Protecting Our Children or Upholding Free Speech: Does One Exclude the Other? United States v. Williams - Taylor Mcneill

• Citation: Vol. 60 No. 3
• Publication year: 2009

Casenote

Protecting Our Children or Upholding Free Speech: Does One Exclude the Other? United States v. Williams

I. Introduction

The advent of new technology has presented new and difficult challenges for a Congress intent on curbing the growing national problems posed by the child pornography industry. The difficulty lies in the seeming inability to construct a law that effectively minimizes the societal harms caused by child pornography without violating First Amendment rights guaranteed by the Constitution.¹ Every statute implemented to prevent the production and possession ofchild pornography has faced constitutional challenges, and Congress's most recent attempt, the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (PROTECT Act),² is no different. In United States v. Williams,³ the most recent case evaluating the constutionality of the PROTECT Act, the United States Supreme

Court held that the Act's pandering provision⁴ was constitutional.⁵ According to the Court, the PROTECT Act's pandering provision was neither overbroad nor impermissibly vague.⁶ For the time being, this decision identifies the PROTECT Act as a valuable tool for prosecutors charged with combating child pornography. However, like the child pornography statutes that came before it, the PROTECT Act will continue to face a bevy of constitutional challenges.

II. Factual Background

On April 26, 2004, Michael Williams signed into a public chat room under a sexually explicit screen name. Also in the chat room was a secret service agent, signed in under the screen name "Lisa n Miami."⁷ After Williams posted a message that read "Dad of toddler has 'good' pics of her an [sic] me for swap of your toddler pics, or live cam," the agent conversed with Williams and later exchanged nonpornographic pictures of children.⁸ Williams also claimed to have pictures of men molesting his four-year-old daughter. After growing suspicious that "Lisa n Miami" was an undercover agent, Williams asked the agent for additional pictures. When the agent did not comply, Williams posted a public message with an attached hyperlink. The hyperlink contained nude images of actual children between the ages of five and fifteen engaging in sexually explicit conduct. During the execution of a search warrant on Williams's home, agents confiscated two hard drives containing over twenty images of actual minors engaged in sexually explicit conduct.⁹

Williams was charged with one count of pandering child pornography and one count of possession of child pornography under the newly enacted Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (PROTECT Act).¹⁰ Williams pleaded guilty to both counts, reserving the right to challenge the constitutionality of the pandering conviction.¹¹

The United States District Court for the Southern District of Florida rejected Williams's challenge and sentenced him to sixty months imprisonment on each count. Williams then appealed to the United

States Court of Appeals for the Eleventh Circuit, again asserting that his conviction for promotion of child pornography under the PROTECT Act was facially unconstitutional. The Eleventh Circuit reversed Williams's conviction for pandering, holding that the statute was both overbroad and impermissibly vague.¹²

As a result of the disagreement among the lower courts, the United States Supreme Court granted certiorari and reversed the Eleventh Circuit's decision, holding that the PROTECT Act was neither overbroad under the First Amendment¹³ nor impermissibly vague under the Due Process Clause of the Fifth Amendment.¹⁴

III. Legal Background

In 1977 Congress enacted the Protection of Children Against Sexual Exploitation Act of 1977 (1977 Act)¹⁵ in response to growing concerns about the abuse and exploitation of children resulting from the use of children in the production of sexually explicit material. The 1977 Act was the first statute prohibiting child pornography and was meant to curb this growing national problem by prohibiting the production, receipt, possession, transmission, and sale of materials involving minors engaging in sexually explicit conduct.¹⁶ However, the 1977 Act did not have the far-reaching effect that Congress intended. Congress amended the 1977 Act with the Child Protection Act of 1984¹⁷ in response to the United States Supreme Court's decision in New York v. Ferber.¹⁸

