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supreme court dispatches: Oral argument from the court.

Children of the PornThe Supreme Court contemplates lying about porn in the real world.

By Dahlia Lithwick
Posted Tuesday, Oct. 30, 2007, at 6:36 PM ET

(Continued from page 1)

Several members of the court think Clement goes too far today—further indeed than the government's brief—but Clement insists. In his view, under the new statute it's enough to invite criminal sanctions if you say, "Can you believe this? Take a peek!"

Breyer observes that the exchange of smutty images is a common schoolyard practice. It takes several more minutes of these bizarre hypos before Justice Samuel Alito—the newest member of the court and thus perhaps the most in touch with reality—points out that most people just don't randomly receive child porn in the mail, nor do real schoolchildren do a brisk trade in the stuff. This refocuses the justices enough to tackle Williams' lawyer, Richard Diaz, for all his goofy hypos. Those would be the same hypos they'd served up to Clement for the past 30 minutes.

When Diaz says people prosecuted for pandering are being punished for their "salacious thoughts" or puffed up distortions, Scalia leaps in for the kill: Diaz is arguing that falsely bragging that your child porn is real makes it uniquely protected speech. "Why is there some special protection when, in addition to pandering, you're also lying?" he asks. "Maybe there should be some extra penalty!"

Again Alito—the voice of noninsanity—is forced to ask for Diaz's "best, realistic examples to show the statute is overbroad." To which Breyer offers the puzzling suggestion that the opinion in this case might include an appendix listing all the overbroad applications (Lolita, Titanic, war-atrocities documentary ... ). Ginsburg points out that the court isn't usually "in the business of writing an appendix saying that this statute would not apply in certain cases." And when Diaz can't offer the court any empirical evidence of the statute's overbreadth and cites to again Titanic, Traffic, and Lolita (haven't they made any new smutty teen films since 2002?) the justices seem in the end convinced that this law sweeps in little protected speech after all. Breyer points out that Traffic and Lolita are not good examples for Diaz. Under the pandering provision, "I don't see how anyone could conceivably be prosecuted for that." Diaz takes a crack at persuading them that the statute might still chill protected speech. But nobody seems all that worried about the prospect of purveyors of child porn feeling slightly chilly.

In his rebuttal, Clement suggests this end to the case: The court should let the PROTECT Act stand as constitutional as applied to Michael Williams, who—let's recall—is in a real jail for owning real child porn. The wacky hypotheticals would be left to real life future plaintiffs. So if one of you receives a big envelope of kiddie porn in your mailbox tonight— it could happen—or your child brings some home from middle school, your first call should not be to your police chief or your neighbor. Call your lawyer. Tell her you want to be the new cruelly wronged pornographer. The justices are standing by.

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Dahlia Lithwick is a Slate senior editor.
Still of Sue Lyon in Lolita (1962) copyright 1978 by David Sutton/MPTV. All rights reserved.
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