Court Upholds Child Pornography Statute

Abstract:     
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.

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

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