In November 2013, meanwhile, Google pledged to further crack down on access to child porn via its search engine. "In the last three months [we] put more than 200 people to work developing new, state-of-the-art technology to tackle the problem," Google executive chairman Eric Schmidt wrote in an op-ed at the time.
In Ashcroft, the court held that a law against “virtual” child porn–in which no actual children were involved in the production–was unconstitutional. The government argued that the market for virtual, computer-created child porn helped foster a market for the real thing, and that it was hard for prosecutors to tell the difference between the real stuff and computer-generated material. The Court rejected this argument for “turn[ing] the First Amendment upside down.” 535 U.S. at 255. It noted that such an argument would “allow[] persons to be convicted in some instances where they can prove children were not exploited in the production,” id. at 256, which is clearly unconstitutional because it would “leave[] unprotected a substantial amount of speech not tied to the Government’s interest in distinguishing images produced using real children from virtual ones.”
Now, in United States v. Williams, 128 S.Ct. 1830 (2008), a few months ago, the Court upheld the constitutionality of a law that banned solicitation (that is, offers to provide, or requests for) child porn. The law also makes it illegal to offer virtual child porn as depicting actual children. Id. at 1839. But here, too, the Court emphasized that it was not expanding the category of unprotected speech: “an offer to provide or request to receive virtual child pornography is not prohibited by the statute. A crime is committed only when the speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children. It is simply not true that this means ‘a protected category of expression [will] inevitably be suppressed.’ Simulated child pornography will be as available as ever, so long as it is offered and sought as such, and not as real child pornography.” Id. at 1844.