Chance favors the prepared mind - Louis Pasteur

False Advertising

by Manwhore

I don’t really know what to make of this development, so I am just going to throw it out there for the Thunderdome to ravage. Lee blog about this as something that had far reaching implications, and it turns out he might have been right!

WASHINGTON (AP) — The Supreme Court ruled Monday that leading someone to believe you have child pornography to show or exchange is a federal crime, brushing aside concerns that the law could apply to mainstream movies that depict adolescent sex, classic literature or even innocent e-mails that describe pictures of grandchildren.

The court, in a 7-2 decision, upheld a law aimed at cracking down on the flourishing online exchange of illicit images of children.

Joan Bertin, executive director of the National Coalition Against Censorship, said Justice Antonin Scalia narrow reading of the law in his majority opinion should result in “considerably less damage than it might otherwise have done.” But Bertin said aggressive prosecutors still could try to punish people for innocent activity and put them “through a terrible ordeal.”

The ruling upheld part of a 2003 law that also prohibits possession of child pornography. It replaced an earlier law the court had struck down as unconstitutional.

The new law sets a five-year mandatory prison term for promoting, or pandering, child pornography. It does not require that someone actually possesses child pornography.

Opponents have said the law could apply to movies like “Traffic” or “Titanic” that depict adolescent sex or the marketing of other material that may not be pornography.

Scalia, in his opinion for the court, said the law takes a reasonable approach to the issue by applying it to situations where the purveyor of the material believes or wants a listener to believe that he has actual child pornography.

Okay, before we all freak out about this development, let’s get some perspective on this issue. I first caught wind of this watching Fox News this morning. My initial reaction was shock at the far reaching implications, but apparently there is a checklist of criteria to be convicted for this crime. Do I think it will be left wide open for abuse? You bet your sweet ass it will. Will much of it hold up? I don’t know let’s see what the real meat of this upholding will entail.

First Amendment protections do not apply to “offers to provide or requests to obtain child pornography,” Scalia said.

Likewise, he said, the law does not cover “the sorts of sex scenes found in R-rated movies.”

So, the way I take it is that I don’t need to throw my copy of Blue Lagoon out, but I don’t feel like I can brag about having child sex tapes on a blog and produce that movie without some sort of repercussion. This is troublesome to me, and I’ll explain why. While I don’t think I’ve ever said something to this effect, it makes for some uneasiness about speaking my mind. To me, as an American, I cherish my right to speak my mind. I’ve been prone to saying things like I wish people would die, I’ve joked sexually on this blog and in life, and I’m sure everyone has made an off handed comment that was drug out of the trash that I’m guilty of myself.

I don’t feel a sense of ease about speaking my mind now. Not that I would ever go to the extreme that the convicted was in this case, but what I am particularly worried about is the implications of “soliciting” in the eyes of the federal court. I know what you all are thinking, but c’mon....think about how easy this can be twisted. We often mock the boy humping that Muslims are guilty of and I can honestly see if one said “here’s a pic of Mohammed and a boy” and linked to it, there could be an investigation sparked over it. That is seriously frightening. Before you dismiss me over it, think about this legally. What is the context of Mohammed, and a boy? Mohammed could be a living person, and so could the picture or so could the boy. In all instances if the undercover engaged there is meat for a case. Just that very small instance is frightening.

Do I feel that the intention of the law has merit? Yes. Absolutely. Child pornographers are brazen and taunt the law. Often times, the people who engage in this are highly intelligent and probably consider the taboo a part of the fetish. However, if RTFLC linked to nambla and stated “here’s the disgusting images of boy love” we might now be entangled in something bad. Really bad, like federal court bad.

Now for the defense of the ruling.

Scalia, in his opinion for the court, said the law takes a reasonable approach to the issue by applying it to situations where the purveyor of the material believes or wants a listener to believe that he has actual child pornography.

