Supreme Court Upholds Child Porn Mandatory Sentence
There are, thankfully, few people who would oppose laws against child pornography. If anything, most people would probably say that laws against and punishment for convictions regarding child pornography should be stricter and harsher. However, a recent U.S. Supreme Court decision has raised eyebrows about the scope of one child pornography law.
The Supreme Court recently upheld the criminal penalties for promoting or pandering child pornography in a 7-2 decision. The Associated Press reported that the ruling upheld part of a 2003 law that also prohibits possession of child pornography. The 2003 law replaced an earlier law that was found to be unconstitutional. The law sets a mandatory five-year prison term for people convicted of promoting or pandering child porn.
Because the law does not require that a person actually possess child pornography to be convicted and sentenced to the mandatory prison term, many opponents have argued that the law could be too broad and actually apply to movies that depict teenage sex, classic literature or innocent pictures of children, such as those shared by proud parents and grandparents through e-mail.
Supreme Court Justice Antonin Scalia put to rest any concerns about movie sex in his opinion, saying that there is no "possibility that virtual child pornography or sex between youthful-looking adult actors might be covered by the term 'simulated sexual intercourse.'" Scalia also pointed out that First Amendment rights do not apply to communications regarding attempts to obtain or provide child pornography.
Justices David Souter and Ruth Bader Ginsburg wrote the dissenting opinions. Souter said that promotion of images such as cartoons, drawings or computer generated graphics that are not real children engaging in sexual activity could be considered child pornography and prosecuted under the law while possession of these images may not be prosecuted. The Supreme Court has previously ruled that "fake" child pornography is protected under the First Amendment. Souter found that because of this previous ruling, the law's criminalization of pandering child pornography required the same limitations.
A ruling by the 11th U.S. Circuit of Appeals in Atlanta struck down the pandering and promoting part of the child pornography law, saying that under the law even talking about illegal images or possessing innocent materials that someone else might think are child pornography is a crime that carries a five year mandatory prison term.
After the court struck down key provisions of a 1996 child pornography law in 2002 because they called into question legitimate educational, scientific or artistic depictions of youthful sex, Congress passed the PROTECT Act which contains the pandering and promotion provision that is the subject of this recent Supreme Court ruling.
The Protect Act of 2003 is a comprehensive law that is intended to protect children from abuse and exploitation and provides harsh penalties for repeated child sex offenders and producers, promoters and owners of child pornography.
