Monday, May 19, 2008

Supreme Court upholds law that arguably could affect legitimate movies (online, DVD's, theaters) when in commerce

The Supreme Court today upheld a controversial provision (called colloquially the PROTECT Act) of USC 2252 a3b. The Cornell Law School link for the law is here. The case is United States v. Williams and concerns only a portion of the conviction of Mr. Williams. The concern was that possession or exhibition of movies or videos, DVD’s, etc, or even website videos of some scenes from movies like Steven Soderebergh’s "Traffic" could lead to prosecution under the “pandering and solicitation” provision of the child pornography law, even when using youthful-looking but legally adult (18+) actors in explicit scenes. The concern has been raised about many other films (like the indie “Mysterious Skin” and maybe “The Deep End”). Some people had suggested that prosecutions could happen if merely talking about a c.p. item was "pandering" it, and it is true that one can be prosecuted for trying to distribute an item not physically in one's possession, or even an item that does not exist but that the speaker and / or message recepient believes to exist. Justice Scalia, in the affirming opinion in the 7-2 vote, said that it could not be construed this way. His opinion does stress the concept "explicit" is clearly written into the law (p 10 and 11 of the slip opinion, below), and therefore the implied but visual portrayal of teen sex in some "R" rated movies (the rating system is mentioned) is not at risk. In some way, the underlying illegal material (even if only "believed" to exist) must involve images. There was dissent. Justice Souter felt that possession of certain images could not be prosecuted, but pandering of them could be.

The text of the Opinion is here on the Supreme Court's own site (PDF format) as a slip opinion. It could have minor editing later.

The AP story is by Mark Sherman and appears here.

The CNN story is by Bill Mears, the CNN Supreme Court Producer, and appears here.

Linda Greenhouse has a straightforward story on page A17 of the May 20 New York Times, here, and explains the details and circumstances of Mr. Williams's federal criminal convictions.

Fred Barnes has a particularly cogent report on p A01 of the May 20 Washington Post, here. This is the clearest discussion so far of the somewhat confusing issues involved. The Post also published a cogent editorial May 22, p A24, "Safeguarding Children
The Supreme Court upholds a carefully crafted law targeting child pornographers," link here.

There remains a nagging concern whether a prosecutor might not agree with Scalia’s analytical comments that legitimate artistic films or videos (or advertisements for them) are “safe” and go after them. The Post editorial expresses a concern that prosecutors might not stay within the very narrow implementation given by the justices, who apparently didn't want to send this issue back to Congress (again).

However, in practice, the most common method of enforcement will probably be chat room stings by law enforcement, similar in technique to what we saw on Dateline. Courts have repeatedly upheld such stings (also buttressed by USC 2242, the "coercion and enticement" law).

The Supreme Court had overturned a "similar" law in 2002 dealing with computer simulation of c.p., which, it was said, could have made "Romeo and Juliet" movies illegal.

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