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Monday, May 19, 2008
Congress passed the 2003 "PROTECT Act" to try to shore up federal controls on child pornography after the Supreme Court struck down a 1996 federal law on the subject in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). The new law, 18 U.S.C. § 2252A(a)(3)(B) criminalizes, in certain specified circumstances, the pandering or solicitation of child pornography. The Eleventh Circuit held that the new pandering provision is overbroad and vague. The Supreme Court reversed, holding that the provision does not violate the overbreadth proscription of the First Amendment, nor is it vague in violation of the Due Process Clause of the Fifth Amendment. Justice Scalia’s majority opinion rejected both facial unconstitutionality claims on broad grounds, permitting only "as applied" challenges if, and when, the proffered hypothetical constitutional difficulties arise. Justices Stevens and Breyer concurred, but would have rested the Court’s holding on two more traditional (and less broad grounds) grounds: (1) resort should be made to every reasonable construction of a statute to save it from unconstitutionality, and (2) to the extent the text of the statute is unclear, the duty to avoid an interpretation resulting in unconstitutionality requires the court to consider legislative history and the drafters’ intent. This approach, they conclude, also leads to upholding of this statute. Justices Souter and Ginsburg dissented, insisting that the statute is unconstitutional under the Court’s precedents, New York v. Ferber, 458 U.S. 747 (1982) and Free Speech Coalition.