Internet Law: Supreme Court Caselaw: In a recent decision, the United States Supreme Court upheld a law aimed at regulating child pornography in the age of the Internet. U.S. v. Williams examined a facial attack against the PROTECT Act of 2003, which prohibits not only the possession or transmission of a pornographic image depicting a minor, but also any advertisement, distribution or solicitation which reflects the belief, or which is intended to cause another to believe that, such an image is being distributed. In other words, the Act reaches beyond actual child pornography to also apply to the distribution or solicitation of material that an individual mistakenly believes to be child pornography. The Court rejected the plaintiff’s argument that the statute was vague and overbroad in scope and thus contradictory to deep rooted First Amendment principles.

This holding follows cases invalidating, or otherwise holding as unconstitutional, Internet laws aimed at preventing child pornography. In upholding the statute, the Court essentially held that the doctrine of mistake trumps the First Amendment. The mistake doctrine is a criminal law principle under which a mistake about the facts is no defense. In the context of the Williams decision, the doctrine is relevant in that the PROTECT Act applies not only when actual child pornography is actually being distributed, but also when a party is either distributing material with the mistaken belief that it is child pornography or attempting to persuade another party to purchase material by fraudulently advertising it as child pornography. The Williams Court reasoned that offers to engage in illegal transactions, when those transactions would not technically be deemed unlawful, are outside the protection of the First Amendment. As such, First Amendment protection will turn on whether an individual traffics in material that he believes to be unprotected, and not on whether that material is actually protected.

Notably, the PROTECT Act is the third legislative effort to regulate child pornography at the federal level. The first two efforts by Congress were the Communications Decency Act of 1996, which was partially overturned by the Supreme Court in 1997, and the Child Online Protection Act (COPA), which was struck down by the U.S. Circuit Court of Appeals for the Third Circuit in 2008. In both instances, the Court upheld legal challenges to the statutes on the ground that they were unconstitutionally overbroad. Similar to the PROTECT Act, the reach of COPA went beyond actual child pornography, prohibiting material that merely appeared to be or conveyed the impression that it was child pornography.

With the Williams decision, the Supreme Court has taken a harder line. The PROTECT Act seeks to punish not only those individuals who deal in actual child pornography, but also the individuals who support the production, distribution and possession of such material. The effect of the decision will depend on how stringently trial courts enforce the Act, which will turn on the evidentiary standard that prosecutors must overcome in proving that a defendant intended to distribute material that he believed to be, or that he wanted others to believe was, actual child pornography. For example, if a defendant distributes pornography depicting an individual who appears to be 14 years old, but is really 20 years old, a court may nonetheless deem the defendant to have violated the Act. Again, such determinations will depend on the approach that the trial courts take in enforcing the Act.


© 2008 Nissenbaum Law Group, LLC

PLEASE NOTE Meetings by appointment only in Union, NJ; New York, NY; Philadelphia, PA & Dallas, TX offices. Legal services generally performed from the Union, NJ office. The firm has attorneys licensed in New Jersey, New York, Pennsylvania, Texas and/or the District of Columbia. In limited circumstances, the firm may practice in other states under the prevailing multi-jurisdiction rules or through pro hac vice admission.


ATTORNEY ADVERTISING. Any questions regarding this website should be directed to Gary D. Nissenbaum, Esq. (, who is responsible for the content of this website.

© 2021 Nissenbaum Law Group, LLC. All rights reserved.

Disclaimer | Privacy Policy