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May 19, 2008

If you want to feel good about the Williams ruling...

check out this stunning article by Jamie Satterfield writing in the Knoxville News about efforts to combat child porn producers. The article is titled, "Local, national and global efforts track sex offenders who prey on children," and it highlights how the Internet has changed the dimesions of this problem:

For as long as humans have existed, there have been those among us who view children, even babies, as objects of sexual desire.... But the advent of the Internet has, in the words of a veteran federal prosecutor, "exploded" the crime into a societal issue so huge that it requires a host of agencies and a litany of initiatives to combat.

"I think we're certainly more aggressive in prosecuting these cases, but there's no doubt in my mind the Internet has exploded this," Knoxville Assistant U.S. Attorney Charles Atchley said. "Before, it was very difficult to obtain.  You had to visit a location that was selling the material. What the Internet has done is enable individuals in their own homes to go out and look for this material. Now they've got the whole world of it at their fingertips. It's just a terrible problem, a terrible problem."

After reading this article, it is hard not to cheer the Supreme Court's pro-prosecution ruling in Williams today.

May 19, 2008 at 12:24 PM | 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 8:42:53 PM


Oh, but noted "originalist" Justice Scalia wrote Williams, so clearly none of those policy or practical aspects of the case were relevant to him. Yeah, riiiight.

Posted by: Sentencing Observer | May 19, 2008 2:28:59 PM

"Whatever the name, the goal is the same: hunt down those who kidnap, rape and torture children and those who buy, collect and catalog videos and photographs of the attacks."

No one can disagree with that. But a story like this is like letting the arresting officer testify with no opportunity to put on a defense. Take this quote for example: "Eighty-five percent of the inmates were, in fact, contact sexual offenders, compared to only 26 percent known at the time of sentencing,' Hernandez wrote.

The story doesn't mention that the prison bureau in April ordered the paper withdrawn from a peer-reviewed academic journal where it had been accepted for publication, apparently concerned that the results might be misinterpreted.

And what child porn are we talking about? "Offenders now are younger," Evans added. "The victims are younger. There're more sadistic images. We're seeing much more videos."

But does that mean more recent child victims for the sake of porn and profit? Laurence O’Toole says no.

"Nowhere is this more apparent than in the field of kiddieporn. Anyone who objects to ever-increasing censorship in this panic-prone society is used to the immediate accusation of defending child pornographers, since the censorship-oriented mindset seems incapable of recognising that child sex abuse – illegal in every country in the world – is the crime, rather than the image, which is merely a record of the crime that should be used to prosecute offenders. But O’Toole takes the argument further by exploring what materials are actually out there, in magazines, videos and on the Internet.

"Child pornography was legal only in Denmark for a brief, insane period in the late ‘70s. Virtually every pornographic image that has been seized since then derives from that era. These are constantly recycled for each new medium, including CD-ROMs and the Internet. A 1992 academic study concluded that virtually no new child pornography had been produced on a commercial scale anywhere in the world over the last 15 years. Ironically, the main producer of paedophile materials in America is the US government, which for many years published the contact magazine ‘Wonderland’ as part of an ongoing entrapment project. Most of the photographs branded as child porn in this country are not pornographic, deriving from naturist journals and art publications. But as a number of dispiriting high-profile cases have shown, the zealots have ensured that any image of unclothed children is now assumed to have been made with sexual intent."

Is it even possible to know the truth? I also wonder how many in those chatrooms were law enforcement and why don't they bust those who are not?

This is not meant, yet, as a criticism of the Court's Williams opinion, but is only to suggest we may need more answers before using this story to help justify the death penalty for child abuse. Indeed, if we rely solely on this story, why not the death penalty for possession of child porn? As usual, my gripe is only with slanted stories and news.

Regarding the opinion, what if someone sends me an e-mail of a long law review article or whatever that at the bottom includes a link to child porn, and what if I forward it before reading to the bottom and seeing the link? How could I prove that wasn't intentional? The government will undoubtedly expand this same principle to other crimes as well. Kind of scary and I'll probably agree with the dissent after reading it. Other laws already had this crime covered.

Posted by: George | May 19, 2008 3:19:35 PM

I question those assertions. My understanding is that the Feds have a database of known child victims, and frequently they are able to match the images of children in offenders' collections to known child victims. A lot of people on the internet luring pre-teens to meet with them also take photos/videos of their encounters and trade them later. I've also seen cases involving parents who abuse and photograph their own children. Small-scale production of child pornography definitely exists, and those images get widely traded.

Posted by: Sentencing Observer | May 19, 2008 4:13:22 PM

Criminal activity such as child pornography doesn't stop at that one action. Abusing children in this way plants a seed in that child which often causes that child to grow up and unfortunately become a child abuser themselves. This crime not only needs laws, but there needs to be treatment. America often passes drug and sex laws that don't have common sense; we should be treating people with heavy drug addictions and who are child abusers. Child pornography crushes the spirit of the child and ruins the person who commits the crime. It's a terrible situation, and we need to come up with some real solutions because our currents ones aren't doing much.

Posted by: joe | May 19, 2008 4:25:27 PM

According to Souter, the kids are "models".

Serious makers of kiddie porn should be executed.

Posted by: federalist | May 19, 2008 4:33:56 PM

Ah, the nuanced & insightful commentary we've come to expect from federalist.

What term do you prefer Souter had used?

The "victims"? That seems a little loaded when the court is supposed to be a neutral arbiter and not, you know, an arm of the prosecution.

The "subjects"? Would you have railed against that for somehow depicting them too clinically, or as lacking agency?

The "participants"? Would you attack that as suggesting some element of voluntary participation?

