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?)

Advertisement

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.

TODAY IN SLATE

Doublex

Crying Rape

False rape accusations exist, and they are a serious problem.

Scotland Is Just the Beginning. Expect More Political Earthquakes in Europe.

I Bought the Huge iPhone. I’m Already Thinking of Returning It.

The Music Industry Is Ignoring Some of the Best Black Women Singing R&B

How Will You Carry Around Your Huge New iPhone? Apple Pants!

Medical Examiner

The Most Terrifying Thing About Ebola 

The disease threatens humanity by preying on humanity.

Television

The Other Huxtable Effect

Thirty years ago, The Cosby Show gave us one of TV’s great feminists.

Lifetime Didn’t Find the Steubenville Rape Case Dramatic Enough. So They Added a Little Self-Immolation.

No, New York Times, Shonda Rhimes Is Not an “Angry Black Woman” 

Brow Beat
Sept. 19 2014 1:39 PM Shonda Rhimes Is Not an “Angry Black Woman,” New York Times. Neither Are Her Characters.
Behold
Sept. 19 2014 1:11 PM An Up-Close Look at the U.S.–Mexico Border
  News & Politics
Politics
Sept. 19 2014 6:22 PM Blacks Don’t Have a Corporal Punishment Problem Americans do. But when blacks exhibit the same behaviors as others, it becomes part of a greater black pathology. 
  Business
Moneybox
Sept. 19 2014 6:35 PM Pabst Blue Ribbon is Being Sold to the Russians, Was So Over Anyway
  Life
Inside Higher Ed
Sept. 19 2014 1:34 PM Empty Seats, Fewer Donors? College football isn’t attracting the audience it used to.
  Double X
The XX Factor
Sept. 19 2014 4:58 PM Steubenville Gets the Lifetime Treatment (And a Cheerleader Erupts Into Flames)
  Slate Plus
Slate Picks
Sept. 19 2014 12:00 PM What Happened at Slate This Week? The Slatest editor tells us to read well-informed skepticism, media criticism, and more.
  Arts
Brow Beat
Sept. 19 2014 4:48 PM You Should Be Listening to Sbtrkt
  Technology
Future Tense
Sept. 19 2014 6:31 PM The One Big Problem With the Enormous New iPhone
  Health & Science
Medical Examiner
Sept. 19 2014 5:09 PM Did America Get Fat by Drinking Diet Soda?   A high-profile study points the finger at artificial sweeteners.
  Sports
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.