This article first appeared in the St. Louis Beacon: By a 7-2 vote in U.S. v. Williams, the Supreme upheld the federal PROTECT law making it illegal to advertise, present, distribute or promote material that purports to be child porn. The law was Congress' response to a Supreme Court decision several years ago throwing out a law that made virtual child porn illegal. The court threw out that law because it had traditionally based its child porn decisions on the need to protect the children depicted. With no real victims involved in virtual child porn, that justification disappeared.
Congress responded by making it illegal to advertise material in a way that is intended to make another person believe it is child porn, even if real child victims are not actually involved.
Justice Scalia, writing for the court, said, “Offers to engage in illegal transactions are categorically excluded from First Amendment protection.” An offer to buy drugs, for example, is illegal even if the drugs are fake. Similarly, an offer to buy child porn is illegal even if the images are virtual and therefore not illegal themselves.
Robert Chesney, a national security law expert, speculates the decision could have an impact on cases alleging a person has given material support to an enemy. An example of such a case was the Lackwanna Six where six Americans of Yemeni descent, were prosecuted. They has spent time in an al-Qaida training camp before 911. He quotes from a blog entry by First Amendment scholar Eugene Volokh:
As you may know, the Supreme Court today rejected a First Amendment challenge to a criminal statute relating to child pornography. ... Eugene Volokh’s commentary on the case clarifies the manner in which the decision confirms the constitutionality of solicitation crimes in the face of First Amendment challenges, however, and that aspect of the decision may have implications, however indirect, for material support and conspiracy prosecutions that arise in connection with defendants who allegedly engaged in recruiting others to participate in violent activities. In any event, here is what Eugene wrote on his blog:
Today's opinion might seem like a child pornography case; but the key (though not unexpected) holding is that there is a First Amendment exception for solicitation of crime or offer to commit a crime, see Part II-B.
This is not the same as the "incitement" exception, which bars only speech that's intended and likely to produce imminent lawless conduct. Rather, it's an exception that covers a proposal to engage in specified illegal activity, even if the activity is to happen at some unspecified time in the future, and even if the activity isn't likely to happen.
"Please help me out of my marital problems, my friend, by killing my wife" wouldn't be incitement, for instance, but it would be solicitation. Likewise, "please help me out of my marital problems, my friend, by shooting my wife right now" probably wouldn't be incitement if it was highly unlikely to succeed, but it would also be solicitation or attempt (some solicitations are punishable as attempts). Solicitation to commit a crime is generally outlawed, but of course criminal laws have to pass muster under the First Amendment. Williams holds that this is indeed so.
From there, the result is pretty straightforward. The statute at issue in Williams bars
knowingly advertis[ing], promot[ing], present[ing], distribut[ing], or solicit[ing] ... any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material ... contains (i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a visual depiction of an actual minor engaging in sexually explicit conduct ....
Material that's actually covered by subsections (i) and (ii) is constitutionally unprotected, whether under the "obscenity" exception or the "child pornography" exception. The Court read "advertis[ing], promot[ing], present[ing], distribut[ing], or solicit[ing]" as essentially involving solicitation or offer of a specific transaction in a particular item. That the item might not actually be obscenity or child pornography doesn't matter because the general criminal law is that an attempt to commit a crime is punishable even if the attempt is factually impossible. Trying to buy illegal drugs, for instance, by soliciting someone to sell them to you is generally a criminal attempt even if the solicited seller was only going to deliver fake drugs rather than real ones. So the bottom line is that the prohibited conduct constitutes criminally punishable solicitation, offer, or attempt to get or give constitutionally unprotected material.
So this will make clear that solicitation, offer, and attempt to commit a wide range of crimes -- including the distribution or receipt of child pornography -- is indeed criminally punishable. And, contrary to Justice Souter's dissent (joined by Justice Ginsburg), I don't see how this will materially change the protection offered to distribution of nonobscene pictures that don't actually depict real children, but instead show computer- or hand-drawn children, or adults that look like children: A distributor or recipient may avoid liability under the statute by simply offering or asking for "pictures of adults who look underage" or "computer-generated pictures that look like children."
Such offers or solicitations won't "reflect[] the belief, or [be] intended to cause another to believe" that the material is a visual depiction of an actual child engaging in sex. (Of course, if the material does prove to be actual child porn involving actual children, and the recipient knows or learns that the material so qualifies, he might be liable for possession of actual child porn, but that would be true regardless of the solicitation/offer ban.) And to the extent that such offers or solicitations may be said to reflect a belief or are intended to cause a belief that the material is obscene -- a complicated matter given the vagueness of the term "obscene" -- the problems that the law poses are not materially different from the problems posed by obscenity law in the first place.
So the opinion strikes me as generally quite sound, not much of a change in child pornography law, and an important but fully expected recognition of the solicitation/offer exception. The recognition of this exception requires the court to define and police the "important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality," the latter of which is protected under Brandenburg v. Ohio and many other cases; but the Court's recognition of this distinction, which I just quoted, and the necessity for such a distinction, leads me not to worry too much about the future on this score. So on balance it's not surprising to me that the result was a lopsided 7-2.