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May 19, 2008

Does Williams provide a tea leaf for Kennedy?

As detailed in this post at SCOTUSblog, the Supreme Court today upheld against a congressional child porn criminal provision against a First Amendment challenge:

[T]he Court — after years of repeatedly nullifying Congress’ efforts to stamp out child pornography on the Internet — finally upheld such a law, a 2003 statute that Congress shaped in a way that it hopes would spare it from the same fate as earlier attempts. In an opinion by Justice Antonin Scalia, the Court found that the 2003 law did not reach too far and that it was not vague in its scope.  The decision came on a 7-2 vote in United States v. Williams (06-694).

Williams in an interesting read, and I could not help but wonder if this closing paragraph from the majority opinion provides some hint as to the Court's developing views about the capital child rape in the Kennedy case:

Child pornography harms and debases the most defenseless of our citizens.  Both the State and Federal Governments have sought to suppress it for many years, only to find it proliferating through the new medium of the Internet. This Court held unconstitutional Congress’s previous attempt to meet this new threat, and Congress responded with a carefully crafted attempt to eliminate the First Amendment problems we identified. As far as the provision at issue in this case is concerned, that effort was successful.

May 19, 2008 at 10:52 AM | Permalink


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» US v. Williams from Sex Crimes
I've recovering from a nasty cold, but the USSC issuing an opinion in US v. Williams was enough to wake me from my Sudafed-induced daze. You might remember this was the case that Doug Berman said had definite sleeper potential. [Read More]

Tracked on May 19, 2008 8:42:45 PM


Was anyone as jarred as I was by the footnote in Souter's dissent wherein he referred to a child portrayed in a pornograph picture as a "model"?

Posted by: federalist | May 19, 2008 11:06:49 AM


I wouldn't read too much into it. Kennedy is having a good term (from the conservative perspective) so far, but conservatives have a habit of getting their good news in May and their bad news in June.

What might be more worrisome for death penalty opponents in the case from Louisiana is Justice Powell's concurring opinion in Coker. There, Powell all but says that the death penalty would be permissible in a case of aggravated child rape. Powell enjoyed a great deal of respect on the Court (and with the public), and if trouble is brewing for death penalty opponents, I suspect its source is more in Powell's concurring opinion than in what Justice Kennedy is saying today.

Posted by: Bill Otis | May 19, 2008 11:11:37 AM

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