Pandering, Pretending, and the Law

Wendy Kaminer

Does the First Amendment protect the right to make statements that might be construed falsely as solicitations or offers of child pornography? The Supreme Court confronts this question this term in U.S. v. Willia ms, a case that doesn’t bode well for free speech.

In 2003, Congress passed a child pornography law (the PROTECT Act) that includes a prohibition on “knowingly . . . advertis(ing), promot(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” child porn.

“. . . Purported material”? “. . . in a manner that reflects a belief, or that is intended to cause another to believe. . . .”? If this language confuses you, take a number. The Eleventh Circuit Court of Appeals deemed it “so vague and standardless as to what may not be said” that people are left with no clear understanding of what may be said (increasing the likelihood of chilling protected speech). The Court added that this poorly drafted provision allows law-enforcement agents to make entirely subjective determinations about whether speech in fact “reflects the belief” or is “intended to cause another to believe” that the material it references is child porn. In other words, the law effectively allows government officials to estimate someone’s state of mind and prosecute him or her for it. That can’t be constitutional, as the Eleventh Circuit correctly ruled.

Nor should it be constitutional to treat people who actually or apparently pretend to traffic in child porn as harshly as people who do traffic in child porn. Child pornography is not protected speech: the Supreme Court ruled long ago, in New York v. Ferber, that people can be prosecuted for simple possession as well as production or distribution of it, and they are today, with a vengeance. (As I wrote in the June/July 2007 issue of Free Inquiry, a fifty-seven-year-old Arizona man with no criminal record was recently sentenced to two hundred years in prison for merely downloading twenty images of child porn. The Supreme Court declined to consider the constitutionality of his sentence.)

But a ban on possessing child porn surely should not justify a ban on discussing child porn, much less pretending to discuss it. I would have thought that much was obvious, if not to Congress then at least to the Supreme Court. Sad to say, I would have been wrong.

During oral arguments, the Court reportedly appeared skeptical of the constitutional challenge to the pandering provision. Legal reporters have speculated that the Court would uphold the statute, partly by construing it narrowly to discourage its use against people who discuss legal material without intending to imply that they’re discussing child porn.

The Court’s apparent hesitancy to strike down the pandering provision of the PROTECT Act probably reflects, in part, the facts of the case before it. Michael Williams, who challenged the provision, was convicted of pandering actual, not “purported,” child porn. (He was also convicted of possessing actual child porn; that conviction is not at issue and neither is his sentence, since he was sentenced concurrently on the pandering and possession charges.) His conduct doesn’t make the statute constitutional or any less of a threat to people engaged in protected speech, which is why the Court hears challenges to overly broad laws brought by people who could have been constitutionally prosecuted under laws that were more narrowly drafted. But the fact that Williams was not a victim of the vague, overly broad language of which he complains naturally makes it easier to rule against him, for reasons having nothing to do with the law. (Williams’s status as an actual child pornographer may have scared off the American Civil Liberties Union, which declined to join free-speech advocates in filing a friend-of-the-court brief supporting the constitutional challenge to the PROTECT Act.)

The danger of this case is not that an innocent man will go to prison or that a guilty one will escape on a “technicality.” (Again, Williams will remain convicted of possession even if the pandering conviction is reversed.) The danger is that the Court’s desire not to rule in favor of a child pornographer, even if he’s right on the law, will lead it to limit the legal doctrine by which it hears challenges to overbroad laws brought by guilty people on behalf of innocents whom the laws seem likely to ensnare. (Legal commentators Tony Mauro and Lyle Denniston noted that the justices discussed limiting this “overbreadth” doctrine.)

If the Court reverses the Eleventh Circuit and upholds the ban on pretend pandering, an innocent person will not go to prison in this case, but innocent people will be at real risk of imprisonment in the future. As the National Coalition Against Censorship and the First Amendment Project stressed in their amicus brief, the pandering provision, if upheld, would dangerously expand government power “to penalize and chill speech based on its content” and “present widespread opportunity for abuse by local law enforcement officials. The risk, demonstrated time and again, is that police officers and prosecutors, in their zeal to combat real child abuse, will charge innocent people with child pornography, solely on the basis of their ideas, fantasies, speech or expression.” These are frightening times. Whether provoked or enabled by fear of terrorism or hysteria about pornography, the government is increasingly inclined to prosecute the innocent in the belief that doing otherwise would let the guilty wander free.

Wendy Kaminer

Wendy Kaminer is a lawyer and social critic. Her latest book is Worst Instincts: Cowardice, Conformity, and the ACLU (Beacon Press, 2009).


Does the First Amendment protect the right to make statements that might be construed falsely as solicitations or offers of child pornography? The Supreme Court confronts this question this term in U.S. v. Willia ms, a case that doesn’t bode well for free speech. In 2003, Congress passed a child pornography law (the PROTECT Act) …

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