First Amendment protections do not apply to “offers to provide or requests to obtain child pornography,” Scalia said.

Likewise, he said, the law does not cover “the sorts of sex scenes found in R-rated movies.”

Justice David Souter, joined by Justice Ruth Bader Ginsburg, dissented. Souter said promotion of images that are not real children engaging in pornography still could be the basis for prosecution under the law. Possession of those images, on the other hand, may not be prosecuted, he said.

“I believe that maintaining the First Amendment protection of expression we have previously held to cover fake child pornography requires a limit to the law’s criminalization of pandering proposals,” Souter said.

Scalia said the law would not apply to a situation in which both sender and recipient were talking about virtual images, not real pictures.

Jay Sekulow, a conservative public interest lawyer who filed a brief on behalf of members of Congress in favor of the law, said the decision reflects the importance of trying to cut down on child pornography on the Internet.

“The court understood, perhaps for the first time, how difficult and troubling the proliferation of online pornography is,” said Sekulow, of the American Center for Law and Justice.

The case came to the Supreme Court after the 11th U.S. Circuit of Appeals struck down the provision in the 2003 law. The Atlanta-based court said it makes a crime out of merely talking about illegal images or possessing innocent material that someone else might believe was pornographic.

In the appeals court’s view, the law could apply to an e-mail sent by a grandparent and entitled “Good pics of kids in bed,” showing grandchildren dressed in pajamas.

But Scalia said the appeals court interpretation was unreasonable. “The prosecutions would be thrown out at the threshold,” he said.

In 2002, the court struck down key provisions of a 1996 child pornography law because they called into question legitimate educational, scientific or artistic depictions of youthful sex.

Congress responded the next year with the PROTECT Act, which contains the provision that was challenged in the current case.

Authorities arrested Michael Williams in an undercover operation aimed at fighting child exploitation on the Internet. A Secret Service agent engaged Williams in an Internet chat room, where they swapped non-pornographic photographs. Williams advertised himself as “Dad of toddler has ‘good’ pics of her an me for swap of your toddler pics, or live cam.”

After the initial photo exchange, Williams allegedly posted seven images of actual minors engaging in sexually explicit conduct. Agents who executed a search warrant found 22 child pornography images on Williams’ home computer.

Williams also was convicted of possession of child pornography. That conviction, and the resulting five-year prison term, was not challenged.

Okay, a little less frightening, baut again I am no lawyer, nor do I know the basis for which each case can be built. To me, I feel that in this example the court acted in accordance with the law. They have established intent, and when they pressed the case, they got what they were looking for. Scalia also makes a note that frivilous abuses of the law, as in the “grandma with pics of kids in pajamas” would not be entertained.

This ruling also has a lot to do with dealing directly with child pornography. I can understand why the law would want a weapon of strength with which to battle the prevelance of this problem. I don’t find anything bothersome with the intention, but much like we are always warned, when we give the government an inch, they can take a mile. Should they choose. What is particularly bothersome, is that it now make the words “child” and “pornography” litigious, and with the right DA and investigator could be tested in a myriad of scenarios.

Welcome back into the Thunderdome. Pay no attention to the blood stains on the floor. 

Comments

Posted by on 05/19/08 at 10:59 PM from

Damn government won’t keep its filthy hands off my kiddie pronz.

Posted by Manwhore on 05/19/08 at 11:04 PM from

Not exactly ryan. Damn government won’t even let me say I have it as a joke.

the supreme court ruling says possession is not 9/10 of the law. It’s if you are saying you are in possession that is now 9/10 of the law.

Posted by on 05/19/08 at 11:35 PM from

Damn government won’t even let me say I have it as a joke.

What kind of sick bastard would jokeabout having CP?  Oh, wait…

Yeah, this precedent that the Supreme Court is setting is rather disturbing.

Posted by on 05/20/08 at 02:40 AM from

I wonder how much undercover work by the police would fall under this.

