May 20, 2008
Legal Department
Don't Ask About Imaginary Child Porn
Scott Greenfield has an interesting response to the Supreme Court's ruling on the Protect Act in U.S. v. Williams.
...The problem is that criminalizing the speech of making offer/requests for kiddie porn, but then not requiring that there actually be kiddie porn or that the porn under discussion actually involves children, disconnects the speech from the underlying bad act (child pornography).
He quotes Eugene Volokh:
That the item might not actually be obscenity or child pornography doesn't matter because the general criminal law is that an attempt to commit a crime is punishable even if the attempt is factually impossible. Trying to buy illegal drugs, for instance, by soliciting someone to sell them to you is generally a criminal attempt even if the solicited seller was only going to deliver fake drugs rather than real ones. So the bottom line is that the prohibited conduct constitutes criminally punishable solicitation, offer, or attempt to get or give constitutionally unprotected material.
To which Scott responds:
Trying to buy illegal drugs is not a substantive state crime. It is the possession or sale of drugs that is the crime. If a fellow walks down Amsterdam Avenue asking if anybody knows where he can score some heroin, he has done nothing criminal. It won't help his sainthood application, but he's not going to the can for it.
Similarly, if a fellow stands on St. Nick asking passersby if they want some cheap blow, and then hands them a glassine of baby powder, he too has committed no substantive state crime, though he may have to run hard and fast to get away from some very disappointed purchasers. There has to be real drugs involved, and there has to be an actual transfer involved, for the deal to be criminal.
Scott's speaking some legal language here that may have a meaning that eludes me, but I think some places have a crime called "sale in lieu of a Controlled Substance" which covers things like fake drugs. I don't know if there's also "attempted sale in lieu of a Controlled Substance." I kind of hope not. It seems wrong to jail somebody for a crime with two imaginary components.
That's Scott's point too. The Protect Act makes it a crime to offer to sell something which doesn't exist, even if no sale occurs and there's nothing to sell.
Honestly, I'm not entirely sure exactly what bad things will happen now that this law has passed constitutional muster, but it has the feel of one of those laws which will eventually be exploited to hurt a lot of people with very little benefit to society.
Not everyone agrees, as Scott relates:
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.
I have to part ways with Nino here. If constitutionality of a law is dependent on the sound discretion of prosecutors not to be overzealous or abusive, or the oversight of district court judges to somehow stop indictments should the AUSAs get out of control, we're in deep trouble. History has proven that neither of these stopgaps work very well, and since when does constitutionality hinge on the government being trustworthy?
I would think at least since Hudson v. Michigan, when Scalia wrote,
Contrary to Hudson's argument that without suppression there will be no deterrence, many forms of police misconduct are deterred by civil-rights suits, and by the consequences of increasing professionalism of police forces, including a new emphasis on internal police discipline.
It's not that I want our justice system to be soft on child pornographers, but if we're going to carve out an exception to the First Amendment for child pornography, shouldn't we make sure it only applies when there's child pornography involved?
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