High court weighs child porn statute

The Supreme Court struggled Tuesday to determine if a provision of the nation’s child pornography law goes too far and violates the free-speech protection of the 1st Amendment.

No one disputes that it is a crime to have pornographic pictures of children or send them via the Internet. What remains unclear is whether it is illegal to merely talk about and offer pornographic pictures of children via the Internet.

In 2003, Congress sought to strengthen the law against pornographers and pedophiles and made it a crime -- carrying a five-year prison term -- to use a computer to “advertise, promote [or] present” real or purported material with “sexually explicit” depictions of minors.

Hearing arguments Tuesday in a case that challenges that portion of the law, the justices posed a series of hypothetical examples to the lawyers. Suppose a news team or a freelance cameraman records videos of children being sexually abused in the brothels of a Third World country -- would advertising that footage constitute a crime? What if a film reviewer describes a new movie -- or an old one such as “Lolita” -- and says it depicts a young girl having sex? What about a documentary that shows soldiers raping girls?

In defense of the law, U.S. Solicitor Gen. Paul D. Clement said the government intended to prosecute only those who knowingly exchanged true pornography. “If the underlying movie is not child pornography, then truthful efforts to promote that movie won’t be captured,” he said. “If you’re taking a movie like ‘Traffic’ or ‘American Beauty’. . . you have nothing to worry about.”

However, the example of the soldiers raping girls proved more troublesome. “If the depiction were sufficiently graphic. . . the person would be in possession of child pornography,” Clement said. Nonetheless, he said the defendant could challenge the prosecution because there was no intent to make pornography.

The dispute before the court arose last year when the U.S. Court of Appeals in Atlanta struck down the anti-pandering provision of the child pornography law because it was too broad. It could cover, the judges said, an e-mail such as “Good pics of kids in bed,” even if it were sent by a grandparent who was speaking of toddlers in pajamas.

The ruling came in the case of convicted child pornographer, Michael Williams of Key Largo, Fla. Williams exchanged messages online with an undercover agent and offered nude photos of a 4-year-old he described as his daughter. While he did not have such photos, agents found other child pornography on his home computer.

He was convicted and sentenced to five years in prison for possessing child pornography and another five years for offering nude photos online. The appeals court upheld his conviction for possession, but voided the second conviction.

During Tuesday’s arguments in U.S. vs. Williams, most of the justices signaled they were inclined to overturn the appeals court and uphold the law. Several also wondered why a true pornographer should be freed based on examples of innocent people who might be caught in the law.

“What’s your best realistic example?” asked Justice Samuel A. Alito Jr., looking perturbed as Williams’ lawyer debated hypothetical examples with the other justices.

When attorney Richard Diaz said movies such as “Titanic” or “Lolita” were described online as showing “hot teen sex,” Chief Justice John G. Roberts Jr. cut him short. “Your client didn’t produce ‘Lolita,’ ” he said.

In his closing comments, Clement said innocent people who ran afoul of the law could go to court and challenge it as violating their free-speech rights. In the interim, he urged the court to uphold the law as written.

A ruling in the case is expected in several months.

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david.savage@latimes.com