that would be true regardless of the solicitation/offer ban.)
And to the extent that such offers or solicitations may be said to reflect a
belief or are intended to cause a belief that the material is obscene -- a
complicated matter given the vagueness of the term "obscene" -- the
problems that the law poses are not materially different from the problems
posed by obscenity law in the first place.
So
the opinion strikes me as generally quite sound, not much of a change in child
pornography law, and an important but fully expected recognition of the
solicitation/offer exception. The recognition of this exception requires the
Court to define and police the "important distinction between a proposal
to engage in illegal activity and the abstract advocacy of illegality,"
the latter of which is protected under Brandenburg
v. Ohio and many other cases; but the Court's recognition of this
distinction, which I just quoted, and the necessity for such a distinction,
leads me not to worry too much about the future on this score. So on balance
it's not surprising to me that the result was a lopsided 7-2.
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