John Wirenius (![[info]](http://l-stat.livejournal.com/img/userinfo.gif){kind=small} jwirenius) wrote,@ 2008-05-19 22:46:00 |
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The Court Undermines the First Amendment
Today, the Supreme Court rendered the decision in U.S. v. Williams, 533 U.S. ___ (2008), in which the Court reversed the 11th Circuit's decision which found the solicitation and pandering provisions of the so-called PROTECT Act. The Supreme Court decided that the statute was not overbroad, despite acknowledging that the statute applies to protected speech--"virtual child pornography" (images depicting children in a sexual context that are not created with real children, deemed protected speech in Free Speech Coalition v. Ashcroft), when such protected speech is believed to be by either seller or purchaser to be child pornography.
What a difference two justices make.
Where FSC v. Ashcroft used what I have elsewhere described as "verbal act" logic--sounding in the core of the First Amendment, that ideas cannot be banned based on disagreement with the ideas expressed, but only on actual concrete harm--Williams revels in the exceptions to the First Amendment, categorical carve outs from free speech based solely on tradition. (For more, see First Amendment, First Principles: Verbal Acts and Freedom of Speech (2d Ed. 2004)). The change in the Court's emphasis is striking, and disheartening.
Moreover, as Justice Souter noted in his dissent, two paths the Court employs to justify its logic fail abysmally. First, the argument that the statute merely regulates an attempt to possess child pornography would seem applicable, except that the Court flouts the well-established rule that a attempt to commit "pandering" is, in essence, a attempt to commit an attempt--a inchoate crime that a "metaphysician could imagine" but not traditional criminal law.
More to the point, the offenses of soliciting and pandering created in this statute overrules the traditional doctrine exempting from liability an attempt that is legally impossible due to a fact unknown to at least one actor. Worse, in this case, as Justice Souter further notes, the act carved out of the zone of protection is the distribution of speech that is, under FSC v. Ashcroft, entitled to First American protected. Not even in Dennis v. United States (1951), which treated protected speech as if it were unprotected conduct, was protected speech subjected to stricter regulation than is at common law afforded unprotected conduct. (Justice Souter defends the centrality of the verbal act concept, enshrined in Brandenburg v. Ohio (1969), which he describes as "the culmination of half a century's development that began with Justice Holmes's dissent in Abrams v. United States." (1919)).
The withering of legal protections in the interest of protecting children has happened before in American law; the damage to our Confrontation Clause from the ritual satanic abuse cases has not been undone. The Roberts Court seems not to have learned from this history, despite Justice Souter's unrebutted point that the Justice Department has not lost a single case on the ground that the defendant mistakenly believed that the materials being provided were "virtual child pornography." Once again, to fend off a chimera, the Courts are diluting the Constitution.
Today, the Supreme Court rendered the decision in U.S. v. Williams, 533 U.S. ___ (2008), in which the Court reversed the 11th Circuit's decision which found the solicitation and pandering provisions of the so-called PROTECT Act. The Supreme Court decided that the statute was not overbroad, despite acknowledging that the statute applies to protected speech--"virtual child pornography" (images depicting children in a sexual context that are not created with real children, deemed protected speech in Free Speech Coalition v. Ashcroft), when such protected speech is believed to be by either seller or purchaser to be child pornography.
What a difference two justices make.
Where FSC v. Ashcroft used what I have elsewhere described as "verbal act" logic--sounding in the core of the First Amendment, that ideas cannot be banned based on disagreement with the ideas expressed, but only on actual concrete harm--Williams revels in the exceptions to the First Amendment, categorical carve outs from free speech based solely on tradition. (For more, see First Amendment, First Principles: Verbal Acts and Freedom of Speech (2d Ed. 2004)). The change in the Court's emphasis is striking, and disheartening.
Moreover, as Justice Souter noted in his dissent, two paths the Court employs to justify its logic fail abysmally. First, the argument that the statute merely regulates an attempt to possess child pornography would seem applicable, except that the Court flouts the well-established rule that a attempt to commit "pandering" is, in essence, a attempt to commit an attempt--a inchoate crime that a "metaphysician could imagine" but not traditional criminal law.
More to the point, the offenses of soliciting and pandering created in this statute overrules the traditional doctrine exempting from liability an attempt that is legally impossible due to a fact unknown to at least one actor. Worse, in this case, as Justice Souter further notes, the act carved out of the zone of protection is the distribution of speech that is, under FSC v. Ashcroft, entitled to First American protected. Not even in Dennis v. United States (1951), which treated protected speech as if it were unprotected conduct, was protected speech subjected to stricter regulation than is at common law afforded unprotected conduct. (Justice Souter defends the centrality of the verbal act concept, enshrined in Brandenburg v. Ohio (1969), which he describes as "the culmination of half a century's development that began with Justice Holmes's dissent in Abrams v. United States." (1919)).
The withering of legal protections in the interest of protecting children has happened before in American law; the damage to our Confrontation Clause from the ritual satanic abuse cases has not been undone. The Roberts Court seems not to have learned from this history, despite Justice Souter's unrebutted point that the Justice Department has not lost a single case on the ground that the defendant mistakenly believed that the materials being provided were "virtual child pornography." Once again, to fend off a chimera, the Courts are diluting the Constitution.
