Paul Smith Discusses U.S. v. Williams
This morning, the Supreme Court will hear argument in the First Amendment case U.S. v. Williams. Camille Gear Rich, assistant professor of law at the University of Southern California Gould School of Law, wrote a guest blog entry (above) that discusses the case.
In the video below, Paul Smith, a partner with Jenner & Block LLP, examines Williams. Follow the link for full video from ACS' Supreme Court Preview. A transcript of Smith's remarks are available below the fold.
I thought I’d start with the non-election case, that’s the one main free speech case they have there is in a rather unsavory area of child pornography, which of course the Supreme Court has long held as an area where you can ban speech even if it’s not obscene, the theory having always been that child pornography is harmful for the children involved both in the production of the material and in the further distribution of it around the world.
In the Free Speech Coalition case, a couple of years ago, three or four years ago, the court held what Congress can’t ban is speech that looks like child pornography, but isn’t, so-called virtual child pornography that’s either generated by computers, or is done with actors who are over 18, but look like they’re not. And what happened then was Congress passed a new statute trying to get around that. The Congress was of the firm view that this kind of material may be protected speech, but it has bad effects. It whets the appetite of bad people. It creates a market. It creates law enforcement problems of various sorts.
And so what they decided to do in the new PROTECT Act was to ban pandering of speech as if it were child pornography, whether or not it really is. And so the law says if you send some material to somebody and you utter something that would suggest that you think it’s child pornography, or he should think it’s child pornography, whether it is or it isn’t, that’s pandering and that’s a felony. That was held unconstitutional in the lower courts. And so essentially, the problem in the case is that if you imagine somebody sending some images to somebody that are not child pornography, for whatever reason, and says – and you send an e-mail message that says “look at these hot pictures of kids” to your friend – it doesn’t have to be limited to a commercial context – that’s a potential felony and basically what the effect of upholding this law would be to say anytime anybody who’s sending material around the world, they would have to sort of put upfront, by the way, this is not really child pornography. This is virtual child pornography. Otherwise, they’d be risking pandering allegations.
The government’s main argument is, well, this kind of speech is either true and therefore illegal, because you are sending real child pornography, or it’s false because you’re trying to fool somebody into thinking it’s child pornography. But there is this kind of middle ground where you just say look at these hot pictures and they’re not child pornography. And I think the court is going to be concerned that this is an indirect way to try to overrule the Free Speech Coalition case, which was written importantly by Justice Kennedy. So I mean, you’d think there’s a reasonable prospect that the justice – well, surely, Justice Kennedy will control it and will likely, I think, be concerned about the Congress trying to overrule them.