‘Pandering’ and porn

Michael Williams, a child pornographer whose appeal was heard by the U.S. Supreme Court last week, is not seeking exoneration. Indeed, he has acknowledged both possessing sexually explicit images of children and offering to provide such loathsome material to an undercover agent. The justices took Williams’ case, however, not to establish his guilt or innocence but to answer two larger legal questions: Is the federal law against “pandering” child pornography so loosely worded that it could allow the government to prosecute speech protected by the 1st Amendment? And, if so, must the court strike down the law?

The answer to the first question is clearly yes. The pandering provision makes a criminal out of anyone who “advertises, promotes, presents or distributes” material that “is intended to cause another to believe” that it includes photographs of minors engaged in sexual activities or computer-generated images of children that meet the court’s definition of obscenity. The term “presents” is particularly vague.

“Let’s say I’m a movie reviewer,” Chief Justice John G. Roberts Jr. told U.S. Solicitor Gen. Paul D. Clement, who was defending the law’s constitutionality. “I write a review saying this is an awful movie. It portrays child pornography. ... Wouldn’t that be covered by the statute?” Clement assured the court that no one encountering an article about “Lolita” -- a serious film about a middle-aged man’s sexual obsession with a 14-year-old girl -- would conclude that it was really child pornography. Unfortunately, Clement’s concession doesn’t have the force of law.

Despite their pointed questioning, the justices seemed reluctant to invalidate the pandering provision, send Congress back to the drawing board again and endure complaints that the judiciary is sabotaging the war on sexual predators. They remember the uproar five years ago when the court struck down a ban on computer-generated “virtual child pornography.” In that case, the majority cited two factors: No actual children were harmed in the creation of “virtual” pornography, and the language of the law could be applied to serious fictional depictions of teenage sexual relationships -- including “Romeo and Juliet.”

The same might be said about some situations covered by the pandering provision’s ban on descriptions of material “intended to cause another to believe” that it’s obscene. Does that mean this law too must be voided on the grounds that it is overbroad? Not necessarily.

Clement and Justice Stephen G. Breyer discussed a more politically palatable alternative: Rather than declare the provision unconstitutional, the court could interpret it narrowly -- for example, as applying only to the offer to sell or trade child pornography, real or imagined. That would allow the court to rule that the law was not “substantially overbroad,” while allowing future challenges to misuse of the law by overzealous prosecutors. Not a tidy solution, but better than a decision that rubber-stamped an overreaching law.