March 26, 2007

Overbreadth and vagueness in the federal anti-child-porn law?

The Supreme Court has taken U.S. v. Williams, a case about the constitutionality of a child pornography law:
The [11th Circuit] court panel found the pandering provision of the PROTECT Act of 2003 was overbroad and impermissibly vague, saying that it criminalizes the speech of someone who touts material as child pornography when in fact it is clean or nonexistent.

In the appeals court's view, the pandering provision could apply to an e-mail entitled "Good pics of kids in bed" sent by a grandparent, with innocent pictures attached of grandchildren in pajamas.
Michael Williams, who got the advantage of this finding, sent sexually explicit photographs to an undercover agent (after initially exchanging non-pornographic photos of children).


Joe said...

I read a summary of the 11th circuit's opinion and assuming the summary got it right, agree with them. The law was very badly written and was more a statement of irrational outrage than an effort to actually "protect children."

This was one of those classic cases where looking like they were doing something was more important to politicians than actually doing something.

Simon said...

The opinion of the court below is here, and SCOTUSblog has links to the cert petition and answer.

paul a'barge said...

I hope SCOTUS overturns. I don't care how poorly the law is written, any legal action that puts back on the streets a monster such as this guy is a huge mistake.

Liberal, first-amendment legal fascists are the best friends child molesters have these days, and that especially includes the ACLU.

Gratefully, states are starting to enact the death sentence for repeat child molesters. Given a few years of productive harvest, these monsters will follow the dinosaurs into extinction.

Simon said...

Paul, I don't think release a possibility in this case. If I'm reading the opinion below correctly -- and I've really only had time to glance through the materials very quickly, so I could be totally misreading this -- defendant has a freestanding 60 month sentence upheld by the court of appeals against a Booker challenge, a conclusion unchallenged in the cert petitition. So one way or another, it seems like he's staying in jail, the question is whether he's there for sixty or 120 months. Anyone want to jump in and confirm that?

Revenant said...

Liberal, first-amendment legal fascists

Fascists are, as we all know, notorious for getting people OUT of prisons. It isn't widely known, but the term "brownshirt" originally referred to the cheap suits worn by Mussolini's Legal Defense Fund lawyers.

Too Many Jims said...

Actually Simon I don't think the choice is between 60 and 120. The sentence for pandering (which he won the appeal on) was 60 months and the sentence for possession (which he lost the "Booker" appeal on) was 60 months but they were to be served concurrently. Since Williams is not going to appeal the lower court's "Booker" decision, the difference is between 60 months or 60 months. In other words, no difference. Which probably explains why there is no response to the cert petition. I suspect he will be out in (at most) 2 and a half more years.

The provision in question is really poorly drafted. If it was upheld I could probably get convicted for sending pics of my kids to my parents if the subject line of the email was not worded correctly.

Simon said...

Jim, I'll defer, but if the result has no practical difference to the sentence, why isn't the case moot?

"[F]ederal courts are without power to decide questions that cannot affect the rights of litigants in the case before them, ...[because under Article III] the exercise of judicial power depends upon [requires] the existence of a case or controversy." DeFunis, 416 U.S. at 316 (internal quotation marks and citations omitted). What right is at issue here? Where's the controversy, if he gets released on the same day no matter what? Does it bear on his eligibility for parole?

Too Many Jims said...


I initially had that same idea and figured that the case might be a candidate for a limited but unanimous decision. I confess I have not looked at the mootness decisions recently but I suspect that it can be overcome because the government does have an interest in continued litigation. Namely, if the statute remains overturned, the government does not have the right to enforce the statute in that circuit.

My recollection of the mootness decisions (admittedly vague at this point) is that the doctrine is quite fluid and that the court can find a way to decide the case if it so chooses. While there may be a number of situations where the Supreme Court might "punt" I would think it would be ill advised to punt on an Article III court setting aside this statute.

Simon said...

"My recollection of the mootness decisions ... is that the doctrine is quite fluid and that the court can find a way to decide the case if it so chooses."

See text quoted here.

hdhouse said...

paul a'barge said...
"Liberal, first-amendment legal fascists are the best friends child molesters have these days, and that especially includes the ACLU."

You know Paul, its just this kind of stupid if not idiotic spewing that makes discussion impossible. Ann should ban you.

Why do you feel you have to resort to that kinda of slimeball attack? Why is that? What in your upbringing permits you to feel a senseles comment like that ok?