Posted by: Sentencing Observer | May 19, 2008 5:17:54 PM

Victims. By definition, a child in a pornographic medium is a victim. That is not a loaded term.

Posted by: federalist | May 19, 2008 5:27:21 PM

Well, it is if part of the debate/issue is whether a given image is "fake" or real, computer-generated or spliced b/n kids & adults, etc

Certainly, any actual minor in piece of child pornography is a victim. No doubt -- child porn is a heinous, heinous thing.

"Model" does seem a clumsy term in this context, but it might make some sense given the kinds of images & arguments lurking in these constitutional cases.

Posted by: Sentencing Observer | May 19, 2008 5:33:22 PM

Read the footnote--it refers to an actual child. "Clumsy" is not the term I would use to describe it--it's more like an inappropriate euphemism.

I think it betrays an ivory tower mentality untroubled by the harshness of reality. Let the idea of calling a child in a pornographic video or picture a "model" sink in. And then contemplate the outlook of a man who would use such a euphemism.

Note: I am not accusing Souter of being soft of child porn or anything of the sort. I simply have issues with the facile characterization of a child in a pornographic media as a "model".

Posted by: federalist | May 19, 2008 5:52:02 PM

Lots of judges, including Justice Scalia, have referred to the "victims" as "models." See, e.g., Massachusetts v. Oakes. I don't see the big deal. It's a proper term, even if it is not emotionally loaded enough for federalist.

Posted by: | May 19, 2008 6:20:47 PM

My point is that the term, "model" is a euphemism. In any event, Scalia seems to have been talking about nude pictures, but I still don't like the term--especially where it's broad enough to pick up 5 year olds being raped. Does anyone think that the 5 year old is a "model"?

Posted by: federalist | May 19, 2008 6:40:21 PM

Far more important than the word "models" in FN1 is the entirely of FN3 of the dissent.

Justice Souter must respect court decorum, but there is a word for it, and tit for tat, that word is LIARS.

Posted by: George | May 19, 2008 7:18:45 PM

Its very difficult to cheer a decision which unneccesarily (see the facts of the case, Williams was going to get the same amount of time with both convictions as he would have with the child pornography conviction and as Souter pointed out in his dissent there is no evidence that the prosecutors are having problems prosecuting those types of cases (and as Souter also pointed out, a defendant who falsely claims to have child pornography can be prosecuted for fraud)) limits the First Amendment. The one thing that cheers me up is Stevens concurrence which makes it clear that the ruling specifically applies to the situation at hand only where it was shown that Williams made his statement in a pedophile chat room and had the specific intent to receive images of children. Thus, the Court said that most of the innocent speech which the 11th Circuit was worried would be covered by the law would not be covered and they narrowed the law to save its constitutionality.

Still interesting contrast with R.A.V. v. Minnesota where Scalia very much used the fact that there were other laws available to punish a teenager who burned a cross on the lawn of a Black family with this ruling, where Scalia seemed to give no weight to that fact that there are other legal remedies available for the prosecution.

Posted by: Zack | May 20, 2008 9:32:11 AM

"Stunning article"? This is a script that every prosecutor recites, and the DOJ has instructed their people to push. You'll hear it in Congressional testimony, press releases and countless news articles authored by complacent reporters.

The unsupported BOP statistic from Hernandez is a clue. Find someone who's been in his program, detailing what Hernandez does, and that will be a "stunning article."

Find someone who was prosecuted for a child porn charge even though the government knew the images were aduts, that would be a stunning article: http://amjur.wordpress.com/2007/09/29/alleged-child-porn-victims-identified%e2%80%94as-adults-prosecutor-ignores-evidence-insists-they-are-pre-teens-and-proceeds-with-prosecution/

Find out why the government is allowing the distribution of footage they prosecuted as child porn, that would be a stunning article: http://trewthe.wordpress.com/2008/02/23/why-are-the-us-feds-allowing-the-distribution-of-footage-they-prosecuted-as-child-porn/

This is not to minimize the seriousness of child porn, but an article citing phony statistics and scripted DOJ language does not support the Williams ruling.

Posted by: josh | May 20, 2008 5:02:23 PM


"This is not to minimize the seriousness of child porn, but an article citing phony statistics and scripted DOJ language does not support the Williams ruling."

I was struck by your statement that, "This is not to minimize the seriousness of child porn..." Could you repeat for us any language in your post that does anything OTHER than minimize it?

Posted by: Bill Otis | May 21, 2008 9:44:52 AM


Sure. The whole post. I was minimizing reliance on government talking heads who use unsupported statistics as fact, and give detailed desriptions of the most extreme images (per Gonzales instructions), that is then cited as justification for legislation or court rulings. This is an area where the government has repeatedly been caught misrepresenting statistics (remember the 20 billion dollar figure from 2 years ago, that no one would take credit for, and the 100,000 child porn web sites?).

We all know the seriousness of child exploitation, so why does the government need to manipulate and misrepresent and withhold to justify legislation? Why do they need to waste money and resources by taking commercial adult images into court and alleging they are minors?

The article cited did not make me feel better about Williams, nor should it. If that's the criteria, then it can be used for any criminal statute.

Posted by: josh | May 21, 2008 3:39:06 PM


I agree with you that how one "feels" about a statute is hardly a measure of its merit. It's not a matter of feeling.

On the other hand, if one wanted to emphasize the seriousness of kiddie porn, I would think the way to do that is to focus the discussion on the harm it does, rather than on the sins of those trying to put a stop to it.

[Full disclosure: I was an sttorney in the Department of Justice when Mr. Gonzales was the AG. I did not do any porn cases, however, and I have no firsthand knowledge of who in the government was saying what about the issue].

Posted by: Bill Otis | May 21, 2008 5:48:24 PM

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