Guest Blogger: The First Amendment, Pandering, and Pornography
by Camille Gear Rich, assistant professor of law at the University of Southern California Gould School of Law.
This term in United States v. Williams, the Supreme Court will turn its attention to Congress’s latest attempt to curb the market for child pornography. At issue is the “pandering” provision in the 2003 Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT Act”). The provision makes it illegal to solicit, distribute, present or offer “actual child pornography” — a sexually explicit visual representation of a real minor — or any visual representation of a minor engaging in obscene behavior.
The PROTECT Act’s pandering provision would garner almost no attention if it merely attempted to regulate real offers to transact in child pornography, cases where the material involved is indisputably illegal in nature. However, the pandering provision goes much further, criminalizing “purported offers”— offers that characterize otherwise lawful representations as illegal child pornography by emphasizing the material’s prurient appeal. The First Amendment question here is, if the pictures being “pandered” are lawful, can Congress criminalize speech drawing attention to the pictures’ sexual nature, or has Congress committed the ultimate First Amendment sin with its new pandering offense, prohibiting the mere expression of unpopular ideas?
Congress finds itself in this difficult position because, having achieved its goal of criminalizing activities associated with actual child pornography, it is now concerned with the distribution of “gateway” or marginal representations that it argues are part of the same market for pornographic representations of children. Congress sharpened its focus on actual child pornography after 1984 when the Supreme Court decided New York v. Ferber. In Ferber the Supreme Court held that actual child pornography was unprotected by the First Amendment not because of its content, but because of how it was produced — the sexual abuse of real children. Relying on this justification, legislatures enjoyed broad authority to criminalize the production and exchange of such material.
By the 1990s, however, Congress became concerned about gateway representations, namely, virtual child pornography— computer generated sexually explicit representations of children, as well as pandered material. Congress concluded that pandered material (which may or may not reach the legal definition of actual child pornography) and virtual pornography are a problem precisely because of their content: they whet pedophilic desire, facilitate pedophiles’ efforts to seduce children, and feed market demand for sexually explicit representations of real children.
Ferber,however, did not recognize Congressional authority to regulate these gateway representations, since these materials did not necessarily require children to be injured in their production. Consequently, when Congress enacted legislation targeting pandered and virtual child pornography, it entered into a new area of child pornography legislation. Unlike actual child pornography, these gateway representations were speech covered under the First Amendment. Additionally, because the provisions contemplated would touch not just commercial speech (low value speech), but included non-commercial speech (high value speech), it would be subject to strict scrutiny under the First Amendment.
Congress first attempted to regulate these gateway representations by enacting the 1996 Child Pornography Prevention Act (“CPPA”), but in 2002 the Supreme Court declared substantial portions of the statute unconstitutional in Ashcroft v. Free Speech Coalition. The CPPA prohibited the production of “virtual child pornography,” computer-generated sexually explicit pictures of children or images produced using youthful actors, as well as the possession of “pandered” materials, putatively legal representations styled as illegal material.
The Supreme Court rejected the “virtual pornography” provisions because they were overbroad and vague, and criminalized production of everything from computer-generated explicit pictures to artistically valuable contemporary interpretations of Romeo and Juliet. The pandering provision was constitutionally infirm because it prohibited mere “downstream possession” of material that at some earlier point was promoted by emphasizing its illicit nature. Congress responded to the Court one year later with the new PROTECT Act’s provisions.
The question the Supreme Court faces in Williams is whether the PROTECT Act’s pandering provision was a sufficient course correction to avoid the CPPA’s problems. Unlike the CPPA provision which punished mere possession of previously pandered material, the PROTECT Act criminalizes the act of pandering itself. The emphasis is on the speech involved, rather than the potential illegality of the underlying product, and charges will stand even when the underlying material linked to the charge is non-existent or of questionable origin.
The Government argues that the provision is necessary to correct problems caused by Free Speech Coalition, which created a new formidable defense for persons charged with actual child pornography offenses. Specifically, Free Speech Coalition allows defendants to claim they are being improperly prosecuted for innocent, First Amendment protected, “virtual” images. The pandering provision, the Government argues, avoids the problems caused by this defense, since the only question in the case is the illicit content of the defendant’s communication expressing the desire to exchange illegal material.
The pandering provision, however, threatens to chill parties engaged in wholly innocent, non-prurient speech, as well as those with unpopular views. The putative pedophile who emails another person the boys underwear section of the J.C. Penny catalogue, trumpeting the catalogue pictures’ alleged sexual content, is guilty under the PROTECT ACT of pandering. Yet this individual has done nothing except express her unpopular (admittedly disturbing) interpretation of an otherwise lawful series of pictures. Two mothers discussing the same publication by email could also trigger scrutiny, if their loose and free speech is read to emphasize the pictures’ prurient appeal. Shaking off these concerns, the Government argues that context is everything, the speaker’s intent and the reasonable reading of her comments will be deduced in each case, thereby saving the innocent from prosecution.
Critics note that the provision is too expansively worded and undertheorized to give defendants fair warning or to limit prosecutorial discretion. They argue that, since the representations involved need not be presented as evidence in pandering cases, the vague standards threaten to capture a wide range of people who make tongue in cheek comments about material that is highly unlikely to become part of the market for child pornography.
The Supreme Court also must determine whether pandering is similar to other criminal “attempt” offenses, which punish speech because it constitutes an affirmative effort to engage in criminal activity. Critics’ concern is that in child pornography cases, it will be difficult to separate criminal attempt speech — speech intended to facilitate the exchange of illegal pornographic items — from speech finding illicit content in legal material. For example, a person’s intent to purchase cocaine (a clearly illegal drug) is relatively simple to deduce from her communications because there is no dispute about what cocaine is and its illicit usage.
Determining whether a person intends to procure and use an illegal sexual representation of child might be a harder question, given the flexible legal standards courts use, and the context-specific, case by case determinations they make about whether a given set of representations constitute child pornography. These flexible standards are necessary because there is still cultural disagreement about whether certain representations of children are actually “lascivious” and therefore illegal in nature. In light of this fact, how can we trust prosecutors to know whether communications involving these same pictures of children communicate the belief that this material contains illegal pornographic content or merely reflect the view that the material is prurient but not illegal?
Given the changes in the Court’s composition, the resolution of the Williams case is unclear. We can be certain, however, that given the number of statues passed in the last twenty years, the PROTECT Act is not Congress’s last word on the subject of child pornography, and that attempts to regulate and police these representations must be watched to ensure they do not erode First Amendment protections.