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11th Circuit Overturns Pandering Portion of PROTECT Act
By: Mark Kernes (Courtesy of
Posted: 4/10/2006

ATLANTA – In a ruling supportive of the First Amendment which was announced Thursday, the Eleventh U.S. Circuit Court of Appeals has ruled that 18 U.S.C. §2252A(a)(3)(B) of the PROTECT Act, which criminalizes the non-commercial pandering of images of "virtual child porn" and of non-obscene actual children, is unconstitutional.

In so ruling, the three-judge panel, which included Judge Rosemary Barkett, one of the best legal minds currently sitting on the federal judiciary, called into question the applicability of the U.S. Supreme Court’s 1966 ruling in Ginzburg v. United States to modern jurisprudence, and even implied that statutes governing obscenity may be void for vagueness.

The case at bar was United States v. Michael Williams, involving a defendant who exchanged photos of young children who were nude and/or engaged in sexual conduct with an undercover U.S. Secret Service agent — but the crux of the case revolved around how Williams described certain photos to the agent.

It began after Williams sent the Secret Service agent, dubbed here "LNM," several photos of children, all clothed except for the exposed "breast" of one two-year-old. LNM responded with a photo of his "daughter" – actually, a photo of a female adult which, under guidelines established in New York v. Ferber, the seminal child porn case, had been digitally regressed by computer to look underage.  

"After the initial photo exchange," the opinion recounts, "Williams claimed that he had nude photographs of his four-year-old daughter, stating ‘I’ve got hc [hard core] pictures of me and dau, and other guys eating her out – do you??’ Williams asked for additional pictures of LNM’s daughter."

Those photos were not forthcoming, and Williams later sent LNM a hyperlink to several photos of actual child porn – but note that the context here is of two adults trading photos without any mention of compensation by either party.

Eventually, a search warrant was issued for Williams’ house, and Williams was charged with several counts of possession of child pornography … and one count of pandering under the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, better known as the PROTECT Act.

A person is considered guilty of "pandering" under the PROTECT Act if the person knowingly "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 an obscene visual depiction of a minor engaging in sexually explicit conduct; or a visual depiction of an actual minor engaging in sexually explicit conduct."

Note that the "obscene visual depiction of a minor engaging in sexually explicit conduct" doesn’t have to be a real person; for purposes of the PROTECT Act, even a stick-figure drawing would do. And although the Act refers to "interstate or foreign commerce" in one clause, no money need exchange hands for an event to trigger the Act.

As most AVN and readers know, the PROTECT Act was enacted in part to attempt to overturn the rulings of the Supreme Court in Ashcroft v. Free Speech Coalition (FSC), the case which struck down certain portions of the Child Pornography Prevention Act of 1998 (CPPA) that dealt with "virtual" – computer-generated, hand-drawn or –painted – images of children, either nude and/or involved in sexual conduct.

As it applies specifically to this case, the high court in Free Speech Coalition struck down the portion of the CPPA which dealt with advertising that "convey[ed] the impression" that the material in question contained child porn images. In the Williams opinion, Judge Thomas M. Reavley noted that Congress tried to "remedy" that flaw in the CPPA by taking this "pandering" concept out of the "definitions" section of CPPA and giving it stand-alone status in the PROTECT Act.

"By moving the pandering provision from the definitions section to a stand-alone status, and using language that targets only the act of pandering, the new provision has shifted from regulation of the underlying material to regulation of the speech related to the material," Judge Reavley wrote. "This remedies the problem of penalizing individuals farther down the distribution chain for possessing images that, despite how they were marketed, are not illegal child pornography."

The PROTECT Act also brought back the "virtual" child which was removed from the CPPA by Free Speech Coalition, this time limiting the concept, according to the Williams opinion, to "any digital or computer-generated image that is ‘indistinguishable’ from that of a minor engaging in sexually explicit conduct," or "a visual depiction that has been created or modified to appear as an identifiable minor engaging in sexually explicit conduct." The Act also introduced a new definition of "obscene child pornography" for "virtual" children, requiring only that such imagery be sexually explicit and "lack[] serious literary, artistic, political, or scientific value" – the second prong of the "Miller test" for obscenity. And that’s where the problems begin.

"We begin our analysis," wrote Judge Reavley, "with the recognition that subsections (i) and (ii) of the PROTECT Act pandering provision capture perfectly what remains clearly restrictable child pornography under pre- and post-Free Speech Coalition Supreme Court jurisprudence:  obscene simulations of minors engaged in sexually explicit conduct and depictions of actual minors engaged in same. As reviewed above, the government may constitutionally regulate, on interstate commerce grounds, the transportation and distribution of obscene material, even if it is legal to hold privately (i.e. non-real child pornography), and may outlaw ‘real’ child pornography for all purposes, including private possession. However, the PROTECT Act pandering provision criminalizes not the speech expressed in the underlying materials described in (i) and (ii), but the speech promoting and soliciting such materials. The question before us is whether the restriction on that speech is too broad."

It was.

What the Eleventh Circuit Court found was that government unquestionably had the power to restrict commercial speech as long as the restrictions are narrowly tailored so as not to overly burden free speech, the speech is not misleading or soliciting unlawful activities, and the restrictions accomplish a legitimate governmental purpose. "False advertising" is the example used in the opinion.

"Because the First Amendment allows the absolute prohibition of both truthful advertising of an illegal product and false advertising of any product and because, in the commercial context, we have before us no challenge to the severity of punishment meted out for such behavior," Judge Reavley wrote, "the pandering provision would likely pass our muster as a prohibition of unprotected forms of commercial speech, if that were all it proscribed. However, the law is not limited to commercial exploitation and continues to sweep in non-commercial speech. Accordingly, we must move to the question of whether the restriction on such non-commercial speech is constitutionally overbroad."

