Child-porn law re-examined

WASHINGTON — The Supreme Court struggled Tuesday to determine if a provision of the nation's anti-child-pornography law goes too far and violates the freedom of speech protected by the First Amendment.

No one disputes it is a crime to have pornographic pictures of children or send them over the Internet. What remains unclear is whether it is illegal merely to talk about and offer pornographic pictures of children over the Internet.

Four years ago, Congress sought to strengthen the law against pornographers and pedophiles and made it a crime — carrying a five-year prison term — to use the computer to "advertise, promote (or) present" real or purported material with "sexually explicit" depictions of minors younger than 17.

Hearing arguments Tuesday in a case that challenges that portion of the law, the justices posed a series of hypothetical examples to the lawyers. Suppose, for example, a news team or a freelance cameraman takes videos of children being sexually abused in the brothels of a developing country, would advertising that video constitute a crime? What if a film reviewer describes a new movie — or an old one such as "Lolita" — and says it depicts a young girl having sex? What about a documentary that shows soldiers raping girls?

In defense of the law, U.S. Solicitor Gen. Paul Clement said the government intends to prosecute only those who knowingly exchange true pornography. "If the underlying movie is not child pornography, then truthful efforts to promote that movie would be captured," he said. "If you're taking a movie like 'Traffic' or 'American Beauty' ... you have nothing to worry about."

The example of the soldier raping girls proved more troublesome. "If the depiction were sufficiently graphic ... the person would be in possession of child pornography," Clement said. Nonetheless, he said the defendant could challenge the prosecution because he had no intent to make pornography.

The dispute arose last year when the U.S. Court of Appeals in Atlanta struck down the anti-pandering provision of the child-pornography law because it was too broad. It could cover, the judges said, an e-mail such as "Good pics of kids in bed," even if it were sent by a grandfather who is referring to toddlers in pajamas.

The ruling came in the case of a child pornographer, Michael Williams, of Key Largo, Fla. Williams exchanged messages online with an undercover agent and offered nude photos of a 4-year-old he described as his daughter. While he did not have such photos, agents found other child pornography on his home computer.

He was sentenced to five years in prison for possessing the child pornography and another five years for offering the nude photos online. The appeals court upheld his conviction for possession but voided the second conviction. Williams is doing 60 months in federal prison in Texas for the possession charge.

Tuesday, most of the justices signaled they were inclined to overturn the appeals court and uphold the law. Several also wondered why a true pornographer should go free based on examples of innocent persons who might be caught up in the law.

"What's your best realistic example?" asked Justice Samuel Alito, looking perturbed as the lawyer for Williams debated a series of hypothetical examples with the other justices.

When attorney Richard Diaz said movies such as "Titanic" or "Lolita" are described online as showing "hot teen sex," Chief Justice John Roberts cut him short. "Your client didn't produce 'Lolita,' " he said.