Posted by HARLEY on 05/20/08 at 03:31 AM from

so where will the milly cyrus pics stand?

Posted by Ed Kline on 05/20/08 at 04:02 AM from

Scalia also makes a note that frivilous abuses of the law, as in the “grandma with pics of kids in pajamas” would not be entertained.

Oh how lovely it is that Scalia thinks that if push comes to shove, a person can have their conviction overturned if a weak judge and an overzealous prosecutor run into each other. Such a rare confluence of events I am sure. Or is he that delusional that he think every judge out there will enforce this law evenly without abuses...Scalia is losing it. First Kelo and now this, I have lost all faith. This is a first amendment issue outright. If I want to taunt some pedophile by refusing to share my imaginary kiddie porn, I can now got to jail?! Absolutely insane.

Posted by on 05/20/08 at 05:45 AM from

Oh how lovely it is that Scalia thinks that if push comes to shove, a person can have their conviction overturned if a weak judge and an overzealous prosecutor run into each other.

And that’s assuming that:

a) The person’s life hasn’t been ruined already by the initial conviction, including loss of job, entry on a sex offender’s register, all the publicity in their home town, etc

b) The person survives whatever period of time they spend in jail.

c) Their lawyer is competent enough to get it overturned at appeal.

If you want the law to come down like a ton of bricks on people involved in kiddie porn, then the standards prosecutors are held to have to be tighter, not continually loosening like this.

Posted by dwex on 05/20/08 at 05:59 AM from

If anyone is looking for the actual decision, here it is (PDF file). I haven’t read it yet.

Posted by on 05/20/08 at 06:04 AM from

“The prosecutions would be thrown out at the threshold”

This is the same guy who thinks that because of a new professionalism in our police force that it’s not necessary to allow the police to be held accountable legally. Seriously, take this law and apply it to something else. Say I post the following: Man I’d really like to smoke a joint. Could I be convicted of drug trafficking? I hate to defend a position that puts me in the camp with pedophiles, but to rely on prosecutors to be reasonable is not a position that I consider to be reasonable. The intent of a law is nice to consider but in practice it is the innocent people who will be locked up.

Posted by Manwhore on 05/20/08 at 07:54 AM from

Seriously, take this law and apply it to something else. Say I post the following: Man I’d really like to smoke a joint. Could I be convicted of drug trafficking?

I don’t believe it’s been done yet, but all of the groundwork seems to have been laid out today to cover pretty much any illicit activity, or the solicitation of online, doesn’t it?

Posted by dwex on 05/20/08 at 08:01 AM from

I’ve read through the decision. You guys should read it. I don’t generally agree with Scalia, but I think he got this one right.

Posted by Manwhore on 05/20/08 at 08:47 AM from

I’ve read through the decision. You guys should read it. I don’t generally agree with Scalia, but I think he got this one right.

How do you feel about the statements the critics have made about this case?

Posted by dwex on 05/20/08 at 09:25 AM from

At this point, based on my reading of the decision, they are overreacting. The language in the statute is actually pretty restrictive on what’s a prosecutable offense.

Do I think the statute might be abused by over-zealous prosecuters? Certainly. But no more than any other - there doesn’t appear to be anything here that lends itself to abuse - it’s a lot less vague than people apparently want us to believe.

As always, IANAL. Just my lay-person’s opinion from reading the decision.

Posted by Manwhore on 05/20/08 at 09:54 AM from

At this point, based on my reading of the decision, they are overreacting. The language in the statute is actually pretty restrictive on what’s a prosecutable offense.

Do I think the statute might be abused by over-zealous prosecuters? Certainly. But no more than any other - there doesn’t appear to be anything here that lends itself to abuse - it’s a lot less vague than people apparently want us to believe.

Yes, and I mentioned this in the post. there is a checklist to adhere to prosecuting the crime. We’ll see how easy or difficult this is to make any one coming after this to prosecute.

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