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You say potato, I say porn

Any time Justice Ruth Bader Ginsburg utters the phrase “hard-core porn” in open court, you know it was a good oral argument day.

Such was the case this morning, when the Supreme Court heard oral arguments in U.S. v. Williams – a case where the Justices will decide whether the “pandering” provision of the PROTECT Act, which criminalizes the possession and distribution of child pornography, is constitutionally overbroad and vague since it could be used to put people in prison for offering material that is computer generated, and doesn’t feature actual children at all. UPDATE: The transcript is now available on the Supreme Court’s website as a .pdf file here.

The justices turned to hypotheticals about popular mainstream films that feature simulated sexual activity involving minors to figure out if promoting such films could land the folks Netflix and Blockbuster in prison for 5 to 20 years under the statute, as the respondent claimed.

Ginsburg pointed to a review of the film “Lolita,” a story about a man who is seduced by his mate’s underage daughter. The review, she told U.S. Solicitor General Paul Clement, stated “this film shows a 12-year-old girl having sexual relations with an old man.”

“It is a truthful statement about ‘Lolita’ is it not?” Ginsburg asked Clement. Clement, once again demonstrating why he is far too busy arguing before the Court to serve as acting attorney general right now, said that such prosecution would be avoided since there is both an objective and subjectve standard of determining what a reasonable person would consider “child porn.”

So, he said, films such as “Lolita,” “American Beauty” (a story that involves a sex scene with a purported teenager), and “Traffic” (which includes a simulated sex scene by an actress who was actually 17 years old at the time) would not constitute material that could violate the law.

“I think what you said right there would fall under the objective test,” Clement told Ginsburg, but “I don’t think it [falls within] the subjective standard.”

UPDATE 2: A preview of the story in next week’s Lawyers USA can be found here

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