In U.S. v. Williams, No. 04-15128 (April 6, 2006), the Court (Barkett, Wilson, Reavley b.d.) struck down as violative of the First Amendment the "pandering" child pornography provision of the Protect Act. The Court affirmed Williams’ conviction for possessing child pornography, and rejected a Booker challenge to the 60-month sentence imposed for that conviction.
The pandering provision of the Protect Act criminalized promoting material "in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is or contains [child pornography]." 18 U.S.C. § 2252A(a)(3)(B). The Court found that this provision was overbroad. First, because the provision encompassed "purported" child pornography, or material that reflects a belief that it contains such pornography, the provision swept not just "real" child pornography, but legal child erotica. Further, by having "beliefs" trigger criminal liability, the law effectively focused on thoughts. The Court recognized that, under Supreme Court caselaw, pandering might be probative evidence of intent to unlawfully traffic in child pornography, but held that pandering alone could not, as the statute was written, be the basis for an independent crime.
The Court found Congress’ legislative findings inadequate to sustain the pandering law. The rationale of suppressing the market for child pornography had already been rejected by the Supreme Court in Free Speech Coalition as inadequate, and the Court found no findings which supported the claim now. The Court also noted that the First Amendment does not allow the government to suppress lawful speech as a means of suppressing unlawful speech.
The Court also found the law unconstitutionally vague. The Court pointed out that the law gave the government overbroad discretion in deciding whom to prosecute among persons who arguably had "intended to cause another to believe" that they were promoting child pornography. The pandering provision requires no inquiry into the actual nature or even existence of the images, and provides no affirmative defense that hte underlying material are not, in fact, illegal child pornography.
Turning to the sentence, the Court noted that, given the district court’s statement that it doubted the sentence would be lower under non-mandatory Guidelines, and that the sentence might even be higher, the sentence was not "substantially swayed" by the district court’s Booker error in sentencing under mandatory Guidelines.
