The Supreme Court contemplates fake porn in the real world.

Oral argument from the court.
Oct. 30 2007 6:36 PM

Children of the Porn

The Supreme Court contemplates lying about porn in the real world.

Lolita. Click image to expand.
Lolita: Kiddie porn or not?

Fans of MTV's TheReal World will tell you there is nothing real about jamming a pack of twentysomethings in low-rise jeans and baseball caps into a small space and following them around with cameras. By the same token, oral argument at the Supreme Court today reveals that the justices are never more confusing (or confused) as when they purport to be dealing with what they think happens in the real world.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

The case is United States v. Williams, and it involves another effort by Congress to regulate child pornography. Last time didn't go so well. In 2002, the high court struck down provisions of the Child Pornography Prevention Act of 1996, which attempted to regulate "virtual child pornography" that used youthful adults or computer technology as stand-ins for real minors. Writing for the majority, Justice Anthony Kennedy noted that while child porn receives no First Amendment protection, CPPA banned too much protected speech, potentially including Romeo and Juliet ("She hath not seen the change of fourteen years"), Traffic, and American Beauty "without inquiry into the work's redeeming value." Kennedy's tortured sense of reality also required him to observe that "[a]rt and literature express the vital interest we all have in the formative years we ourselves once knew, when wounds can be so grievous, disappointment so profound, and mistaken choices so tragic, but when moral acts and self-fulfillment are still in reach." (Do you think he talks that way on Sundays at the Pancake House?)

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Congress came back at him with the federal PROTECT Act, a section of which targets anyone who "advertises, promotes, presents, distributes or solicits any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe" that it's illegal child pornography, even if the material isn't really child pornography. It's already a crime to own real kiddie porn. The new law criminalized passing it along with promises that it's the real thing.

The defendant in this case, Michael Williams, decided to play a game of kiddie-porn chicken with an undercover agent in an Internet chat room. He claimed to have "hard-core" images of his own 2-year-old daughter and agreed to swap them with the cop. When Williams received no dirty pictures in return, he accused the undercover agent of being a cop. The agent accused him of being a cop too. So, Williams cleverly posted a link to graphic child porn to prove that his sleaziness was for real. Agents raided his home and found two hard drives of child porn and no 2-year-old daughter. He was prosecuted under the PROTECT Act for actual possession of child porn, but also, under the pandering provision, for showing it off. Williams is now serving five years for the real porn. He appealed the pandering conviction, claiming this provision swept in speech protected under the First Amendment, in the same ways the old CPPA did. The 11th Circuit Court of Appeals agreed with Williams, finding the provision too broadly worded, and suggesting that you can't criminalize "the deluded belief that real children are depicted in legal child erotica," or speech that reveals only that the speaker is one sick loser.

Solicitor General Paul Clement has the unenviable job of defending the statute, and he finds himself in a pit of film-school quicksand. "What if I am a movie reviewer and I say a movie portrays child porn?" asks Chief Justice John Roberts. Is the reviewer liable under the statute? No, says Clement, that isn't "presentation or promotion." It's a review. Justice John Paul Stevens asks whether a documentary depicting atrocities in a war zone including child rape could also be punished. Clement says it might. Justice David Souter asks what happens if you receive child porn in the mail and call the chief of police hollering, "I just received child porn!" Clement says you're safe. So Justice Antonin Scalia twists that hypothetical so that now you're calling the neighbor instead of the police, to observe, "I got this disgusting child porn in the mail." Clement concedes the statute might apply in that case. Justice Stephen Breyer asks what happens when kids are swapping child porn in the schoolyard. Clement says that to be liable under the PROTECT Act, you  need not be selling or advertising the porn. It's enough to say you have it. The prospect of jailing huge packs of horny teens will soon dovetail beautifully with Kennedy's concern that documentaries about child rape in prisons be widely promoted.