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Congress’ quick fix to a child pornography law struck down in 2002 by the U.S. Supreme Court failed last week before the 11th U.S. Circuit Court of Appeals. The April 6 decision, the first by a federal appeals court declaring a particular provision of the law unconstitutional, may have minimal practical impact given the relatively rare use of that provision. But it is significant to First Amendment jurisprduence and will no doubt give prosecutors and legislators headaches. The provision struck made it a felony�carrying at least five years of prison time�to promote, distribute or solicit material in a way intended to cause others to believe that the material is legally obscene or depicts a minor engaging in sexually explicit conduct. A three-judge panel found the provision against promotion of such material vague and overbroad because, in essence, it could criminalize legal speech. The panel’s opinion was written by Senior Judge Thomas M. Reavley, visiting from the 5th Circuit, and joined by 11th Circuit Judges Rosemary Barkett and Charles R. Wilson. The provision struck by the court�sometimes called the “pandering” provision�is part of the federal legislation known as the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003. Signed by President Bush in 2003, the legislation was Congress’ response to a 2002 U.S. Supreme Court decision that struck down the prior law. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). That decision, which split the court 6-3, struck down as overbroad an aspect of the prior statute that included within the definition of child pornography computer-generated images that appeared to show minors engaged in sexually explicit conduct. Writing for the majority, Justice Anthony M. Kennedy also found fault with the prior “pandering” provision to the extent that it included within its child pornography definition material promoted in such a way that it “conveys the impression” that it shows a minor engaged in sexually explicit conduct. Reavley’s 11th Circuit opinion quoted fears expressed by Sen. Patrick Leahy, D-Vt., during the debate over Congress’ attempt to fix the law after it was struck down by the high court. Leahy, the ranking Democrat on the Senate Judiciary Committee, said the proposed changes “federally criminalize[s] talking dirty over the Internet or the telephone when the person never possesses any material at all.” “In a non-commercial context,” wrote Reavley, “any promoter�be they a braggart, exaggerator, or outright liar�who claims to have illegal child pornography materials is a criminal punishable by up to twenty years in prison, even if what he or she actually has is a video of �Our Gang,’ a dirty handkerchief, or an empty pocket.” The provision is overbroad, the judge added, also because criminal liability under the provision could be based on the “perverted but privately held belief” that certain materials are “lascivious.” Most pedophiles find “virtually all” depictions of children erotic, said the court, but “we may not outlaw the thoughts conjured up by those legal materials.” Jeffrey J. Douglas, chair of the board of the Free Speech Coalition, a trade organization for adult entertainment businesses that challenged the old law before the Supreme Court, said that the 11th Circuit’s decision was “inevitable” following the 2002 ruling. “While everyone abhors the idea of sexually exploiting children,” said Douglas, also a criminal defense attorney in Santa Monica, Calif., “there is a legal difference between an idea and an act, and Congress attempted to criminalize the idea again, and the Supreme Court and now the 11th Circuit has essentially said you can’t do that.” As an example of what the 11th Circuit’s decision means, Douglas noted that the term “Lolita” is highly suggestive of child molestation, but the novel by that name may be written without exploiting any child. “If I were to offer to distribute Lolita material there are law enforcement agents that would line up between here and Atlanta to prosecute me because of what that phrase or term conveys,” he said. “But you can’t do that.” The case came from a federal prosecution in Miami. Alicia Valle, special counsel to U.S. Attorney R. Alexander Acosta, said Friday that prosecutors would make a determination whether to seek further review of the 11th Circuit panel’s decision soon but would have no further comment. The government’s 11th Circuit brief argued that the pandering provision of the PROTECT Act was significantly different from the law struck down by the Supreme Court in 2002 and “does not prohibit a substantial amount of protected speech in relation to the statute’s plainly legitimate sweep.” Ironically, the appellate decision may be of no practical help to the party who raised the challenge to the law. According to the decision, federal prosecutors in Miami charged Michael Williams after he traded messages with an undercover agent posing as a minor in a chat room. Federal agents seized images of minors engaging in sexually explicit conduct from Williams’ hard drive, the decision added. In addition to receiving a five-year sentence on his pandering conviction, Williams also received a five-year sentence�to run at the same time as the other sentence�for possession of child pornography. The appeals court rejected Williams’ arguments that he was improperly sentenced on the possession count, leaving his five-year sentence intact. “It’s really a pyrrhic victory at this point,” said Luis Guerra, a Miami attorney who represented Williams, adding that he still was very pleased with the decision on the pandering provision. The case for Williams was argued at the 11th Circuit by Miami attorney Ophelia Grillo, and Miami lawyer Richard Diaz, also represented Williams on the case. Guerra said that his client was considering whether or not to seek a rehearing or review by the Supreme Court on the sentencing ruling. Guerra said that the attorneys were not First Amendment experts but “felt comfortable” handling the matter because “it was so obvious to us that this statute was problematic.” Jennifer M. Kinsley, a criminal defense attorney in Cincinnati who handles First Amendment matters, suggested that few defendants may be helped directly by Williams’ partial victory. “[I]t is exceedingly rare that a defendant is charged with promotion, since the penalties for possession are so high and the burden of proof is so low,” said Kinsley in an e-mail. “So I don’t really think the case will be that significant in terms of impacting other defendants’ convictions.” However, Kinsley added that she thought the decision might call into question the constitutionality of laws that criminalize an adult soliciting an undercover police officer posing as a juvenile for sex. The 11th Circuit case is United States v. Williams, No. 04-15128 (11th Cir. April 6, 2006). Staff Reporter Alyson M. Palmer can be reached at [email protected]

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