Court Upholds Child Pornography Statute

Craig Bradley

Indiana University Maurer School of Law


Trial Magazine, August 2008
Indiana Legal Studies Research Paper No. 109

In United States v. Williams, 553 U.S. (Dec. May 19, 2008) the Eleventh Circuit had struck down a federal statute that forbade the promotion or "pandering" of child pornography, regardless of whether such pornography actually existed. The circuit court reasoned that the statute was "overbroad," for the reasons stated in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). That is, since no such material needed to actually exist, the "child protection" rationale underlying the Supreme Court's exception to the general rule that merely pornographic material may not be regulated, was not present. Thus the statute unduly impeded free speech. The Supreme Court reversed by a 7-2 vote, upholding the statute. The Court accepted the government's argument that it was too hard to prove that "actual children" had been used in making a given piece of alleged child pornography, even though they almost invariably were. This, however, is the same rationale that the Court had rejected in Ashcroft. This article examines the details of the holding and explains why the three Justices who switched sides may have changed their minds.

Number of Pages in PDF File: 7

Keywords: Criminal Law, Statutory Interpretation, First Amendment, Child Pornography Statute

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Date posted: June 25, 2008 ; Last revised: June 30, 2013

Suggested Citation

Bradley, Craig, Court Upholds Child Pornography Statute (2008). Trial Magazine, August 2008; Indiana Legal Studies Research Paper No. 109. Available at SSRN: http://ssrn.com/abstract=1148378

Contact Information

Craig Bradley (Contact Author)
Indiana University Maurer School of Law ( email )
211 S. Indiana Avenue
Bloomington, IN 47405
United States
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