Mario Diaz
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I know that common sense tells you that this law is obviously not aimed at movie reviewers but at people like Mr. Williams who would pander illegal child pornography, including depictions of their own children. But we are talking about lawyers here, and this is the Supreme Court after all, so bear with me.

Respondent’s counsel even argued that this law would have a chilling effect on free speech and that people who wanted to speak out in relation to a movie would feel that they could not for fear of violating the law.

The Justices did not seem impressed with the argument. Justice Breyer, after several futile attempts to obtain an answer from Respondent’s Counsel as to the Government’s assertion that this type of material falls outside of the statute, said that the objective requirement of the statute would annul that line of reasoning.

Part of the test the court would use to evaluate the statute requires them to think of a reasonable person in the situation, not of some person somewhere in some extreme circumstance who might think that the reviewer of the film is actually promoting real illegal child pornography.

Justice Breyer: I don’t see under [the government’s] interpretation how anyone could conceivably be prosecuted even if he’s talking to a group who have never seen a movie. That isn’t a reasonable group of people.

Justice David Souter pushed even further, casting doubt on whether it would be substantial, and therefore not overly broad, even if there was some protected speech left somewhere.

Respondent’s Counsel kept arguing that the most egregious aspect of the law was that it punished the intent of distributing the purported illegal child pornography even if the person is lying and there is no real child pornography. That is clearly protected free speech in Respondent’s view.

Justice Antonin Scalia responded to this with another question that went unanswered by counsel.

Justice Scalia: I had thought that the purpose of the First Amendment was to protect speech that had some value and that the reason obscenity is excluded entirely from First Amendment protection is that it has no redeeming social value. What social value do you find in being able to lie about the content of what you’re offering to somebody else? You say somehow if you’re lying about it, oh, well, then the First Amendment protects that. I would think if you’re lying about it, it is clearer than ever the First Amendment doesn’t protect it. There is no social value in protecting lies.

Respondent’s Counsel seemed lost. … Puzzled. … Confused. At times it sounded like he wasn’t sure what role the First Amendment played in the case and argued more from the reasoning that the penalty was just too strict.

Justice Samuel Alito: And you think that’s protected by the First Amendment? Asking someone for child pornography is protected?

Respondent’s Counsel: First of all, it may not be protected by the First Amendment, but it shouldn’t be captured by this statute, which puts that 17-year-old in jail for 5-20 years.

Justice Ruth Bader Ginsburg: The only thing that limits the statute is the First Amendment. What else — you say it may not be covered by the First Amendment. What else gives you a right to challenge the statute?

But the most frustrating thing about these types of cases at the Supreme Court is that the facts of the case at hand seem to get lost in extreme hypotheticals, theories and dreams in a far-off land. So it was a breath of fresh air when Justice Anthony Kennedy tried to put this case into perspective.

Justice Kennedy: Your client here falls within none of these examples. He was convicted of having what everyone recognizes as not only child pornography but involving a very small child. And he knew what it was. And he — and he conveyed that belief. Given the fact that it would appear that child pornography is a growing problem, a serious problem on the Internet, maybe we should examine the overbreadth rule and just say that your client cannot make this challenge.

Although those are the facts of the case, challenges brought to the Supreme Court in these types of cases are heavily based on examples that have no meaning in the real world — hypotheticals, yes, but if you ask for concrete, real world examples, well, there are none.

Justice Ginsburg: I asked you have there been such cases? A lot of states have pandering laws now, and is the case that you posit a case that has occurred in any of those states?
Mr. Diaz: Your Honor, I cannot cite a specific example, but….

You get the picture.

If we are sincere in looking at the statute at hand and the facts presented by this case, there should be no question that there is no violation of the First Amendment right to free speech here. After all, the material at issue is illegal child pornography. The mere possession of it is a violation of the law. That was not challenged in this case.

It is clear that the federal government has a compelling interest in protecting children, and the statute goes after individuals with a specific intent to pander the material. A law that protects children in such a significant way should not be struck down simply because there might be one person somewhere in Fantasyland that, given the right circumstances, might say that it violates their free speech. That is nonsense.

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Mario Diaz

Mario Diaz is the Policy Director for Legal Issues at Concerned Women for America.

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