Cengage Advantage Books: Fundamentals of Business Law 9th Edition by Roger LeRoy Miller

Exercise 4

The Supreme Court Upholds a Law That Prohibits Pandering Virtual Child Pornography
Millions of pornographic images of children are available on the Internet. Some are images of actual children engaged in sexual activity. Others are virtual (computer-generated) pornography-that is, images made to look like children engaged in sexual acts. Whereas child pornography is illegal, the United States Supreme Court has ruled that virtual pornography is legally protected under the First Amendment because it does not involve the exploitation of real children. In its ruling, the Supreme Court struck down as overly broad, and therefore unconstitutional, provisions of the Child Pornography Prevention Act (CPPA) of 1996. Among other things, the act prohibited any visual depiction including a "computer-generated image" that "is, or appears to be, of a minor engaging in sexually explicit conduct."
This ruling and the difficulty in distinguishing between real and virtual pornography have created problems for prosecutors. Before they can convict someone of disseminating child pornography on the Internet, they must prove that the images depict real children. To help remedy this problem, Congress enacted the Protect Act of 2003 (here, Protect stands for "Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today").
The Protect Act's Pandering Provisions
One of the Protect Act's many provisions prohibits misrepresenting virtual child pornography as actual child pornography. The act makes it a crime to knowingly advertise, present, distribute, or solicit "any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material" is illegal child pornography. Thus, it may be a crime to intentionally distribute virtual child pornography.
The Protect Act's "pandering" provision was challenged in a subsequent case, United States v. Williams. The defendant, Michael Williams, sent a message to an Internet chat room that read "Dad of Toddler has 'good' pics of her an [sic] me for swap of your toddler pics." A law enforcement agent responded by sending a private message to Williams that contained photos of a college-aged female, which were computer altered to look like photos of a ten-year-old girl. Williams requested explicit photos of the girl, but the agent did not respond. After that, Williams sent another public message that accused the agent of being a cop and included a hyperlink containing seven pictures of minors engaging in sexually explicit conduct.
Williams was arrested and charged with possession of child pornography and pandering material that appeared to be child pornography. He claimed that the Protect Act's pandering provision was-like its predecessor (the CPPA)-unconstitutionally overbroad and vague. (He later pleaded guilty to the charges but preserved the issue of constitutionality for appeal.)
Is the Protect Act Constitutional?
On appeal, the federal appellate court held that the pandering provision of the Protect Act was unconstitutional because it criminalized speech regarding child pornography. The court reasoned that, under the act, a person who distributes innocent pictures via the Internet (such as sending an e-mail labeled "good pictures of the kids in bed") could be penalized for offering child pornography.
The United States Supreme Court reversed that decision, ruling that the Protect Act was neither unconstitutionally overbroad nor impermissibly vague. The Court held that the statute was valid because it does not prohibit a substantial amount of protected speech. Rather, the act generally prohibits offers to provide, and requests to obtain, child pornog-raphy-both of which are unprotected speech. Thus, the act's pandering provisions remedied the constitutional defects of the CPPA, which had made it illegal to possess virtual child pornography.
FOR CRITICAL ANALYSIS
Why should it be illegal to "pander" virtual child pornography when it is not illegal to possess it?