The Supreme Court gave prosecutors a powerful tool Monday to attack the spread of child pornography online, ruling that people who send messages over the computer offering or seeking sexual images of children can be sent to prison, even when no such pornography exists.
The 7-2 ruling, which upheld a 5-year-old law, rejected the claim that such messages were protected as free speech.
"This will be a big help," said Patrick Trueman, a Virginia lawyer who led the Justice Department's anti-obscenity unit during the Reagan and George H.W. Bush administrations. "You don't have to prove the underlying material is illegal. The criminal offense is the speech that offers to sell or trade in illegal material."
Monday's ruling goes a long way toward overturning the effect of a 2002 decision that shielded computer-generated pornography.
The justices said then that since no real children were involved in producing such images, the material deserved protection as a form of free speech.
Prosecutors then faced a practical problem. How could they prove that realistic images of child sex scenes involved actual children? Defendants could assert they were "virtual" pornography.
In reaction, Congress passed a law in 2003 making it a crime to exchange online messages about "any material or purported material" that would cause "another to believe" it depicted a minor engaged in sex, whether "actual or simulated." Violations call for at least five years and as much as 20 years in prison.
The fate of the law remained in doubt until Monday because of legal challenges.
Two years ago, a U.S. appeals court in Atlanta ruled the law unconstitutional because it was overly broad. It could apply, in theory, to a grandfather who sends an e-mail titled "Good pics of kids in bed" to describe a photo of sleeping toddlers, the appellate judges said.
Other critics said the law could ensnare those who touted a Hollywood movie that contained simulated sex scenes.
In Monday's opinion, the high court dismissed those objections as "fanciful hypotheticals" and upheld the law.
"Child pornography harms and debases the most defenseless of our citizens," said Justice Antonin Scalia.
"We hold that offers to provide or requests to obtain child pornography are categorically excluded from the 1st Amendment," he added.
Scalia knocked down each of the objections to the new measure.
No prosecutor or jury would believe that a grandfather was offering children engaged in "sexually explicit conduct" when he sends an e-mail describing "kids in bed," Scalia said. The statute does not apply "where the material at issue is a harmless picture of a child in a bathtub," he added.
He said that those who advertise or sell movies were not in danger either. "We think it implausible that a reputable distributor of Hollywood movies, such as Amazon.com, believes that one of these films contains actual children engaging in actual or simulated sex on camera . . ." he said. "The average person understands that sex scenes in mainstream movies use nonchild actors, depict sexual activity in a way that would not rise to the explicit level necessary under the statute, or, in most cases, both."
Justices David H. Souter and Ruth Bader Ginsburg dissented. They questioned the court's retreat from the ruling that protected "fake" child pornography from prosecution.
The Justice Department brought 1,209 child pornography cases in 2006, and in 95% of them, the defendant pleaded guilty, Souter said.
"The government . . . seems to be selling itself short; it appears to be highly successful in convicting child pornographers," he said.
"Perhaps I am wrong," Souter added. "But without some demonstration that juries have been rendering exploitation of children unpunishable, there is no excuse for cutting back on the 1st Amendment."
The decision in U.S. vs. Williams restores the conviction of a Florida man who told an FBI agent online that he had photos of his own 4-year-old daughter engaged in sex. Agents raided his home and found child pornography on his computer, but not the photos that he had described.
He pleaded guilty to child pornography charges, but challenged the law's so-called pandering provision as unconstitutional.