Bill of Rights (From public domain.)

NOTE: The following blog entry was written before the awful May 19 Supreme Court decision in U.S. v. Williams (May 19, 2008).

This blog entry follows up on my previous discussions of child pornography defense here and here.

With the current state of First Amendment caselaw relating to child pornography, it is not immediately clear that Ronald Jay McFadden will get his recent child pornography conviction overturned. Mr. McFadden was convicted for child pornography possession despite his defense attorney’s claim against a conviction on the basis that the conviction arose from Mr. McFadden’s juxtaposition of sexually explicit adult images alongside images of children — including nude images, apparently — which images his attorney claims were copied from such legitimate sources as medical publications. He faces up to life in prison based on his prior criminal convictions. Because preventing psychological and physical harm to children has been a part of the Supreme Court’s justification for limiting First Amendment protection for child pornography, New York v. Ferber, 458 U.S. 747 (1982), one is left to wonder whether the appellate courts will overturn Mr. McFadden’s conviction when considering the psychological harm that can be caused to the children depicted in his photographic juxtapositions.

If Mr. McFadden’s conviction is permitted to stand, this will point out a problem in the courts’ carving out a First Amendment exception in permitting child pornography prosecutions in the first place for the possession and distribution of such images, as opposed to convictions for procuring, photographing and videotaping children for child pornography. Through child pornography images provided in discovery by prosecutors in some of my clients’ cases, I have seen child pornography images that leave me wondering about the depths to which some humans will sink. However, I do not see how courts can stay true to the text of the First Amendment by permitting convictions for possession and distribution of child pornography — as opposed to procuring, photographing and videotaping children for child pornography — without first having the Constitution amended. Each time appellate courts narrow a plain reading of the First Amendment, such narrowing becomes fodder to narrow even some of the most cherished avenues of expression, including peaceful demonstrations at presidential conventions. If recent history is any guide, we can expect to see police and local governments requiring demonstrators to stand far away from the Democratic and Republican presidential conventions — thus preventing their message from getting to their target audience of convention attendees — and we might not see courts doing much to rectify the situation.

Thanks to Kathleen Bergin at First Amendment Law Prof Blog for writing about this McFadden child pornography prosecution, which is reported in this news article. Jon Katz