False advertising about illegal goods

United States v. Williams, --- F.3d ----, 2006 WL 871200 (11th Cir.)

You won’t find much discussion of child pornography jurisprudence on this blog, though my former colleague Amy Adler has written about it (a piece cited by this case), but this case caught my eye because of its discussion of false advertising. Michael Williams was convicted of promoting child pornography under 18 U.S.C. § 2252A(a)(3)(B) and of possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B). Though the possession sentence was affirmed, the court found (a)(3)(B) facially overbroad and unconstitutionally vague.

Williams bragged in an internet chat room about his collection of toddler pictures available for swapping with other collectors. He then swapped non-pornographic photographs of toddlers with a police investigator. After the initial photo exchange, Williams claimed he had nude photographs of his four-year-old daughter. Eventually, Williams posted actual child pornography, and a search of his home pursuant to a warrant revealed more.

Along with the possession charge, Williams was charged with one count of promoting, or "pandering," material "in a manner that reflects the belief, or that is intended to cause another to believe," that the material contains illegal child pornography.

Since child pornography is illegal, the government can ban speech that proposes its commercial sale. And, if a speaker doesn’t have illegal child porn but nonetheless offers it for sale, he’s engaged in false advertising, which the government may also ban and punish. But other laws already address this type of fraud. The court noted that the only person harmed by misleading speech is the seeker after child porn, who is “scarcely in a position to complain.” Also, the law punishes a false advertiser the same as an actual child pornographer, so selling Lilo and Stitch by making false claims about its content is a crime punishable by a minimum of 5 years in prison, a “decidedly disproportionate and draconian penalty.” Even so, since the First Amendment allows absolute bans on false advertising, the pandering provision would likely pass muster as a ban on unprotected commercial speech. However, since the law also covers noncommercial speech, the court went on to evaluate and accept Williams’ overbreadth and vagueness challenges.

The court discussed Congress’s rationale for banning pandering even without underlying illegal material: “even fraudulent offers to buy or sell unprotected child pornography help to sustain the illegal market for this material.” This rationale was rejected by the Supreme Court in Free Speech Coalition v. Ashcroft. What I find notable is that this rationale rejects the standard economic theory for punishing false advertising generally – the reason we ban false advertising is that it destroys markets, not that it sustains them.

What I suspect is going on here is a combination of two intuitions, neither of which fit the ordinary false advertising situation. The first is that advertising the existence of child porn helps legitimate desires for such materials, whether or not the advertiser has any to sell. The second, related one is that we don’t want pedophiles slavering over Lilo and Stitch or Romeo + Juliet – which is precisely the content-based regulation the Supreme Court has been loath to allow.