A Word of Caution About How Your Advertise Your Site and Its Content . . .


By J. D. Obenberger, Attorney at Law
© MMVIII J. D. Obenberger, All Rights Reserved

On May 19, 2008, the United States Supreme Court, in United States v. Williams, reversed the Eleventh Circuit and upheld the constitutionality of a law related to pandering material as “child pornography” even if it wasn't really child pornography. The law, contained in Title 18 United States Code Section 2252A, criminally penalizes the knowing advertising, promoting, and distributing (among other activities) of material – or “purported matter” in a manner that reflects a belief  that the material is child pornography or is intended to cause another to believe that it is child pornography. This statute has the power to reach material that 1) does not actually even exist (“purported material”),  2) obscene material made exclusively with adults who are depicted as minors engaging in actual, explicit sex, and 3), last but surely not least, minors depicted in actual, explicit sex. This is all punishable between five and twenty years in prison.

Congress passed this law in reaction to the decision in Free Speech Coalition v. Ashcroft (2002) which invalidated Congress's earlier attempts to proscribe materials put forward as child pornography. The Free Speech Coalition opinion was grounded on the proposition that a flat prohibition of material depicting underage sex can be banned, when it is not obscene, only when real children were involved in the creation of the material. The Williams case highlights that the statute invalidated in Free Speech Coalition banned possession of such materials without regard to whether real children were involved, while the more recent statute relates exclusively solicitations and transfers rather than possession. The Court held that the law was neither constitutionally overbroad nor impermissibly vague.

An important principle articulated in Williams is that speech which proposes illegal transactions enjoys no constitutional protection. It is not important to the Court whether the material exists or whether or not it depicts underage performers; Justice Scalia writes that Congress may properly create crimes that involve fraudulent offers and also those which propose an illegal transaction. The Court views this statute as including both, such as a fraudulent offer to enter into an illegal transfer, making it doubly punishable.

At the root of prosecutions under this statute, there must be a transactional statement, conversation and/or circumstances from which it is evident that the defendant either believed or intended others to understand that the material transferred or to be transferred was:

1) Actual child pornography or -

2) An obscene and sexually explicit depiction of a minor having sex, performed by an adult.

Accordingly, webmasters need to scour their sites and promotional materials and otherwise positively act to assure that they 1) do not appear to express a belief that the materials depict minors, 2) do not appear to lead others to understand that the materials depict minors, 3) do not appear to express a belief that the materials are obscene, and 4) do not appear to lead others to understand that the materials are obscene. An appopriate Notice may be of tremendous help and all producers and webmasters should consult an attorney if youth has anything whatsoever to do with the material in order to formulate that Notice.

              No Law Group Banner with New Logo

This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420 or paged in any emergency at 312 250-4118. His e-mail address is xxxlaw@execpc.com