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Protecting children speech that crosses the line.

High School Musical, Camp Rock, and "iCarly" are the daily topics in a chat room frequented by tweens and teens, trolled by pedophiles, (1) and patrolled by undercover police officers. In an exchange between an undercover police officer posing as a 14-year-old girl and a 43-year-old male suspect pretending to be a 14-year-old girl, the latter asks,

[ILLUSTRATION OMITTED]

"Do u have nude pics of yourself?"

"Nooo! U?"

"I'm sending u mine u send me urs k?"

This scenario is an example of speech in the cyberage, where fingers on a keyboard serve as substitutes for the spoken word. Do the words and the actions taken to transmit them constitute pandering (2) or any other type of criminal conduct? The government has an interest in protecting children from exploitation and can criminalize activities related to child pornography, but can speech be included within this government net?

In United States v Williams, (3) the U.S. Supreme Court addressed the balance of liberty and security in the context of speech about child pornography. This case involved a constitutional challenge to the federal statute Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT), (4) which sought to criminalize the exploitation of children by focusing on speech. The Supreme Court's decision impacts how offenders can be criminally charged. This article explores the evolution of child pornography law, examines United States v. Williams, and then discusses the potential for charging panderers under the PROTECT act.

Background

The recent explosion of child pornography is a reprehensible side effect of a society that values free speech and uncensored expression. The Internet, the 21st century equivalent to the 18th century soapbox on the village green, also provides those with evil intent a convenient, anonymous vehicle to exploit children. That exploitation has reached nearly epidemic levels. In 1998, police cracked the "Wonderland Club," an Internet child pornography ring that involved members across 12 countries and whose chairman was an American, uncovering some 750,000 images of children. Membership rules required each member to possess at least 10,000 images of preteen children and to agree to exchange them with other members. Other rings promote the worst imaginable forms of child pornography, such as custom child pornography (images of child rape created for the consumer) and real-time child pornography, where members may watch the online rape of children as it occurs. In early 2006, federal authorities shut down an Internet Web site called "Kiddypics & Kiddyvids" that streamed video of live child molestations involving children as young as 18 months. Total federal prosecutions of child pornography cases increased more than 452 percent from 1997 to 2004. (5)

In just the last quarter of a century, Congress and the courts have expended a great deal of effort legislating and ruling on child pornography. The history of child pornography jurisprudence has demonstrated that the societal interest in protecting children from sexual exploitation trumps the free speech considerations associated with obscenity where adults are the subject matter. (6) The harm-to-children rationale has been the foundation of child pornography law, but does it apply to merely talking about child pornography?

Child pornography law started with the Supreme Court looking at the issue of obscenity. In 1973, the Supreme Court produced the three-prong Miller test as a means of determining whether something was obscene. (7) Using this Miller standard, the Supreme Court later determined that while people could possess obscene materials in the privacy of their homes, the government still could regulate distribution and receipt based on interstate commerce grounds. (8) In 1977, Congress passed the Protection of Children Against Sexual Exploitation Act of 1977, which, using the Miller standard, prohibited the use of children in the production of obscene material and criminalized the knowing distribution of such materials for commercial purposes. (9)

The first child pornography case came before the Supreme Court in 1982 in New York v. Ferber, (10) In Ferber, the Supreme Court unanimously rejected the Miller test as applied to child pornography and found that the harm done to children by the production, distribution, and possession of child pornography far outweighed the free speech exceptions of the Miller test." Armed with Ferber, Congress took the regulation of child pornography a step further with the Child Protection Act of 1984 and even further with the Child Sexual Abuse and Pornography Act of 1986. These acts broadened the definition of child pornography to include sexually suggestive and criminalized commercial advertisements and solicitations. (12)

With advances to technology and the ever-increasing role of computers to traffic in child pornography, the law needed to adapt accordingly. Congress passed the Child Protection and Obscenity Enforcement Act of 1988, making it illegal to use computers to transport, distribute, or receive child pornography. (13) The crime of possession of child pornography was validated by the Supreme Court in 1990 in the case of Osborne v. Ohio. (14) In this case, the Court distinguished possession of child pornography from the possession of First Amendment-protected adult obscene material.

