Statement of Interest
NCAC, along with the First Amendment Project, has filed a friend-of-the-court brief in US v. Williams, a case pending before the Supreme Court. NCAC is concerned that in its efforts to curb child pornography, the government is pursuing a course that will apply overly broad restrictions to speech and images that are not obscene or pornographic, potentially criminalizing legitimate, constitutionally-protected forms of art and speech.
The key issue in the case is a provision in the 2003 Protect Act that applies not only to virtual child pornography, but also to film versions of “Lolita” and other fictional and simulated depictions of sexual activity by minors. In effect, the law requires a distributor of legal materials to state expressly that the material is “fake” in order to avoid the risk of criminal liability, and it imposes strict penalties on speech that is the product of mistake, confusion, or ambiguity. By subjecting a broad range of protected speech to severe criminal penalties, Section 2252A(a)(3)(B) runs directly afoul of the Court’s decision in Ashcroft v. Free Speech Coalition.
More on the case, from Scotusblog:
Michael Williams was convicted in federal district court of “pandering” (promoting) child pornography. The PROTECT Act of 2003 proscribes the pandering of “any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe” that the material is illegal child pornography. The Act represents Congress’s attempt to outlaw sexually explicit images of children – including both images of real children and computer-generated images of realistic virtual children. The Supreme Court struck down Congress’s previous effort as overbroad in Ashcroft v. Free Speech Coalition (00-795) 535 U.S. 234 (2002) 198 F.3d 1083, because the law as written could have outlawed artwork that was neither obscene nor child pornography. Williams argued that the PROTECT Act was similarly overbroad, but the district court held that the government can legitimately outlaw the pandering of material as child pornography, even if the material is not in fact child pornography.
The U.S. Court of Appeals for the Eleventh Circuit reversed the lower court and struck down the PROTECT Act as unconstitutionally overbroad. The Eleventh Circuit was unmoved by the government’s argument that prosecuting the promotion of virtual child pornography as real is necessary to combat the child porn market. The Circuit Court held that the Act’s prohibition was broad enough to include any “braggart, exaggerator, or outright liar” who claims in a non-commercial context to have child pornography but actually does not. Thus, the Act’s pandering provision prohibited protected speech as well as actual child pornography.