In a refreshingly lopsided 7-2 ruling, the Supreme Court has upheld a federal law that prohibits pandering child pornography. Doing so, the court restores a measure of common sense to its perplexing obscenity jurisprudence.
On the surface, no First Amendment protection is extended to “sexually explicit material that violates fundamental notions of decency,” the Court’s standing definition of obscene “speech.” Fundamental notions of decency have withered in the last half century, however, and with them the court’s capacity to specify the permissible sphere of regulation.
Convinced in 1964 that free-speech principles rendered only “hardcore pornography” subject to proscription, Justice Potter Stewart famously pronounced himself unable to define it to any more rigorous standard than, “I know it when I see it.” Under such inscrutable guidelines, a struggle has ensued between lawmakers, whose restrictions on obscenity reflect the values of their communities, and jurists, whose rejections of those restrictions reflect elite, evolving notions of “redeeming social value.”
One might have thought common ground could be found on the narrow and revolting matter of child pornography. Such images depict the sexual abuse of minors incapable of consent. The abuse, moreover, feeds on itself, fueled by an underground market that craves nothing so much as new images. But banning traffic in even this condemnable depravity has proved difficult.
In 1996, addressing the explosion of child pornography on the Internet, Congress attempted to criminalize visual depictions of what were, or appeared to be, minors “engaging in sexually explicit conduct.” But in Ashcroft v. Free Speech Coalition (2002), the Supreme Court invalidated the law. The justices fretted that a provision clearly designed to protect children from exploitation might somehow suppress adaptations of Romeo and Juliet and chill what they, in their wisdom, took to be the fundamental right to traffic in “virtual” child pornography.
After Free Speech Coalition, the Court’s precedents appeared to leave two categories of images subject to preclusion: images of actual children engaging in sex acts, and those of children (actual, virtual, or adults posing as children) engaging in conduct sufficiently lewd to be deemed obscene.
Congress tried to dry up the market by prohibiting offers or solicitations to exchange such content in interstate and foreign commerce (which of course includes the Internet). As night follows day, the usual suspects filed lawsuits complaining that these carefully targeted proscriptions — in what was, in the current fashion, torturously named the “Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today [i.e., Protect] Act of 2003” — were too sweeping. Sen. Patrick Leahy, then the ranking member of the Judiciary Committee protested that the law went too far. The Eleventh Circuit federal appeals court agreed.
Monday’s ruling in United States v. Williams reversed the appellate court and upheld the law. Justice Scalia explained that when a ban on child pornography is challenged on “overbreadth” grounds, complainants must demonstrate not merely that they can come up with some clever Romeo and Juliet-type example of a chilling effect; they must instead show that a disproportionate amount of protected speech could realistically be imperiled in the legitimate effort to bar antisocial expression that lies outside the First Amendment’s carapace. In this case, the new law took pains to laser in on depravity that clearly enjoys no First Amendment protection. The Court concluded that this law would not be overturned based on speculation about its potential to discourage real art.
This is exactly as it should be. The government can be expected to apply the law, day in and day out, exclusively against real offenders — such as the defendant in Williams, who was peddling what he advertised as photos of men molesting his four-year-old daughter. Meanwhile, in the unlikely event an overzealous prosecutor were to stretch the law to criminalize, say, a news organization’s good-faith video reporting on the abuse of children, that organization could still challenge the law “as applied” to itself.
It seems sensible to us not to throw the baby out with the bathwater. Since the Court doesn’t always see it that way when the First Amendment is involved, we’re relieved that the justices vindicated democratic choice, putting off what Justice Scalia aptly called “fanciful hypotheticals” until such a time as they may arise in real-world cases.