WASHINGTON — Supreme Court Justice Ruth Bader Ginsburg hasn't seen the movie "Traffic," but she's apparently familiar with the racier "Lolita." Justice Stephen Breyer says it's not uncommon for adolescent boys to share lurid pictures with one another.
Those were among the revelations Tuesday as the nation's highest court grappled with the question of whether Congress — in seeking to stamp out child pornography on the Internet — went too far by making it a federal crime to knowingly advertise, promote or distribute material even if it only purports to show child pornography.
The case originated out of Miami with the April 2004 arrest of former Metro-Dade Police Sgt. Michael Williams, who's now doing 60 months in federal prison in Texas for possession of child pornography. It's attracted interest from First Amendment advocates, who say the case could chill free expression, including critiques of racy movies.
The justices appeared skeptical of those warnings, though they pushed the Bush administration to define the boundaries: Ginsburg asked whether the language in the legislation would permit the prosecution of someone who said a "film depicts a 12-year-old child as having sexual relations with an old man."
"It could be conceived as child pornography, but it's a truthful statement about 'Lolita,' is it not?" Ginsburg said.
Breyer questioned whether the provision would trip up "schoolboy behavior."
U.S. Solicitor General Paul Clement rejected suggestions that the law is so broad that it would encompass such activities as writing about movies or photography or filming mainstream motion pictures.
"The material we are talking about is unlawful even to possess," Clement said, later adding, "If you're taking a movie like 'Traffic' or 'American Beauty,' which is not child pornography, and you're simply truthfully promoting it, you have nothing to worry about with this statute."
An appeals court in 2006 reversed Williams' conviction for promoting child pornography, saying the 2003 law was "unconstitutionally overbroad" because it gives police officers "incredibly broad discretion."
The Bush administration and anti-pornography groups, however, say the measure is key to fighting child abuse because offers to buy or share illicit material "help drive the market for child porn" even when no pornography exists.
Attorney Richard Diaz, arguing for Williams, said the measure punished "thoughts, beliefs, expressions and opinions." He said someone could be charged with a federal crime for describing "American Beauty" — a movie about a middle-aged man lusting after a teenage girl — as "hot, graphic teen sex."
The justices appeared unmoved, with Chief Justice John G. Roberts noting that Williams "didn't produce 'Lolita.' "
Justice Anthony Kennedy pointed out that Williams wasn't trafficking in mainstream material.
"He was convicted of having what everyone recognizes as not only child pornography but involving a very small child," Kennedy said. "He knew what it was. And he conveyed that belief."
The justices did suggest that they were troubled by the potential effects of the law. Kennedy asked about a hypothetical situation such as a video that depicts actual child torture captured as news, not entertainment. Clement said cases involving what would be considered constitutionally protected speech could be handled individually, rather than by striking down the law.
Williams was living in Key Largo, Fla., at the time of his arrest, which followed an undercover operation aimed at fighting child exploitation on the Internet.
A special agent with the Secret Service who was working in the agency's Miami field office on an electronics-crimes task force went into an Internet chat room and spotted a message posted by a member who used a "sexually graphic screen name," according to court documents.
In the posting, the man later identified as Williams wrote, "Dad of toddler has 'good' pics of her an (sic) me for swap of your toddler pics, or live cam."
During an Internet chat, he and the agent swapped nonpornographic photographs. At one point, Williams accused the undercover officer of being a cop and then posted seven images of minors engaging in sexually explicit conduct.
Secret Service agents executed a search warrant of his home, finding "at least 22 images of actual minors engaged in sexually explicit conduct" on two computer hard drives.
Williams was charged with one count of possession of child pornography along with one count of promoting material "in a manner that reflects the belief, or that is intended to cause another to believe," that the material is illegal child pornography.
His case landed at the high court after his attorney, Diaz, who served on the police force with Williams in the 1980s, said he was flummoxed by the pandering charge.
Diaz, arguing for the first time before the court, brought along his wife and two children to watch.
"I'm anything but a constitutional scholar," Diaz said. "But this law is unconstitutional and vague."