Pandering Provision of Child Pornography Law Unconstitutional
The “pandering” provisions of the federal child pornography law are unconstitutionally overly-broad and vague, the Eleventh Circuit found, reversing a conviction under the statute.
The PROTECT Act, 18 U.S.C. Sec. 2252A(a)(3)(B) provides that it is a crime for any person to advertise, promote, distribute or solicit “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.
The court wrote that the pandering provision was not limited to commercial speech but also extended to non-commercial speech that requires a “strict scrutiny” review to determine if the provision “represents the least restrictive means to advance the government’s compelling interest or instead sweeps in a substantial amount of protected speech.” The appellate court found that under the statute pandering need only be “purported” as opposed to actual.
“The First Amendment plainly protects speech advocating or encouraging or approving of otherwise illegal activity, so as long as it does not rise to ‘fighting word’ status. Thus, the non-commercial, not-inciteful promotion of illegal child pornography, even if repugnant, is protected under the First Amendment.”
As a result, the court found the PROTECT Act “misses the target.” In addition, the court found that it was “not at all clear what is meant by promoting or soliciting material ‘in a manner that reflects the belief, or that is intended to cause another to believe’ that touted or desired material contains illegal child pornography. This language is so vague and standardless as to what may not be said that the public is left with no objective measure to which behavior can be conformed.”
The court said: “Let us consider, for example, an email entitled simply ‘Good Pics of kids in bed.’ Let us also image that the ‘pics’ are actually of toddlers in footie pajamas, sound asleep. Sender One is a proud and computer-savvy grandparent. Sender Two is a chronic forwarder of cute photographs with racy tongue-in-cheek subject lines. Sender Three is a convicted child molester who hopes to trade for more graphic photos with like-minded recipients. If what the statute required was a specific intent to traffic in illegal child pornography, the identity of the sender and the actual content of the photos would be probative. Senders One and Two would be off the hook while Sender Three may warrant further investigation.” As a result, the court found that “the pandering provision fails to convey the contours of its restriction with sufficient clarity to permit law-abiding persons to conform to its requirements. Because of this language, this provision is insusceptible of uniform interpretation and application by those charged with the responsibility of enforcing it. Accordingly, we find it impermissibly vague.”
United States of America v. Michael Williams, 11th Cir. No. 04-15128, April 6, 2006.