WASHINGTON — The Supreme Court upheld a strict federal anti-pornography law Monday, ruling that criminalizing the "promotion" of child pornography does not stifle free speech.
The court, in a 7-2 decision, rejected suggestions that Congress, in seeking to stamp out child abuse, had gone too far by making it a federal crime to advertise or promote child pornography.
Instead, Justice Antonin Scalia, writing for the majority, said Congress had not run afoul of the First Amendment.
"The act before us does not prohibit advocacy of child pornography, but only offers to provide or requests to obtain it," Scalia wrote. "There is no doubt that this prohibition falls well within constitutional bounds. ... We hold that offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment."
Critics had suggested the law could chill free expression, including racy movies or even their critiques.
But Scalia rejected those arguments, writing that the court found it "implausible that a reputable distributor of Hollywood movies ... believes that one of these films contains actual children engaging in actual or simulated sex on camera."
The case began with the 2004 arrest of Michael Williams, a former Miami police officer who was charged with both "promoting" and possessing child pornography. Williams was living in Key Largo at the time of his arrest, part of an undercover operation aimed at fighting child exploitation on the Internet.
A special agent with the U.S. Secret Service entered an Internet chat room and spotted a suggestive message from Williams, according to court documents.
An appeals court in 2006 agreed with Williams' appeal of the pandering provision, finding that the charge was "unconstitutionally overbroad" because it gives police officers "incredibly broad discretion."
The high court agreed to review the Atlanta court's ruling at the behest of the Bush administration, which views the pandering charge as critical to stem the tide of child pornography. The 2003 law was enacted after the high court found an earlier anti-porn law unconstitutional.
But Justice David Souter, joined by Justice Ruth Bader Ginsburg, said the new law still violates the Constitution. Souter argued that pandering of images that didn't involve actual children still could be prosecuted under the law.
"Without some demonstration that juries have been rendering exploitation of children unpunishable, there is no excuse for cutting back on the First Amendment," he wrote.
Williams, who was sentenced to 60 months in prison for possession of child pornography, is in the process of being released, said his attorney, Richard Diaz. Williams' sentence isn't affected by Monday's ruling, Diaz said, though Williams has to pay an additional $100 to the courts.
Diaz, a Coral Gables attorney who argued the case before the high court in October, called the decision a "sad day for the First Amendment."
"It really turns the part of free speech that protects free thought upside down," said Diaz, who had argued before the court that under the provision 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."
"It doesn't matter if the pornography exists or the person is mistaken about it," Diaz said. "It punishes belief and expression."
Comments