The Supreme Court agreed Monday to consider reviving part of a new federal law that makes it a crime to send computer messages that offer child pornography, even when no pornography exists.
Last year, a federal appeals court in Atlanta struck down the provision on free-speech grounds and said it reached too far. The judges said the law could be read to make it illegal for a grandparent to send a message that said, “Good pics of kids in bed,” when he was referring to innocent photos of his grandchildren in their pajamas.
But Justice Department lawyers called that example far-fetched, and said it should not stand in the way of a needed measure to combat trafficking in child pornography.
The court voted to hear the government’s appeal, although arguments in the case will not be heard until the fall.
It is the latest in a series of legal disputes over how to combat child pornography without infringing on freedom of speech protected by the 1st Amendment.
Five years ago, the high court struck down part of an anti-pornography law that extended to computer-generated images. Because no children were involved in creating the images, they could not be prohibited by law, the justices said.
The next year, Congress passed a revised law. One provision of the Protect Act of 2003 targeted computer users who offered or solicited child pornography. It says: “Any person who knowingly advertises, promotes, presents, distributes or solicits ... a visual depiction” of a child engaged in sex commits a crime, whether or not the material exists.
Justice Department lawyers said the provision had been used “only rarely to date,” but they also said it gave prosecutors an extra weapon for charging would-be traffickers even when the obscene images could not be located.
Under the Supreme Court’s precedents on the 1st Amendment, judges are given broad power to strike down laws that may infringe on free speech. They may consider how the laws might be applied, not just how they are being applied in a real case.
John Mitchell, a South Florida man, pleaded guilty to two violations of the child pornography law, one for advertising on the computer for nude photos of his 4-year-old daughter and the other for possessing child pornography on a computer disk. He was sentenced to five years in prison.
His lawyer appealed and argued that the advertising part of the law was too broad.
A three-judge panel in Atlanta agreed on the grounds that, in theory, it could punish people who discussed or sent messages about pornography that did not exist.
Those who traffic in “what purports to be child pornography deserve no sanctuary,” said U.S. Solicitor General Paul D. Clement. He urged the court to uphold the law as constitutional.