A Discomfiting Threat to Free Speech – New York Times: May 21, 2008, Editorial, A Discomfiting Threat to Free Speech

The Supreme Court upheld a law on Monday that sweeps too broadly in its attempt to ban child pornography, which is repellent and illegal. Those who traffic in it must be punished, but this law is drawn in a way that also criminalizes speech that should be protected by the First Amendment.

The dissenters are right that the court should have made Congress go back and pass a more carefully written law. They are also right that the court’s analysis undermines protections for political speech.

The court has traditionally been extraordinarily careful, as it must be, both to protect children and the right to free expression. It has upheld bans on obscenity and on sexually explicit photos of children that do not meet the legal standard of obscenity. The court has emphasized, however, that these free-speech exceptions are narrow and that it would be vigilant about striking down restrictions that go beyond them.

In 2002, the court struck down parts of the Child Pornography Protection Act that banned images that appeared to be explicit depictions of children, even if they were actually pictures of adults or computer-generated images. Banning images in which there are no real children, the court held, violates the First Amendment.

After that ruling, Congress passed a new law with its own problems. One provision punished anyone who ‘promotes’ material in a manner ‘intended to cause another to believe’ it is child pornography. That, once again, sweeps in fake child pornography — which is just what the court in 2002 said must be avoided.

This time, the court upheld the law by a 7-to-2 vote. That creates a bizarre contradiction. Fake child pornography is protected, but marketing fake child pornography is not. As Justice David Souter noted in dissent, it makes no sense to criminalize proposing to sell items that are themselves constitutionally protected.

It may seem hard to muster much concern about the speech at issue here. But the implications go beyond child pornography. As Justice Souter reminds us, it is an important principle in the court’s political speech and sedition cases that speech cannot be banned based on bad intent, only on a ‘realistic, factual assessment of harm.’

If the court had struck down the offensive parts of the law, the damage to child-pornography prosecutions would be minimal. The harm of weakening the protections of free speech is far more substantial.