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Six years ago the Supreme Court came out with a disastrous decision, which made prosecuting child porn cases virtually impossible. That decision — Ashcroft v. The Free Speech Coalition — said that in order to prevail at trial, prosecutors of child porn had to prove that the images were of “real” children, not digitally altered or morphed images. But the “real” children (aka victims) involved in child porn are almost impossible to find — let alone produce as witnesses at trial.

Now, finally, the Supreme Court has issued a ruling in U.S. v. Williams which should make it easier to prosecute child porn cases. The Court upheld a law that specifically prohibits pandering (offering or requesting) of child pornography regardless of whether the material actually contains images of real children, as opposed to possibly digitally altered images of children.

And under this law, an Internet user who solicits child pornography from an undercover agent violates the law even if the agent does not actually possess the child pornography. That is what happened when Michael Williams was arrested and prosecuted. A secret service agent started communicating with Williams in an Internet chat room after noticing that Williams had posted a message that read “dad of toddler has 'good pics' of her…” First they swapped non-pornographic pictures. Then Williams messaged that he had photographs of men molesting his 4 year old daughter. He also posted a hyperlink that led to seven pictures of actual children aged 5 to 15 engaged in sexually explicit conduct. A search warrant was obtained and the Secret Service found two hard drives containing 22 similar pictures. Williams was convicted but was able to preserve his right to challenge the constitutionality of the pandering conviction. The Eleventh Circuit Court of U.S. Appeals ruled in favor of Williams because they believed the Act was overbroad and vague.

Now, Justice Scalia writing for the Supreme Court disagreed. Scalia wrote that pandering child pornography — however the images are created — is illegal, and that all of the far-fetched what-ifs raised by those who oppose the law are highly improbable. For example, adolescent sex scenes in movies like “American Beauty” and “Titanic” would not be illegal because studios are not promoting the film as containing child pornography. Likewise, an e-mail with the subject line “good pics of the kids in bed” with a photograph attachment of three toddlers in their pajamas asleep in bed would not be illegal. The court dismissed these examples as fanciful hypotheticals, the type that can be imagined under any law but do not render the law invalid.

The Supreme Court dissent, on the other hand, focused on that horrible decision of six years ago. Since under this newer law pandering images of 'virtual' children could be the basis for prosecution, the dissent said it contradicts the Court's previous ruling. The dissent also felt little sympathy for prosecutors who contend that proving the age of a child will seriously hinder their ability to successfully prosecute these cases. According to the U.S. Department of Justice Bureau, of the 1,209 federal child pornography cases that were concluded in 2006, 95.1% of defendants were convicted. The dissent felt these statistics demonstrated that there is “no crisis in the ability to prosecute.”

Is there a crisis in the ability to prosecute child pornography cases? The Supreme Court's 2002 ruling that digitally altered images of child pornography is a protected form of free speech resulted in defense attorneys questioning the authenticity of images in an effort to introduce reasonable doubt into the minds of the jurors. As a result, prosecutors must bring in experts to help prove the case. This costs tens of thousands of dollars, which makes it less likely that cases will be brought.

Experts in the field say that with rapidly changing technology it has become increasingly difficult to distinguish a computer generated image from a real one. “Now we have to establish that the image …is in fact an image of a real child…in some instances that can be monumental,” said Randy Aden, supervisor of the FBI's Sexual Assault Felony enforcement team in Los Angeles.

For example, in a 2006 Massachusetts case a defendant's employer found pornographic images on his work computer. The defendant claimed that the pictures were not of real children. Unfortunately the prosecutor could not prove otherwise; imaging technology is far too advanced to rely on the human eye to decipher real images from altered images and the potential error rate of the prosecutor's expert evidence was too high. The defendant won.

Bottom Line: The Supreme Court has finally realized that the spread of child pornography on the Internet is on the rise and poses a serious threat to the well-being of children everywhere. Justice Scalia summed it up best in his opinion when he said “child pornography harms and debases the most defenseless of our citizens… both the state and federal governments have sought to suppress it for many years, only to find it proliferating through the new medium of the Internet.” According to a National Children's Homes report, the number of Internet child pornography images has increased 1500% since 1988. Approximately 20% of all Internet pornography involves children, and more than 20,000 images of child pornography are posted on the Internet every week. Child pornography has become a $3 billion annual industry. These are only a few of the disturbing statistics not cited by the dissent.


• National Center for Missing & Exploited Children. Internet Sex Crimes Against Minors: The Response of Law Enforcement. Virginia: National Center for Missing & Exploited Children, 2003
• Top Ten Reviews, 2005
• The Associate Press, Digital Photography Complicate Child Pornography Cases, March 16, 2008
• ZDNet News August 21, 2000, New Weapon in Child-Porn Wars
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Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. To read the rest of Lis's bio, click here.