In the Child Pornography Protection Act of 1996 (CPPA), Congress extended the government's reach. The CPPA was designed to deal with the difficulty prosecutors were facing with virtual child pornography, (15) material that purports to be child pornography but is either adults posing as children or, in some cases, computer generated. (16) The CPPA criminalized "any visual depiction [that] is, or appears to be, of a minor engaging in sexually explicit conduct." Additionally, the CPPA made criminal the possession and distribution of material that had been pandered as child pornography, regardless of whether it actually depicted a child. (17) Thus, a person could face prosecution for possessing unobjectionable material that someone else had pandered. (18)

The Supreme Court held these two provisions of the CPPA unconstitutional in Ash-croft v. Free Speech Coalition. (19) The virtual provision, the Court reasoned, did not really protect children; thus, it ran afoul of the First Amendment. The Court found the provision to be overbroad. One of the ramifications of Free Speech Coalition was it made prosecutions even more difficult with defendants claiming the images were not real and forcing prosecutors to prove beyond a reasonable doubt that the subjects in the images were, in fact, minors. In the context of the World Wide Web, that task took on global proportions. (20)

The PROTECT Act and United States v. Williams

PROTECT was passed in an effort to cure the deficiencies contained in the CPPA's pandering provision identified by the Court in Free Speech Coalition. (21) With the PROTECT Act, Congress changed tactics and tailored the statute to criminalize the act of pandering without regard to the actual nature of the material pandered. (22) In United States v. Williams, the Supreme Court addressed the extent to which this tactic worked. (23)

On April 26, 2004, respondent Michael Williams, using a sexually explicit screen name, signed in to a public Internet chat room. A U.S. Secret Service agent also had signed in to the chat room under the moniker "Lisa n Miami." The agent noticed that Williams had posted a message that read "Dad of toddler has 'good' pics of her an [sic] me for swap of your toddler pics, or live cam." The agent struck up a conversation with Williams, leading to an electronic exchange of nonpornographic pictures of children. The agent's picture was, in fact, a doctored photograph of an adult. Soon thereafter, Williams messaged that he had photographs of men molesting his 4-year-old daughter. Suspicious that "Lisa n Miami" was a law enforcement agent, Williams demanded that the agent produce additional pictures. When the agent did not, Williams posted the following public message in the chat room: "HERE ROOM; I CAN PUT UPLINK CUZ IM FOR REAL--SHE CANT." Appended to this declaration was a hyperlink that, when clicked, led to seven pictures of actual children, ages approximately 5 to 15, engaging in sexually explicit conduct and displaying their genitals. (24)

The U.S. Secret Service then obtained a search warrant for Williams' home, where agents seized two hard drives containing at least 22 images of real children engaged in sexually explicit conduct, some of it sadomasochistic. Williams was charged with one count of pandering child pornography (25) and one count of possessing child pornography (26) pursuant to the statute. He pleaded guilty to both counts but reserved the right to challenge the constitutionality of the pandering conviction. The district court rejected his challenge and sentenced him to concurrent 60-month sentences on the two counts. (27) The U.S. Court of Appeals for the Eleventh Circuit reversed the pandering conviction, holding that the statute was both overbroad and impermissibly vague. (28) The Supreme Court agreed to hear the case. (29)

Williams asserted that because his pandering conviction was based on his offer to provide child pornography to the U.S. Secret Service agent and, thus, was tied to conduct that was essentially just speech, Williams challenged the conviction on First Amendment grounds. Specifically, he alleged that the PROTECT Act was overbroad, meaning it prohibits a substantial amount of protected speech. (30) In writing for the Supreme Court, Justice Scalia described the issue, "On the one hand, the threat of enforcement of an overbroad law deters people from engaging in constitutionally protected speech, inhibiting the free exchange of ideas. (31) On the other hand, invalidating a law that in some of its applications is perfectly constitutional--particularly a law directed at conduct so antisocial that it has been made criminal--has obvious harmful effects." (32)

[ILLUSTRATION OMITTED]

To determine whether the statute intruded too far into protected First Amendment activity and, thus, is overbroad, the Court analyzed precisely what the statute covers. Generally speaking, the pandering provision (33) prohibits offers to provide and requests to obtain child pornography. (34) The statute does not require the actual existence of child pornography. In this respect, it differs from the statutes in Ferber, Osborne, and Free Speech Coalition, which prohibited the possession or distribution of child pornography. (35) Rather than targeting the underlying material, this statute criminalizes the speech that introduces such material into the child-pornography distribution network. (36)

Thus, an Internet user who solicits child pornography from an undercover agent violates the statute, even if the officer possesses no child pornography. Likewise, a person who advertises virtual child pornography as depicting actual children also falls within the reach of the statute. (37) The statute's definition of the material or purported material that may not be pandered or solicited is obscene material depicting (actual or virtual) children engaged in sexually explicit conduct and any other material depicting actual children engaged in sexually explicit conduct. (38) This definition is consistent with material targeted in previous statutes upheld by the Court. (39)

In upholding the constitutionality of the pandering provision contained in PROTECT, the Court carefully dissected its language. The Court first noted that the crime of pandering has an intent requirement, specifically "knowingly." (40) The Court then explored the choice of verbs used to describe the actions that constitute the criminal conduct--"advertises, promotes, presents, distributes, or solicits"--concluding that they clearly have a transactional meaning. The statute penalizes speech that accompanies or seeks to induce a transfer of child pornography--via reproduction or physical delivery--from one person to another. Justice Scalia, in writing for the Court, stated, "Three of the verbs, advertising, distributing, and soliciting, are steps taken in the course of an actual or proposed transfer of a product, typically, but not exclusively, in a commercial market." (41)

