“It’s Y2K Pimpin” (Online Sex Trafficking)

First Amendment Challenges to 18 U.S.C. § 2422:

Courts have also been faced with federal constitutional challenges under the First Amendment in adjudicating attempt charges under § 2422(b).  Courts have wholly rejected these challenges and have held that the statute “does not infringe on protected speech and is not unconstitutionally vague or overbroad.”

The U.S. Supreme Court held in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002), that “the overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.”  No protected speech is chilled by § 2422(b), and every Circuit Court of Appeal that has had to decide on this issue has held that § 2422(b) is not overbroad.  This is because “there is no First Amendment right to persuade minors to engage in illegal sex acts”  (United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000)), and “speech attempting to arrange the sexual abuse of children is no more constitutionally protected than speech attempting to arrange any other type of crime.”

A statute is void for vagueness if it “forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application”  (Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)). The Third Circuit Court of Appeals in United States v. Tykarsky, 446 F.3d 458, 473 (2d Cir. 2006) held that  § 2422(b) is not unconstitutionally vague because although the statute does not define the terms “persuade,” “induce,” “entice,” and “coerce,” they “have a plain and ordinary meaning that does not need further technical explanation.”   The court stated that “the absence of definitions for these terms poses no danger of chilling legitimate speech.”

§ 2422(b) regulates only conduct, not speech.  “No otherwise legitimate speech is jeopardized by § 2422(b) because the statute only criminalizes conduct, i.e., the targeted inducement of minors for illegal sexual activity.  Speech is merely the vehicle through which a pedophile ensnares the victim. Moreover, the scienter and intent requirements of the statute sufficiently limit criminal culpability to reach only conduct outside the protection of the First Amendment.”

Some question where the line between mere asking and persuading is drawn, but “any ambiguity in § 2422(b) is no greater than that found in many criminal statutes.”   § 2422(b) does not prohibit all communications with a minor; nor does it prohibit all communications that relate to illegal sexual activity. It only proscribes communications that actually or attempt to knowingly “persuade,” “induce,” “entice” or “coerce” a minor to engage in illicit sexual activity.  Therefore, it only affects those who intend to target minors…it does not punish those who inadvertently speak with minors.  These terms are sufficiently precise to give a person of ordinary intelligence fair notice as to what is permitted and what is prohibited and to prevent arbitrary and discriminatory enforcement.


~ by natalielaw on November 15, 2010.

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