Monday's Supreme Court decision in United States v. Williams upholds against an overbreadth and vagueness challenge the federal Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today ("PROTECT") Act. Herewith, a few observations, beginning with the silly and moving to what I intend as a serious policy proposal.
1) Justice Scalia, who wrote the majority opinion, was apparently unamused by Congress's penchant for titling statutes with an eye towards descriptive acronyms (compare the USAPATRIOT Act). He said that Congress "produced legislation with the unlikely title of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 117 Stat. 650. We shall refer to it as the Act."
2) The challenged provision of the PROTECT Act forbids offers to provide not only genuine child pornography but also "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, or contains" child pornography, and defines child pornography in detail. It thus criminalizes "pandering" of virtual child pornography, so long as the panderer either believes the child porn is authentic or intends the target of the pandering to think it is authentic, or both. In a 2002 case, Ashcroft v. Free Speech Coalition, the Court had held that Congress could not apply the prohibition on possession of (non-obscene) child pornography to virtual child porn: Because the justification for forbidding child porn possession is the exploitation of children that occurs in producing it, where no real children are exploited, there is no basis for the prohibition, the Court said.
3) Dissenting in Monday's case, Justice Souter (joined by Justice Ginsburg) said that a pandering charge for virtual child porn also outruns the justification for the underlying prohibition. Is he right about that? I'm not sure, but it does strike me that both the majority and the dissent missed an important aspect of the issue.
4) The right question---or at least the right policy question---is what mix of prohibitions will shift demand for child pornography from real child porn (which exploits real children) to virtual child porn (which does not). How might we do that? The answer may depend on the tastes of pedophiles. Suppose, as seems plausible, that pedophiles prefer child porn that they believe shows real rather than virtual children. If so, the law ought to try to trick pedophiles into acquiring what they think is real child porn but is actually virtual child porn, because the latter doesn't harm real children. But the PROTECT Act gives a child porn peddler no incentive to do so. If the child porn peddler sells (or gives away) virtual child porn as though it were real, he is guilty of pandering, so he may as well sell (or give away) real child porn, and will choose to do so if real child porn is cheaper, which the government claims it is. By contrast, absent the PROTECT Act, the peddlers of child porn would risk prison for distributing real child porn but not for distributing virtual child porn as though it were real, and so would have an incentive to spend some extra money for the "safe harbor" of virtual child porn.
5) Although the analysis above leads to a solution that is consistent with the position taken by Justice Souter in dissent, his argument is all about preserving protected speech. I'm suggesting that he missed an opportunity to argue that in this instance the more speech-protective position may also end up being the more child-protective position.
6) Might Congress be interested in this analysis as a policy position? I suspect not. Despite the fact that child porn prohibitions are justified by reference to the exploitation of children that occurs in the creation of child porn, I suspect that many (probably most) legislators also vote for such prohibitions because they find the material disgusting, and I'll admit that I too find the idea of people being sexually aroused by children highly distasteful. But if no actual children are harmed in the making of the child porn and if looking at child porn does not make a pedophile more likely to molest an actual child than he otherwise would be, then the fact that we find the pedophile's tastes disgusting shouldn't be a basis for regulation---at least not when the underlying regulation may actually increase the risks to children.
Posted by Mike Dorf