Justice Scalia further commented that the two remaining verbs--promotes and presents--must have commonsense meaning determined by their context. Promotes, in a list that includes solicits, distributes, and advertises, is most sensibly read to mean the act of recommending purported child pornography to another person for his acquisition. (42) Similarly, presents, in the context of the other verbs with which it is associated, means showing or offering the child pornography to another person with a view to his acquisition. (43) Justice Scalia clarified that the transactions covered by the statute need not be commercial, stating
  One could certainly "distribute" child pornography without expecting
  payment in return. Indeed, in much Internet file sharing of child
  pornography each participant makes his files available for free to
  other participants. (44)


According to the Court, "Distribution may involve sophisticated pedophile rings or organized crime groups that operate for profit but, in many cases, is carried out by individual amateurs who seek no financial reward." (45) "It would be an odd constitutional principle," Justice Scalia observed, "that permitted the government to prohibit offers to sell illegal drugs, but not offers to give them away for free." To run afoul of the statute, the speech need only accompany or seek to induce the transfer of child pornography from one person to another. (46)

Of critical importance to the statute's constitutionality are phrases designed to capture the defendant's belief regarding the material or what the defendant intends to cause another to believe. Specifically, the statute prohibits pandering any material "in a manner that reflects the belief or "in a manner ... that is intended to cause another to believe." These phrases require proof that the defendant subjectively believed that the materials he was either soliciting or purveying constituted materials that are either obscene or involve real children (i.e., materials that are not protected by the First Amendment).

The Supreme Court upheld the constitutionality of PROTECT, concluding that the statute only prohibits solicitations or offers relating to materials that the defendant believes, and intends others to believe, are materials Congress could constitutionally prohibit anyone from possessing. The fact that the defendant might sometimes be mistaken and that the materials might actually be constitutionally protected does not matter. "Offers to engage in illegal transactions arc categorically excluded from First Amendment protection." (47)

The Court also emphasized that as applied to materials that do not involve real children, the statute applies only to "sexually explicit conduct," which, the Court made clear, does not reach instances where "sexual intercourse ... is merely suggested." This leaves out sex scenes in R-rated movies where sex is simulated but, instead, applies where the "portrayal must cause a reasonable viewer to believe that the actors actually engaged in that conduct on camera." (48)

Conclusion

In the opening scenario between an undercover police officer posing as a 14-year-old girl and a 43-year-old male suspect pretending to be another 14-year-old girl, where has the crime of pandering occurred? Using Williams as our guide, the solicitation for the nude pictures of a 14-year-old would fit the definition of pandering under the PROTECT act. In his first entry, the suspect has clearly solicited material that fits the PROTECT definition of obscene material and, thereby, has pandered. In the last entry, he also offers to transmit what is intended to cause the undercover officer to believe is obscene material and then solicits again, pandering twice. So in this brief, three-line dialogue, the suspect has pandered three times.

[ILLUSTRATION OMITTED]

Officers would be wise to seek prosecutorial guidance regarding entrapment issues and, as is normal procedure in these types of undercover operations, avoid quid pro quo exchanges with subjects online. The PROTECT Act and the Williams case now provide law enforcement with a powerful weapon in the fight to protect against child exploitation.

Endnotes

(1) See Merriam-Webster Online, s.v. "Pedophile," http://www.m-w.com (accessed December 23, 2008). (One afflicted with pedophilia; a sexual perversion where children are the preferred sexual object.)

(2) Pandering is defined as the catering to or exploitation of the weaknesses of others, especially "to provide gratification for others' desires." See Merriam-Webster Online, s.v. "Pandering," http://www.m-w.com (accessed December 23, 2008). As a legal concept, pandering is most commonly associated with prostitution. In that context, pandering provisions are statutes penalizing various acts by intermediaries who engage in the commercial exploitation of prostitution and are aimed at those who, as agents, promote prostitution, rather than against the prostitutes themselves. The term pandering, in some instances, is applied by Congress and the courts to the promotion of obscenity. See, e.g., 39 U.S.C. [section] 3008 (prohibiting pandering advertisements of sexually provocative materials by mail), Ginzburg v. United States, 383 U.S. 463. 86 S. Ct. 942 (1966) (considering obscene nature of erotically advertised publications). Congress has characterized both the child pornography regulation at issue in this case (18 U.S.C. [section] 2252A(a)(3)(B)) and its unconstitutional predecessor (18 U.S.C. [section] 2256(8)(D) (1996)) as pandering provisions.

