Supreme Court upholds part of child porn law

updated 10:51 a.m. ET May 19, 2008

WASHINGTON - The Supreme Court upheld criminal penalties Monday for promoting child pornography.

The court, in a 7-2 decision, brushed aside concerns that the law could apply to mainstream movies that depict adolescent sex, classic literature or innocent e-mails that describe pictures of grandchildren.

The ruling upheld part of a 2003 law that also prohibits possession of child porn. It replaced an earlier law against child pornography that the court struck down as unconstitutional.

The law sets a five-year mandatory prison term for promoting, or pandering, child porn. It does not require that someone actually possess child pornography. Opponents have said the law could apply to movies like "Traffic" or "Titanic" that depict adolescent sex.

But Justice Antonin Scalia, in his opinion for the court, said the law does not cover movie sex. There is no "possibility that virtual child pornography or sex between youthful-looking adult actors might be covered by the term 'simulated sexual intercourse,'" Scalia said.

Likewise, Scalia said, First Amendment protections do not apply to "offers to provide or requests to obtain child pornography."

Justice David Souter, joined by Justice Ruth Bader Ginsburg, dissented. Souter said promotion of images that are not real children engaging in pornography still could be the basis for prosecution under the law. Possession of those images, on the other hand, may not be prosecuted, Souter said.

"I believe that maintaining the First Amendment protection of expression we have previously held to cover fake child pornography requires a limit to the law's criminalization of pandering proposals," Souter said.

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