| In Ashcroft v. Free Speech Coalition, the Supreme Court found the CPPA unconstitutional on numerous grounds. The pandering provision was deemed overbroad because it criminalized downstream possession of material described, or pandered, as child pornography by someone earlier in the distribution chain even if no minors were actually involved in the production. The Court criticized the provision because it criminalized speech based solely “on how the speech is presented” rather than on “what is depicted.”
Congress then came up with The PROTECT Act (Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today). It is built on the same platform as the CPPA with some important distinctions: (1) The Protect Act includes any digital image “that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.” (2) The requirement of showing obscenity as defined by the Miller test, which was not an element of the 1996 law. (3) Congress removed the pandering provision from the definition of child pornography and drafted a separate section prohibiting only virtual images of minors engaged in sexually explicit conduct that are knowingly advertised, promoted, presented, distributed or solicited in a manner that reflects the belief, or are intended to cause another to believe, that they are obscene. (4) Finally, by adding a knowledge requirement, Congress protects individuals in possession of materials pandered as child pornography by someone earlier in the distribution chain so long as those individuals do not pander the materials as or believe that the materials are child pornography.
In United States v. Williams, the Eleventh Circuit held that the pandering provision of the PROTECT Act was overbroad and impermissibly vague because it criminalized the speech of someone who touts material as child pornography even when in fact it is either nonexistent or not pornographic. In addressing the vagueness challenge, the court also found it problematic that the statute lacked any intent requirement. In the court's view, the provision could apply to an e-mail entitled "Good pics of kids in bed" sent by a grandparent, with innocent pictures of grandchildren in pajamas attached. As a result, the Eleventh Circuit declared the PROTECT Act unconstitutional. The Supreme Court reversed and found the PROTECT Act to be Constitutional.
Scalia reasoned as follows: A statute is facially invalid if it prohibits a substantial amount of protected speech. However, because the Court in Miller and Ferber had already proscribed the material involved in the speech – the child pornography - the pandering provision is Constitutional because it targets the “collateral speech”- the pandering which introduces this contraband material into the child pornography distribution network. First Amendment protection only extends to lawful speech; offers to engage in illegal transactions are categorically excluded from First Amendment protection. |