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.
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?)
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.
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.