In Ferber a bookstore owner was convicted under a New York statute¹⁹ that prohibited "persons from knowingly promoting sexual performances by children under the age of 16 by distributing material which depicts such performances."²⁰ The statute under which the bookstore owner was convicted did not require proof that the material was obscene. The New York Court ofAppeals reversed, holding that the New York statute violated the First Amendment.²¹ Although the court noted that the State's "'legitimate interest in protecting the welfare of minors . . . may transcend First Amendment concerns,'" it nevertheless held the statute unconstitutional as both underinclusive and over- broad.²²

The United States Supreme Court reversed the court of appeals decision, upholding the New York statute as constitutional and holding that child pornography is not entitled to First Amendment protection.²³ The Court held that the statute prohibiting the production of material showing children engaged in sexual conduct was constitutional regardless of whether the material was obscene.²⁴ The Court stressed the importance of preventing the sexual exploitation and abuse of children, noting that "the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child" and to society as a whole.²⁵ Essentially, the Court held that the state's interest in protecting children outweighed the need for First Amendment protection of child pornography.²⁶

In response to Ferber, under the 1984 amendments, the material in question no longer had to meet the legal requirements of "obscenity."²⁷ Instead, the material need only involve a minor engaged in sexually explicit conduct in order to be proscribable.²⁸

The advancement of technology and the increasing popularity of personal computers and the internet posed new and difficult problems for a Congress striving to prevent the dissemination of child pornography. With these concerns in mind, Congress in 1988 again amended the 1977 Act, further prohibiting the distribution of child pornography through the use of computers.²⁹

Congress also passed the Child Pornography Prevention Act of 1996 (CPPA)³⁰ to deal with new technology, criminalizing the possession of computer disks with three or more images of child pornography.³¹ Most importantly, the CPPA broadened the range of proscribable material to include "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture" that either "is, or appears to be, of a minor engaging in sexually explicit conduct"³² or "conveys the impression" that it depicts "a minor engaging in sexually explicit conduct."³³ The CPPA expanded the definition of child pornography in response to

new photographic and computer imaging technologies [that] make it possible to produce by electronic, mechanical, or other means, visual depictions of what appear to be children engaging in sexually explicit conduct that are virtually indistinguishable to the unsuspecting viewer from unretouched photographic images of actual children engaging in sexually explicit conduct.³⁴

In effect, these computer imaging technologies make it possible to create realistic images of children without actually using any real children in the production process. This material is often referred to as "virtual child pornography."³⁵

In 2002 the constitutionality of the CPPA's ban on virtual child pornography³⁶ was challenged in Ashcroft v. Free Speech Coalition.³⁷ In Free Speech Coalition, an adult-entertainment trade association— fearing that the CPPA could restrict its activities—brought suit, alleging that the ban on virtual child pornography was unconstitutionally overbroad.³⁸ The Court held that the new provisions in the CPPA were unconstitutional.³⁹ In reaching this decision, the Court noted that the definition of child pornography, which included virtual or computer-generated images of children engaged in sexually explicit conduct, was overbroad because it prohibited speech that was neither obscene—and therefore not a crime—nor created by the exploitation of actual children.⁴⁰ Thus, according to the Court, under this statute, an image produced without any minor children is prohibited if it "appear[s] to depict" a minor engaged in sexual activity.⁴¹ As a result, the CPPA can be read to prohibit speech that has "serious literary, artistic, political, or scientific value," even though no children were involved or harmed in the production process.⁴²

Furthermore, the CPPA defined child pornography as materials that are promoted "convey[ing] the impression" that the material contains sexually explicit depictions of minors, even if there are no such scenes.⁴³ Consequently, the statute prohibits the possession of material that is described or pandered as child pornography by someone earlier in the distribution chain even if no minors were actually used in the production process.⁴⁴ The Court in Free Speech Coalition held that because the "First Amendment requires a more precise restriction," the ban on virtual child pornography was overbroad and violated the First Amendment.⁴⁵

In response to the decision in Free Speech Coalition, Congress enacted the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (PROTECT Act).⁴⁶ The relevant portions of the pandering provision of the PROTECT Act are as follows:

Any person who . . . knowingly . . . advertises, promotes, presents, distributes, or...