ABFFE Urges Supreme Court to Support Free Speech

September 06, 2007

The American Booksellers Foundation for Free Expression is urging the U.S. Supreme Court to uphold a lower court decision striking down a provision of a federal child pornography law that bans "pandering" advertisements for books, magazines, and other works protected by the First Amendment. Under the PROTECT Act of 2003, a producer, distributor, or retailer can be sentenced to up to 20 years in jail for advertising a work "in a manner that reflects the belief, or that is intended to cause another to believe" that it contains sexually explicit pictures of minors.

"It is already against the law to advertise child pornography," said ABFFE President Chris Finan. "What this law does is to punish speech about books that are protected by the First Amendment."

The American Booksellers Foundation for Free Expression (ABFFE) is urging the U.S. Supreme Court to uphold a lower court decision striking down a provision of a federal child pornography law that bans "pandering" advertisements for books, magazines, and other works protected by the First Amendment. Under the PROTECT Act of 2003, a producer, distributor, or retailer can be sentenced to up to 20 years in jail for advertising a work "in a manner that reflects the belief, or that is intended to cause another to believe" that it contains sexually explicit pictures of minors.

"It is already against the law to advertise child pornography," said ABFFE President Chris Finan. "What this law does is to punish speech about books that are protected by the First Amendment."

Finan noted that, in striking down the law, the 11th Circuit Court of Appeals concluded that it could be used to send someone to jail for 20 years for advertising as "child pornography" works that neither depict children nor are sexually explicit, such as Walt Disney's Snow White. Under the law, a person can even be sentenced to 20 years in jail for offering to sell a work that doesn't exist, he added.

In an amicus brief filed in the Supreme Court, ABFFE joined the Association of American Publishers, the Freedom to Read Foundation, and other book industry groups in warning of the potential chilling effect of this provision of the PROTECT Act. The brief argues that producers, distributors, and retailers must be free to advertise First Amendment-protected books and other works without the fear that a prosecutor will charge them with a crime.

ABFFE points out that under the PROTECT Act a prosecutor who is unhappy about the sale of photography books containing pictures of nude children might indict a bookseller for advertising child pornography based on the jacket blurbs promoting the books. (In 1997, two Barnes & Noble stores in Alabama were indicted for violating the child pornography laws by offering to sell books by photographer Jock Sturges. The charges were later dropped.)

The amicus brief states: "First Amendment rights should not be limited by a prosecutor's surmise as to the intent of a publisher or retailer, particularly when the underlying material is lawful."

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