Orrin Hatch

WASHINGTON — The Supreme Court ruled Monday that leading someone to believe you have child pornography to show or exchange is a federal crime, brushing aside concerns that the law could apply to mainstream movies that depict adolescent sex, classic literature or even innocent e-mails that describe pictures of grandchildren.

The court, in a 7-2 decision, upheld that the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today or PROTECT Act, which Sen. Orrin Hatch, R-Utah, pushed in 2003, is constitutional.

"The First Amendment is not an altar on which we must sacrifice our children, and Congress must be as relentless in protecting children as are those who would exploit them," Hatch said. "With the PROTECT Act, Congress followed the Supreme Court's guidance and focused on speech that feeds the consumption of child pornography and the exploitation of children. I'm pleased the Supreme Court has now validated this important step in the ongoing effort to protect our children and grandchildren from the monstrous evil perpetrated by pornographers."

Joan Bertin, executive director of the National Coalition Against Censorship, said Justice Antonin Scalia's narrow reading of the law in his majority opinion should result in "considerably less damage than it might otherwise have done." But Bertin said aggressive prosecutors still could try to punish people for innocent activity and put them "through a terrible ordeal."

The ruling also upheld part of the law that prohibits possession of child pornography. It replaced an earlier law the court had struck down as unconstitutional.

The new law sets a five-year mandatory prison term for promoting, or

pandering, child pornography. It does not require that someone actually possesses child pornography.

Hatch, former chairman of the Senate Judiciary Committee, has joined Sen. Arlen Specter, R-Pa., and Joseph Biden, D-Del., in introducing the Child Protection Improvement Act of 2008, which would make the pilot program created by the PROTECT Act that allows youth-service organizations to run FBI background checks on prospective volunteers permanent.

"There have been some tragic cases of volunteers who were really wolves in sheep's clothing — criminals who exploited youth organizations to perpetrate crimes on children," Hatch said. "So we need robust laws that will weed these prospective volunteers out before, not after, they harm children."

Opponents have said the law upheld Monday by the court could apply to movies like "Traffic" or "Titanic" that depict adolescent sex or the marketing of other material that may not be pornography.

Scalia, in his opinion for the court, said the law takes a reasonable approach to the issue by applying it to situations where the purveyor of the material believes or wants a listener to believe that he has actual child pornography.

First Amendment protections do not apply to "offers to provide or requests to obtain child pornography," Scalia said.

Likewise, he said, the law does not cover "the sorts of sex scenes found in R-rated movies."

Justice David Souter, joined by Justice Ruth Bader Ginsburg, dissented. Souter said promotion of images that are not real children engaging in pornography still could be the basis for prosecution under the law. Possession of those images, on the other hand, may not be prosecuted, he said.

"I believe that maintaining the First Amendment protection of expression we have previously held to cover fake child pornography requires a limit to the law's criminalization of pandering proposals," Souter said.

Scalia said the law would not apply to a situation in which both sender and recipient were talking about virtual images, not real pictures.

Jay Sekulow, a conservative public interest lawyer who filed a brief on behalf of members of Congress in favor of the law, said the decision reflects the importance of trying to cut down on child pornography on the Internet.

"The court understood, perhaps for the first time, how difficult and troubling the proliferation of online pornography is," said Sekulow, of the American Center for Law and Justice.

The case came to the Supreme Court after the 11th U.S. Circuit of Appeals struck down the provision in the 2003 law. The Atlanta-based court said it makes a crime out of merely talking about illegal images or possessing innocent material that someone else might believe was pornographic.

In the appeals court's view, the law could apply to an e-mail sent by a grandparent and entitled "Good pics of kids in bed," showing grandchildren dressed in pajamas.

But Scalia said the appeals court interpretation was unreasonable. "The prosecutions would be thrown out at the threshold," he said.

In 2002, the court struck down key provisions of a 1996 child pornography law because they called into question legitimate educational, scientific or artistic depictions of youthful sex.

Congress responded the next year with the PROTECT Act, which contains the provision that was challenged in the current case.

Authorities arrested Michael Williams in an undercover operation aimed at fighting child exploitation on the Internet. A Secret Service agent engaged Williams in an Internet chat room, where they swapped non-pornographic photographs. Williams advertised himself as "Dad of toddler has 'good' pics of her an me for swap of your toddler pics, or live cam."

After the initial photo exchange, Williams allegedly posted seven images of actual minors engaging in sexually explicit conduct. Agents who executed a search warrant found 22 child pornography images on Williams' home computer.

Williams also was convicted of possession of child pornography. That conviction, and the resulting five-year prison term, was not challenged.

The case is U.S. v. Williams, 06-694.


Contributing: Suzanne Struglinski