Protecting Children Speech That Crosses the Line

Article excerpt

High School Musical, Camp Rock, and "iCarly" are the daily topics in a chat room frequented by tweens and teens, trolled by pedophiles, (1) and patrolled by undercover police officers. In an exchange between an undercover police officer posing as a 14-year-old girl and a 43-year-old male suspect pretending to be a 14-year-old girl, the latter asks,


"Do u have nude pics of yourself?"

"Nooo! U?"

"I'm sending u mine u send me urs k?"

This scenario is an example of speech in the cyberage, where fingers on a keyboard serve as substitutes for the spoken word. Do the words and the actions taken to transmit them constitute pandering (2) or any other type of criminal conduct? The government has an interest in protecting children from exploitation and can criminalize activities related to child pornography, but can speech be included within this government net?

In United States v Williams, (3) the U.S. Supreme Court addressed the balance of liberty and security in the context of speech about child pornography. This case involved a constitutional challenge to the federal statute Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT), (4) which sought to criminalize the exploitation of children by focusing on speech. The Supreme Court's decision impacts how offenders can be criminally charged. This article explores the evolution of child pornography law, examines United States v. Williams, and then discusses the potential for charging panderers under the PROTECT act.


The recent explosion of child pornography is a reprehensible side effect of a society that values free speech and uncensored expression. The Internet, the 21st century equivalent to the 18th century soapbox on the village green, also provides those with evil intent a convenient, anonymous vehicle to exploit children. That exploitation has reached nearly epidemic levels. In 1998, police cracked the "Wonderland Club," an Internet child pornography ring that involved members across 12 countries and whose chairman was an American, uncovering some 750,000 images of children. Membership rules required each member to possess at least 10,000 images of preteen children and to agree to exchange them with other members. Other rings promote the worst imaginable forms of child pornography, such as custom child pornography (images of child rape created for the consumer) and real-time child pornography, where members may watch the online rape of children as it occurs. In early 2006, federal authorities shut down an Internet Web site called "Kiddypics & Kiddyvids" that streamed video of live child molestations involving children as young as 18 months. Total federal prosecutions of child pornography cases increased more than 452 percent from 1997 to 2004. (5)

In just the last quarter of a century, Congress and the courts have expended a great deal of effort legislating and ruling on child pornography. The history of child pornography jurisprudence has demonstrated that the societal interest in protecting children from sexual exploitation trumps the free speech considerations associated with obscenity where adults are the subject matter. (6) The harm-to-children rationale has been the foundation of child pornography law, but does it apply to merely talking about child pornography?

Child pornography law started with the Supreme Court looking at the issue of obscenity. In 1973, the Supreme Court produced the three-prong Miller test as a means of determining whether something was obscene. (7) Using this Miller standard, the Supreme Court later determined that while people could possess obscene materials in the privacy of their homes, the government still could regulate distribution and receipt based on interstate commerce grounds. (8) In 1977, Congress passed the Protection of Children Against Sexual Exploitation Act of 1977, which, using the Miller standard, prohibited the use of children in the production of obscene material and criminalized the knowing distribution of such materials for commercial purposes. …