“A Discomfiting Threat to Free Speech”

(1)
NY Times editorial called the decision of US v Williams:

The dissenters are right that the court should have made Congress go back and pass a more carefully written law. They are also right that the court’s analysis undermines protections for political speech.

(2)
In the dissenting, Justice Souter writes in the last para.:

Perhaps I am wrong, but without some demonstration that juries have been rendering exploitation of children unpunishable, there is no excuse for cutting back on the First Amendment and no alternative to finding overbreadth in this Act. I would hold it unconstitutional on the authority of Ferber [1982] and Free Speech Coalition [2002].

Supreme Court Upholds Child Pornography Law

(1)
NY Times reported:

The Supreme Court on Monday upheld the latest Congressional effort to curb the spread of child pornography on the Internet, a 2003 law that makes it a crime to offer or solicit sexually explicit images of children.

The law, known as the Protect Act, applies regardless of whether the material turns out to consist solely of computer-generated images, or digitally altered photographs of adults, or even if the offer is fraudulent and the material does not exist at all.

(2)
“His conviction for possessing the images, and his five-year sentence for that crime, were not at issue in the case.”

(3)
It is about the 1st Ammendment:

“Offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment,” Justice Antonin Scalia wrote for the 7-to-2 majority.

The law at issue was a response to a Supreme Court ruling in 2002, a decision that found unconstitutional an earlier law that prohibited simple possession of purported child pornography even if the material turned out not to depict real children. The First Amendment was violated by a law that “prohibits the visual depiction of an idea,” Justice Anthony M. Kennedy said in the 2002 decision.

Justice Scalia said on Monday that by limiting the crime to the “pandering” of child pornography, the new law represented “a carefully crafted attempt to eliminate the First Amendment problems we identified” in the earlier decision.

The new law and the earlier one, the Child Pornography Prevention Act of 1996, were legislative efforts to deal with the challenge that technology poses to prosecutors if they must prove that material that looks like child pornography was actually produced using real children.

Under the court’s interpretation of the 2003 statute, a person offering material as child pornography can be convicted on either of two grounds: for believing that the material depicts real children, or for intending to convince a would-be recipient that it does.

Is the statute too broad?

The statute itself (“Protect” is an acronym for Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today) is open to a considerably broader interpretation, which led the federal appeals court in Atlanta to invalidate it in 2006, the decision that the justices overturned on Monday.

The law applies to “any person who knowingly advertises, promotes, presents, distributes, or solicits” the prohibited material, raising concerns about whether mainstream movies or innocent photographs of babies in the bath might invite prosecution.

The court said no:

Justice Scalia dismissed these concerns as “fanciful hypotheticals,” saying that such situations would either not give rise to prosecutions or, if they did, would be protected by the courts. In a concurring opinion, Justices John Paul Stevens and Stephen G. Breyer said they, too, were satisfied that the court’s narrow construction of the statute had allayed “any constitutional concerns that might arise.”

(4)
In the dissent:

The two dissenting justices, David H. Souter and Ruth Bader Ginsburg, said their concerns had not been answered. In an opinion by Justice Souter, which Justice Ginsburg signed, they said they did not object to making it a crime to mislead others by offering material that did not in fact exist. That was simply fraud, Justice Souter said.

However, he added, possession of pornographic images that do not depict real children is constitutionally protected, and offering them should not be a crime. “If the act can effectively eliminate the real-child requirement when a proposal relates to extant material, a class of protected speech will disappear,” Justice Souter said.

(5)
The opinion: US v Williams

Sixth Circuit Denies Standing To Challenge Terrorist Surveillance Program

Harvard Law Review case summary (Issue 121, Jan 2008): ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007) (.pdf) (8 pages)

The Terrorist Surveillance Program (TSP) offers a conundrum for the courts and would-be challengers. Many experts have argued that the program was illegal on the grounds that it ignored the warrant requirement congress prescribed in the Foreign Intelligence Surveillance Act of 19781 (FISA) and that it might have violated the Fourth Amendment. But the state secrets doctrine has prevented potential plaintiffs from obtaining proof that they were among the group surveilled under the TSP.3 In a recent decision, ACLU v. NSA, the Sixth Circuit accordingly held that a group of plaintiffs lacked standing to challenge the TSP because they could not show that they personally were injured by it. The judges relied on a strict construction of standing for Fourth Amendment injuries, one developed in cases where plaintiffs sought to challenge individual searches of other people. In the context of secret surveillance programs by the government, the reality is that no plaintiff will be in a position to establish injury with anything approaching certainty. Hence, a more appropriate approach would be to allow standing where plaintiffs can show even a low level of probability they have been or will be among the injured.