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March 26, 2007

Justices to look at child porn

It's hard to resist a provocative headline upon learning, from this SCOTUSblog post, that the Supreme has granted cert in US v. Williams (06-694), a case concerning "the constitutionality of a 2003 law passed by Congress to criminalize distribution of child pornographic materials."  I do not know if there is a sentencing angle in Williams, but I suspect the buzz around this new SCOTUS case could impact debates over severe sentences for simply downloading child porn (such as the 200-year prison sentence given to former Phoenix high school teacher Morton Berger discussed here and here.)

Some possibly related posts:

UPDATE:  SCOTUSblog now has this further account of the child porn cert grant:

The case on pornography is U.S. v. Williams (06-694; cert. petition, reply). It involves the validity of the 2003 "PROTECT Act" that Congress passed to try to shore up federal controls on child porn after the Supreme Court struck down a 1996 federal law on the subject in Ashcroft v. Free Speech Coalition (2002).  The PROTECT Act is separate from the law struck down last week by a federal judge in Philadelphia, involving a federal law that solely targets Internet distribution of sexually explicit materials in order to protect children with access to computers and other online devices.

March 26, 2007 at 10:24 AM | Permalink


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This is confusing. I assume that everyone is talking about the 11th Circuit’s decision in Williams. http://www.ca11.uscourts.gov/opinions/ops/200415128.pdf . There, the 11th overturned only the conviction for “promotion” – but affirmed the Booker challenge.

Posted by: S.cotus | Mar 26, 2007 11:05:36 AM

I'm trying to understand the rational basis of this law. Though child porn is obviously different, it helps to translate the issue into a less emotional analogy. Drugs for example.

If I'm understanding the law, if I say I have pictures of drugs for sale (not actual drugs, just the pictures) I could get arrested and convicted for promoting the drug trade. Here's the kicker. I need not actually have any pictures of illegal drugs, or I could have pictures of legal drugs but say they are pictures of illegal drugs. In either case, I'm guilty.

Does that about sum it up?

It is reminiscent of the "Bongs for Jesus" case. If I have a "Bongs for Jesus" bumper sticker on my car is that probable cause to pull me over and search the car? More on point, could I be arrested for promoting the drug trade because of the bumper sticker?

Posted by: George | Mar 26, 2007 3:32:58 PM

Right, except that instead of a picture of a bong on your computer, or a picture of talcum powder labeled as cocaine, you have a picture of a 5 year old child being raped.
It's exactly the same.

Posted by: Brian | Mar 27, 2007 12:23:27 PM

Wrong. It's not exactly the same at all. Anyone who possesses that picture and/or distributes it is guilty of a crime, just as someone actually selling drugs over the Internet would be; the question is if they really don't possess the picture (or drugs) and aren't pandering any such pictures (selling drugs) because they don't have any to possess or sell.

Nice try, now try reading it.

Posted by: George | Mar 27, 2007 3:36:09 PM

Being that Morton Berger is my father, I would just like to say we need to look at creating special laws for the internet. Whether it's file sharing or child porn. We now have this new worldwide access of data. We need new laws. At least here in Arizona.

Posted by: Aaron | Apr 29, 2007 10:26:17 PM

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