WHEN A LIE IS THE TRUTH: PANDERING CHILD PORNOGRPAHY

In 2003 Congress enacted the Prosecutorial Remedies and Other Tools against the Exploitation of Children Today Act to discourage trafficking in child pornography. The Act contained, among other provisions, a pandering provision that prohibited offers to provide, or requests to obtain, child pornography. Against a challenge of overbreadth and vagueness, the Supreme Court in United States v. Williams held that the pandering provision did not prohibit a substantial amount of protected speech, and that the language of the statute, along with its intent requirement, created a sufficiently clear fact-based scheme. In reaching its decision, the Court focused on the illegality of the materials described in the pandering provision as justifying the limitations on speech. This article argues that rather than focus on the nature of the materials underlying a proposed transaction, the Court could have rendered a more persuasive decision had it instead focused on the nature of the speech itself. [PUBLICATION ABSTRACT]