(3) United States v. Williams, 128 S. Ct. 1830(2008).

(4) Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, (PROTECT) 18 U.S.C. [section] 2252A(a)(3)(B).

(5) Statement of Laura H. Parsky, deputy asst. attorney general, Criminal Division, before the Comm. on Commerce, Science, and Transportation, U.S. Senate, Concerning Protecting Children on the Internet. January 19, 2006.

(6) United States v. Williams, 128 S. Ct. 1830 (2008).

(7) Miller v. California, 413 U. S. 15. 23-24 (1973); see also, e.g., Jenkins v. Georgia, 418 U.S. 153, 161 (1974).

(8) Stanley v. Georgia, 394 U.S. 557, 568 (1969).

(9) Protection of Children Against Sexual Exploitation Act of 1977.

(10) New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348(1982).

(11) Id.

(12) Child Protection Act of 1984.

(13) United States v. Williams, 444 F. 3d 1286 (11th Circuit 2006).

(14) Osborne v. Ohio, 495 U.S. 103, 109-11 (1990).

(15) Child Pornography Prevention Act of 1996 (CPPA).

(16) United States v. Williams, 444 F. 3d 1286 (11th Circuit 2006).

(17) United States v. Williams, 444 F. 3d 1286 (1lth Circuit 2006). (citing 18 U.S. C. [section] 2256(8)(D)).

(18) Id.

(19) Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389 (2002).

(20) Id.

(21) Id.

(22) Id.

(23) United States v. Williams, 128 S. Ct. 1830(2008).

(24) United States v. Williams, 444 F. 3d 1286 (11th Circuit 2006).

(25) [section] 2252A(a)(3)(B).

(26) [section] 2252A(a)(5)(B).

(27) No. 04-20299-CR-MIDDLE-BROOKS (SD Fla., Aug. 20, 2004), App. B to Pet. for Cert. 46a-69a.

(28) 444 F. 3d. at 1308-1309, 1.

(29) 549 U.S. 06-694 petition for writ of certiorari granted.

(30) Virginia v. Hicks, 539 U.S. 113, 119-120(2003).

(31) United States v. Williams, 444 F. 3d 1286 (11th Circuit 2006).

(32) See Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 485 (1989); Broadrick v. Oklahoma, 413 U. S. 601 615 (1973). Invalidation for overbreadth is "strong medicine [that is not to be] casually employed." Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U.S. 32, 39 (1999) (quoting Ferber, 458 U.S., at 769).

(33) [section] 2252A(a)(3)(B).

(34) reads as follows:

a) Any person who--

3) knowingly-- ...

B) advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains--

i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or

ii) a visual depiction of an actual minor engaging in sexually explicit conduct,. ...

shall be punished as provided in subsection (b) [section] 2252A(a)(3)(B) (2000 ed., Supp. V).

[section] 2256(2)(A) defines "sexually explicit conduct" as "actual or simulated--

i) sexual intercourse, including genital-genital, oralgenital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

ii) bestiality;

iii) masturbation;

iv) sadistic or masochistic abuse; or

v) lascivious exhibition of the genitals or pubic area of any person." Violation of [section] 2252A(a)(3)(B) incurs a minimum sentence of 5 years imprisonment and a maximum of 20 years. 18 U.S.C. [section] 2252A(b)(1).

(35) United States v. Williams, 128 S. Ct. 1830(2008).

(36) Id.

(37) Id.

(38) See Free Speech Coalition, 535 U.S., at 245-246 (stating that the First Amendment does not protect obscenity or pornography produced with actual children); id., at 256 (holding invalid the challenged provision of the CPPA because it "cover[ed] materials beyond the categories recognized in Ferber and Miller").

(39) 128 S. Ct. 1839, citing Ferber and Miller.

(40) United States v. Williams, 128 S. Ct. 1830(2008).

(41) Id

(42) See American Heritage Dictionary 1403 (4th ed. 2000) (def. 4: "To attempt to sell or popularize by advertising or publicity").

(43) See id., at 1388 (def. 3a: "To make a gift or award of").

(44) United States v. Williams, 128 S. Ct. 1830(2008).

(45) Child Pornography on the Internet.

(46) United States v. Williams, 128 S. Ct, 1830(2008).

(47) Id.

(48) United Slates v. Williams, 128 S. Ct. 1830(2008).

Assistant General Counsel King is a legal instructor at the FBI Academy.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

By CRAIG KING, J.D.
COPYRIGHT 2009 Federal Bureau of Investigation
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2009 Gale, Cengage Learning. All rights reserved.

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Title Annotation:Legal Digest
Author:King, Craig
Publication:The FBI Law Enforcement Bulletin
Geographic Code:1USA
Date:Jun 1, 2009
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