Washington: The US Supreme Court on Monday upheld criminal penalties for the promotion of child pornography, ignoring arguments that the law could apply to mainstream movies that depict adolescent sex, classic literature or even innocent emails that describe pictures of grandchildren.
The ruling upheld part of a 2003 law that also prohibits possession of child porn. It replaced an earlier law against child pornography that the court struck down as unconstitutional.
The law sets a five-year mandatory prison term for promoting or pandering child porn and does not require that someone possess child pornography. Opponents have said that could make the law apply to movies such as Titanic or Traffic, which depict adolescent sex. Both movies won "best picture" Academy Awards, Titanic in 1997 and Traffic in 2000.
Justice Antonin Scalia, in his opinion for the court, said the law does not deal with movie sex. There is no "possibility that virtual child pornography or sex between youthful-looking adult actors might be covered by the term 'simulated sexual intercourse'," Scalia observed.
Dissenting opinion
Scalia held that free speech protections in the First Amendment do not apply to "offers to provide or requests to obtain child pornography".
Justice David Souter, joined by Justice Ruth Bader Ginsburg, dissented. Souter said promotion of images that are not real children engaging in pornography still could be the basis for prosecution under the law. Possession of those images, on the other hand, might not be prosecuted, Souter said.
The 11th US Circuit of Appeals had, in 2002, struck down major provisions of a 1996 child pornography law because they called into question legitimate educational, scientific or artistic depictions of youthful sex.
Congress responded the next year with the PROTECT Act, which contains the provision under challenge in the current case.
