The Supremes reversed in U.S. v. Williams, holding that the Protect Act (Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today) passes constitutional muster.  Congress kept trying, and SCOTUS has repaid its efforts by giving its stamp of approval.  See kids, effort counts.

What’s less clear is what exactly the Protect Act protects against.  And that’s been the problem all along.  Eugene Volokh is a 1st Amendment guy, so my first thought is to turn to his analysis.

So this will make clear that solicitation, offer, and attempt to commit a wide range of crimes — including the distribution or receipt of child pornography — is indeed criminally punishable. And, contrary to Justice Souter’s dissent (joined by Justice Ginsburg), I don’t see how this will materially change the protection offered to distribution of nonobscene pictures that don’t actually depict real children, but instead show computer- or hand-drawn children, or adults that look like children: A distributor or recipient may avoid liability under the statute by simply offering or asking for “pictures of adults who look underage” or “computer-generated pictures that look like children.”

Well, that makes everything clear.  Well, not really.  Let see if we can cut to the chase.  According to the New York Times,

“Offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment,” Justice Antonin Scalia wrote for the 7-to-2 majority.

Got it.  The problem is that criminalizing the speech of making offer/requests for kiddie porn, but then not requiring that there actually be kiddie porn or that the porn under discussion actually involves children, disconnects the speech from the underlying bad act (child pornography). 

While I am no advocate for anything that involves harm to children (as regular readers here know and passersby should know, so that’s why I repeating myself here), I am concerned about the criminalizing of speech about crimes.  Even if I were inclined to turn a blind eye to this decision because of its kiddie porn component, Eugene’s analysis points out the larger problem.  I know, he didn’t mean to, but he still did.

Eugene argues that the holding is rather unremarkable and really does little to change the nature of 1st Amendment protections.

The Court read “advertis[ing], promot[ing], present[ing], distribut[ing], or solicit[ing]” as essentially involving solicitation or offer of a specific transaction in a particular item. That the item might not actually be obscenity or child pornography doesn’t matter because the general criminal law is that an attempt to commit a crime is punishable even if the attempt is factually impossible. Trying to buy illegal drugs, for instance, by soliciting someone to sell them to you is generally a criminal attempt even if the solicited seller was only going to deliver fake drugs rather than real ones. So the bottom line is that the prohibited conduct constitutes criminally punishable solicitation, offer, or attempt to get or give constitutionally unprotected material.

His example at the end of the paragraph is what grabs me.  Trying to buy illegal drugs is not a substantive state crime.  It is the possession or sale of drugs that is the crime.  If a fellow walks down Amsterdam Avenue asking if anybody knows where he can score some heroin, he has done nothing criminal.  It won’t help his sainthood application, but he’s not going to the can for it. 

Similarly, if a fellow stands on St. Nick asking passersby if they want some cheap blow, and then hands them a glassine of baby powder, he too has committed no substantive state crime, though he may have to run hard and fast to get away from some very disappointed purchasers.  There has to be real drugs involved, and there has to be an actual transfer involved, for the deal to be criminal. 

Before anyone raises conspiracy to commit the crime, allow me to point out that this is the very problem.  Federal conspiracy charges are imaginary crimes.  Offer to sell 5 kilos of coke that don’t exist and could never be consummated and you end up convicted for a fallacy.  This is one of those really bad things in the law, and part of the reason why conspiracy is called the “darling of the prosecution.” 

By taking bad law and bootstrapping it into new bad law, we don’t end up with good law.  Further, the Protect Act, further proof that acronym laws are inherently suspect, is not a conspiracy crime, but a substantive crime.  It is a crime to offer child pornography, even if the porn doesn’t exist or isn’t really kiddie porn.

Please understand, I maintain my view that anyone engaged in anything to do with kiddie porn is scum.  For those who enjoy it, you make me wretch.  But I can still separate my disgust from my ability to consider the ramifications of criminalizing the solicitation/request speech.

What is interesting is that this is an invention of law created of necessity caused by the pervasiveness of porn on the internet.  Before the internet, there were no doubt still the same number of people around who were interested in something as despicable as kiddie porn, but there was no similar outlet to offer or seek it.  The internet has empowered people who would otherwise have hidden their sickest urges a way to seek their kicks.  It’s allowed seemingly upstanding citizens to show that they’re really filthy cretins.  It has empowered a subculture that had nowhere to turn before. 

And so, one person’s opportunity has presented society with a horrible problem to address.  I can’t blame Congress for trying to deal with it, nor the Court for reaching a bit too far to find a way to allow it.   Naive me, I’m still blown away by the fact that the problem with kiddie porn is as pervasive as it is.  I cannot fathom it, and I am shocked and truly disgusted by it. 

But breaking down walls to allow the criminalization of speech when there is no underlying substantive crime is not the right solution. 

The law applies to “any person who knowingly advertises, promotes, presents, distributes, or solicits” the prohibited material, raising concerns about whether mainstream movies or innocent photographs of babies in the bath might invite prosecution.

Justice Scalia dismissed these concerns as “fanciful hypotheticals,” saying that such situations would either not give rise to prosecutions or, if they did, would be protected by the courts.

I have to part ways with Nino here.  If constitutionality of a law is dependent on the sound discretion of prosecutors not to be overzealous or abusive, or the oversight of district court judges to somehow stop indictments should the AUSAs get out of control, we’re in deep trouble.  History has proven that neither of these stopgaps work very well, and since when does constitutionality hinge on the government being trustworthy?

I foresee bald, fat, 45 year old federal agents sitting in front of government issued computers asking every newcoming to a chat room if they want some child porn.  It’s certainly easier work than going out on the street and protecting real people from real crimes.  Some perverse idiot, in a suit and tie with three kids at home, who is ashamed of his secret inclination to see some teenybopper blondie having sex is pushed to indulge his sickest fantasy, and responds.  Ta da, we have our newest federal inmate.  A small part of me says screw the idiot, he got what he deserved.  But a bigger part says we’ve gone over the edge.

And no matter how one feels about child pornography, or those who purport to deal in it, once words are disconnected from the evil that law seeks to stop, the possibilities are endless.