Supreme Court Upholds Provision Opposed by Free Speech Groups

May 20, 2008

On Monday, May 19, in a 7 - 2 ruling, the U.S. Supreme Court upheld a provision of a child pornography law that free speech groups contended punished speech about books that are protected by the First Amendment. Under the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003, a producer, distributor, or retailer can be sentenced to up to 20 years in jail for advertising a work "in a manner that reflects the belief, or that is intended to cause another to believe" that it contains sexually explicit pictures of minors. The Supreme Court decision overturned a lower court ruling.

"We are disappointed that the Supreme Court did not recognize the problem of vagueness identified by the 11th Circuit," said Chris Finan, president of the American Booksellers Foundation for Free Expression. "However, we take some comfort in the fact that the Court has declared that the law applies only to those who intentionally market material as child pornography. It effectively narrowed the statute, making it less likely that a bookseller could ever be charged."

In an amicus brief filed in the Supreme Court in September 2007, ABFFE, the Association of American Publishers, the Freedom to Read Foundation, and other book industry groups warned of the provision's potential chilling effect on materials protected by the First Amendment.

The groups argued that producers, distributors, and retailers must be free to advertise books and other works protected by the First Amendment without the fear that a prosecutor will charge them with a crime. The 11th Circuit Court of Appeals had found the law unconstitutionally vague and that it could be used to send someone to jail for advertising as "child pornography" works that neither depict children nor are sexually explicit.

Writing for the majority, Justice Antonin Scalia declared that it is clear that Congress meant the law to apply only to those who intentionally market material as child pornography.

Topics: News - Bookselling, Free Expression,