The widespread use of the internet has created a new area of criminal prosecutions in Florida, other states and nationwide in the federal criminal justice system. Not only are illegal sexually explicit materials more readily available to consumers who, prior to the internet, did not have easy access to such materials, but now, according to a recent U.S. Supreme Court ruling, the mere communication over the internet, telephone, mail or other medium that one has illegal materials and offers them for distribution can be the basis for a criminal prosecution resulting in a lengthy prison sentence, even if those materials don't acutally exist. (I am beginning a jury trial in Milton, Florida on June 30, 2008 defending the so called "general manager" of an internet porn site who is charged with racketeering based upon distribution and production of obscene materials and prostitution from the Pensacola and Milton area. The case originally was filed in Pensacola, Escambia County, but after one year the prosecutor changed venues to Santa Rosa County, presumably a more conservative venue. The Pensacola porn web site case will be the topic of another article).
On May 19, 2008 the United States Supreme Court issued an opinion in U.S. v. Michael Williams, Case No. 06-694, by a 7-2 vote, which presented the issue of whether merely communicating to another individual that a person possessed child pornography for sale or distribution was illegal, even though there was no actual child pornography existed to be exchanged. Justice Antonin Scalia’s majority opinion in this case construed the statute so narrowly as to allay the First Amendment concerns of Justices Stevens and Breyer, who are considered more liberal, and win their full concurrence.
This issue has it's genesis in a new federal law that was implemented as a response to the U.S. Supreme Court's 2002 decision in Ashcroft v. Free Speech Coalition, which found the federal law unconstitutional because it punished someone who merely offered illegal materials when in fact the materials were not illegal. Ashcroft involved someone who was promoting adult pornography as child pornography when in fact the models were adults. After Ashcroft, in 2003 Congress rewrote the law to make it illegal to pander illegal materials even if the material do not actually exist. (The "Protect Act"). In the Williams case, the Justice Scalia wrote the opinion so narrowly that the case left open for interpretation freedom of speech issues as it relates to the mere discussion of Hollywood movies, like the Titanic, which involves sex between youth under 18 years of age. (Remember the sexually oriented scene where the two teens are having sex in a car located in the cargo area of the ship). The Court held that sexual expression which involves children is both constitutionally unprotected and illegal. It also reiterated it's continuing position that sexually explicit expression which does not depict actual children remains constitutionally protected unless it is legally obscene. The Court stated:
"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."
This opinion may cause concern for the producers and marketers of the genre of the adult entertainment industry who advertise sexually explicit "teen" materials. Does the mere use of the word "teen" in advertising it's material violate the new pandering law implemented by Congress? The Williams court did not address this issue. Most of these websites involve models that are 18 and over but some depict them in a manner to suggest they may be younger. These sites may run the risk of being prosecuted under the interpretation of the 2003 law that the Supreme Court upheld as constitutional in the Williams case.