Jay Sekulow 'Protecting our Children'

The US Supreme Court upheld Legislation aimed at Eliminating Child Pornography. It is a decision that is most welcome and certainly overdue.

WASHINGTON, DC (Catholic Online) - The Supreme Court of the United States - in a 7-2 decision - upheld the constitutionality of the Protect Act of 2003 - a federal law that gives prosecutors new tools to target those who market and pander in online child pornography.

This is a significant victory that moves to protect the most vulnerable in our society - our children.

And, it is a victory for Congress, which has spent many years trying to come up with a law that would punish those responsible for the ever-increasing problem of child pornography on the Internet and clear constitutional hurdles - efforts that, until now, have not been successful.

At the American Center for Law and Justice, we represented 18 members of Congress - including five co-sponsors of the law - before the high court through an amicus brief which urged the Justices to overturn a decision by the U.S. Court of Appeals for the Eleventh Circuit and uphold the constitutionality of the Protect Act.

We're delighted that the Court did just that.

Writing for the majority, Justice Antonin Scalia said that the Protect Act "raises no constitutional problems whatever" and rejected the assertion that the statute violated the Free Speech Clause of the First Amendment - an argument presented by opponents that included the American Civil Liberties Union.

The language of the Protect Act is precise and well thought out. The Act prohibits any person from advertising, promoting, presenting, distributing or soliciting through the mails or computer, any material or purported material in a manner that reflects the belief that the material or purported material is an obscene visual depiction of a minor engaging in sexually explicit conduct or a visual depiction of an actual minor engaging in sexual conduct.

The defendant in the case, Michael Williams, challenged his conviction alleging that prosecution for pandering material that one does not possess would be unconstitutional under the Free Speech Clause. The ACLU challenged the constitutionality of the statute, asserting that the statute does not require the actual existence of child pornography and, therefore, would violate the Free Speech provision.

The Court clearly rejected that argument with Justice Scalia writing: "In sum, we hold that offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment." The Court also duly noted that "rather than targeting the underlying material, this statute bans the collateral speech that introduces such material into the child pornography distribution network.

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."

In our brief, we asserted that the Act was constitutional. It was designed to give U.S. Attorneys tough prosecutorial tools - including the use of prison time - to punish those who pander child pornography online. We asserted in our brief: "Congress's purpose for the pandering provision was to combat trafficking in child pornography by punishing those who pander it."

In his opinion, Justice Scalia held that the Court had "long held that obscene speech - sexually explicit material that violates fundamental notions of decency - is not protected by the First Amendment." The Court further noted that the government "may criminalize the possession of child pornography, even though it may not criminalize the mere possession of obscene material involving adults."

It is important to note that the Court clearly understood, perhaps for the first time, how difficult and troubling the proliferation of child pornography online really is.

Justice Scalia summed it up best:

"Child pornography harms and debases the most defenseless of our citizens. Both the State and Federal Governments have sought to suppress it for many years, only to find it proliferating through the new medium of the Internet. This Court held unconstitutional Congress's previous attempt to meet this new threat, and Congress responded with a carefully crafted attempt to eliminate the First Amendment problems we identified. As far as the provision at issue in this case is concerned, that effort was successful."

It took many years for us to reach this point. But, with this important decision, there's new hope that those who market and pander in child pornography finally will be held accountable for their despicable actions.

Jay Sekulow is Chief Counsel of the American Center for Law and Justice (ACLJ), which focuses on constitutional law and is based in Washington, D.C. The ACLJ represented 18 members of Congress - including five co-sponsors of the Protect Act - before the high court through its filing of an amicus brief which urged the Justices to uphold the constitutionality of the child porn law.

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