In a 7-2 decision, the Supreme Court held today in United States v. Williams, (Source), that “offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment.”
I’ll leave most of the analysis of this case to the professionals, but I’d have to agree with Eugene Volokh that the decision is not so much about child pornography as it is about the government’s ability to restrict speech that solicits illegal activity. (Source.) That said, it appears the Court went out of its way to construe the statute so as not to implicate its earlier decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), (Source) which invalidated the Child Pornography Protection Act based on the Act’s prohibition of the selling and possession of materials that appeared to portray children (real or virtual) engaged in sexual conduct (actually or virtually).
MJR Note: Lets not divert our attention from Scalia’s attempt to re-define “obscenity”.
“We have long held that obscene speech — sexually explicit material that violates fundamental notions of decency — is not protected by the First Amendment. See Roth v. United States, 354 U.S. 476, 484-485”
