In 2004, federal
agents caught Michael Williams in the act of attempting to exchange
pornographic images of children online. In an Internet chat room,
Williams boasted that he had “hard core” pictures of himself engaged
in sex acts with his four-year-old daughter. He also told an
undercover federal agent that he was willing to trade the photos for
pictures depicting other children in provocative poses.
Despite his claims,
Williams did not in fact have pornographic photographs of his
daughter. Nevertheless, Williams was prosecuted under a federal law
that outlaws the pandering of child pornography.
The Prosecutorial
Remedies and Other Tools to End the Exploitation of Children Today
(PROTECT) Act of 2003 was passed by Congress in an effort to provide
law enforcement officials and prosecutors the tools they need to
combat child pornography and the industry that has grown up around
it. Under this law, it is a crime to advertise, promote, distribute
or solicit material that leads another to believe it contains child
pornography—even if the material does not actually contain child
pornography.
Convicted under this
provision, Williams immediately appealed, claiming that the law was
vague and overbroad in violation of the First Amendment’s guarantee
of free speech. And a panel of judges on the U.S. Court of Appeals
for the Eleventh Circuit agreed that the law could be interpreted in
such a way as to criminalize speech that is completely unrelated to
child pornography.
Under the law as it
now stands, the appeals court reasoned, “any promoter—be they a
braggart, exaggerator, or outright liar—who claims to have illegal
pornography materials is a criminal punishable by up to twenty years
in prison, even if what he or she actually has is a video of ‘Our
Gang,’ a dirty handkerchief, or an empty pocket.” The appeals court
also voiced the concern that the law could be wrongly applied to an
e-mail sent by a grandparent and entitled “Good pics of kids in
bed,” showing grandchildren dressed in pajamas.
Now that the case is
before the U.S. Supreme Court, it has been portrayed as a battle
between those who advocate unbridled free speech and those who would
place limits on artistic expression. For example, opponents of the
law insist that it could be applied to movies like Traffic or
Titanic that depict adolescent sex. Yet all of that is merely legal
doublespeak to avoid talking about what is really at stake here.
Because when all is said and done, this case is about one thing
only: protecting children from those who would prey on them.
For starters, the
First Amendment was never intended to protect obscenity or child
pornography. And while I am one of the first to insist that
offensive and unpopular speech must be protected under the umbrella
of free speech, like all constitutional rights, there are limits to
this freedom. As Justice Oliver Wendell Holmes once observed, “The
most stringent protection of free speech would not protect a man
falsely shouting fire in a theatre and causing panic.” And pandering
child pornography is tantamount to shouting fire by inflaming those
who prey on the young. Someone is bound to get hurt.
According to experts
from the FBI’s Crimes Against Children Unit, there is a strong
connection between people who trade or possess child pornography and
those who molest children. As one FBI specialist explained to
Congress, “of the total number of child pornographers investigated
over the past several years, nearly 40 percent have been determined
to be child molesters.” Promoters of child pornography are well
aware of this. At least one child pornography website boasts that it
is “whetting the appetites of pedophiles everywhere.”
One of the U.S. Court
of Appeals’ reasons for declaring the PROTECT Act unconstitutional
was its concern that it could be a crime under the statute to offer
for sale “a copy of Disney’s ‘Snow White’ on false claims that it
contains depictions of minors engaged in sexually explicit conduct.”
Frankly, I don’t have
a problem with someone being charged under this law for falsely
peddling child porn. We have to draw the line somewhere, and
pandering child porn is just as bad as actually dealing in it.
If you really want to
understand what we’re up against, read the facts section of the
Appeals Court’s decision in the Williams case. It paints a
horrifying picture of exactly how young children are preyed upon. It
becomes evident that as the FBI has pointed out, the children are
groomed to become comfortable with the idea of experimenting with
sex through exposure to kiddie porn and, once their inhibitions have
been lowered and they have been desensitized to sex, manipulated to
perform sex acts.
It was this evil—and
it is evil—that Congress was attempting to eradicate when it passed
the PROTECT Act. As for the concern that genuine artistic endeavors
could be mistaken for child porn and consequently be targeted for
prosecution, it’s time that we started exercising a little more
common sense—and call on the courts to do so, as well.
We need strong laws
to shield our children from these horrors. And we should not allow
ourselves to be hoodwinked into believing that the Williams case has
anything to do with the First Amendment. As the Washington Post
noted, “To choke off demand for the product, those who peddle child
pornography must be held criminally liable—even if they exaggerate
or falsely advertise the material they hawk.”
Let’s protect our
children, not the child predators.
Constitutional attorney and
author John W. Whitehead is founder and president of The Rutherford
Institute. He can be contacted at
johnw@rutherford.org.
Information about The Rutherford Institute is available at
www.rutherford.org.