It was.

"Because it is not limited to commercial speech but extends also to noncommercial promotion, presentation, distribution, and solicitation, we must subject the content-based restriction of the PROTECT Act pandering provision to strict scrutiny," the court ruled, "determining whether it represents the least restrictive means to advance the government’s compelling interest or instead sweeps in a substantial amount of protected speech. Under this analysis, we find the language of the provision problematic for three reasons."

"First, that pandered child pornography need only be ‘purported’ to fall under the prohibition of §2252A(a)(3)(B) means that promotional or speech is criminalized even when the touted materials are clean or non-existent. We echo Senator Leahy’s concern that the provision thus ‘federally criminalize[s] talking dirty over the Internet or the telephone when the person never possesses any material at all.’ In a non-commercial context, any promoter — be they a braggart, exaggerator, or outright liar — who claims to have illegal child pornography materials is a criminal punishable by up to twenty years in prison, even if what he or she actually has is a video of ‘Our Gang,’ a dirty handkerchief, or an empty pocket."  

"Further, while the commercial advertisement of an unlawful product or service is not constitutionally protected, this feature of the Supreme Court’s commercial speech doctrine does not apply to non-commercial speech, where the description or advocacy of illegal acts is fully protected unless under the narrow circumstances, not applicable here, of immediate incitement. The First Amendment plainly protects speech advocating or encouraging or approving of otherwise illegal activity, so long as it does not rise to ‘fighting word’ status. Thus, the non-commercial, non-inciteful promotion of illegal child pornography, even if repugnant, is protected speech under the First Amendment."

"Finally, we find particularly objectionable the criminalization of speech that ‘reflects the belief’ that materials constitute obscene synthetic or ‘real’ child pornography. Because no regard is given to the actual nature or even the existence of the underlying material, liability can be established based purely on promotional speech reflecting the deluded belief that real children are depicted in legal child erotica, or on promotional or solicitous speech reflecting that an individual finds certain depictions of children lascivious."

Judge Reavley delves further into this analysis, noting that, "Many pedophiles collect and are sexually stimulated by nonpornographic depictions of children such as commercially produced images of children in clothing catalogs, television, cinema, newspapers, and magazines —  otherwise innocent pictures that are not traditionally seen as child pornography and which non-pedophiles consider innocuous." Therefore, he concludes, such collectors are likely to run afoul of the PROTECT Act’s pandering prohibition simply by discussing, in sexual terms, material that no court would convict as child porn.

But what’s particularly gratifying about the Williams opinion is its frequent references to Ashcroft v. Free Speech Coalition.

"Freedom of the mind occupies a highly-protected position in our constitutional heritage," Judge Reavley wrote. "Even when an individual’s ideas concern immoral thoughts about images of children, the Supreme Court has steadfastly maintained the right to think freely. As the Court stated in Free Speech Coalition, ‘First Amendment freedoms are most in danger when the government seeks to control thought or justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.’"  

Would that the high court’s newest members hew to that standard!  

The Williams opinion also tackles the question of the precedential value of Ginzburg v. United States, where publisher Ralph Ginzburg was convicted of obscenity in large part because of the manner in which he advertised the materials for sale; for instance, mailing the material from the actual towns of "Intercourse, Pa." and "Blue Ball, Pa."

"We disagree with the district court that Ginzburg supports a prohibition of pandering as a stand-alone crime without regard to the legality, or even to the existence, of the pandered material," The Williams court found. "First, we note that, notwithstanding its brief mention by the Court in Free Speech Coalition, there is some question as to the continued vitality of the Ginzburg pandering rationale."  

The court went on to note that soon after Ginzburg, "the Supreme Court held in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. that truthful, non-misleading commercial speech is protected by the First Amendment, although to a lesser degree than protected non-commercial speech," and that "Justice Stevens more recently reiterated that, since Ginzburg was decided before the Court extended First Amendment protection to commercial speech, a proposal that otherwise legal material be deemed obscene on the basis of its titillating marketing, is ‘anachronistic.’ Consequently, although Ginzburg has not been overturned, its precedential value is questionable."  

Williams also challenged the PROTECT Act’s pandering section for vagueness, which led to a surprising analysis by Judge Reavley.

"Laws that are insufficiently clear are void for three reasons: (1) to avoid punishing people for behavior that they could not have known was illegal; (2) to avoid subjective enforcement of the laws based on arbitrary or discriminatory interpretations by government officers; and (3) to avoid any chilling effect on the exercise of sensitive First Amendment freedoms," Judge Reavley wrote. "Thus, to pass constitutional muster, statutes challenged as vague must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited and provide explicit standards for those who apply it to avoid arbitrary and discriminatory enforcement."

Moreover, the judge added, "Vagueness concerns are more acute when a law implicates First Amendment rights and a heightened level of clarity and precision is demanded of criminal statutes because their consequences are more severe."

If that isn’t a shot fired right into the heart of obscenity law, we don’t know what is. As all First Amendment scholars who deal with adult material know, there is no way a producer of sexually explicit adult material can know whether such material is "obscene" at any point until a jury returns a verdict.

In the instant case, Judge Reavley found the wording of the pandering prohibition to be impermissibly vague – but adult industry defenders should be prepared to cite this portion of the Williams decision the next time an adult feature is busted in the Eleventh Circuit.


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