The US Supreme Court upheld a federal law that punishes people who advertise or solicit child pornography. The court, in a 7-2 decision, upheld the PROTECT Act (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today), the law that makes a federal crime to “pander,” of offer for sale or trade material that is advertised as child pornography. The act is a vital instrument in targeting the trafficking of online child pornography.

Justices said the child pornography “proliferated through the new medium of the Internet.”
The law also punishes any Internet user who tries to obtain child pornography from an undercover agent. A person who advertises child pornography also violates the statute. Even if the material turns out later not to be child pornography, if a person offered it for sale, or if someone intended to offer, to buy, or trade it, that person is considered guilty, said attorney Pat Trueman, who headed up the Justice Department's Child Exploitation and Obscenity Section during the 1980s.

Authorities said the pandering provision is needed because it is often difficult to prove that pornography on the Internet involved real children engaged in sexual activity. The law would apply to “any promoter – be they a braggart, exaggerator, or outright liar – who claims to have illegal pornography,” the appellate court said, even if the person had nothing more than “a video of 'Our Gang,' a dirty handkerchief or an empty pocket.”

On the other hand, the American Bookseller Foundation for Free Expression had asked the court to overturn the law, saying that the measure will restrict free-speech acts. Opponents of the law also said that it could apply to movies like “Traffic,” “Titanic,” “American Beauty,” which depict sexual activity by teenagers. They say the pandering provision went too far by punishing people for soliciting or offering images that might not involve real children.

Justice Antonin Scalia said the law takes a reasonable approach to the issue and the Congress had “responded with carefully crafted attempt to eliminate the First Amendment problems we identified.” He said that distribution of a documentary, for example, would not be punished by the law.