[Congressional Record Volume 148, Number 140 (Monday, October 28, 2002)]
[Senate]
[Pages S10796-S10797]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         ADDITIONAL STATEMENTS

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                              PROTECT ACT

 Mr. LEAHY. Mr. President, I came to the Senate floor and 
joined Senator Hatch in introducing S. 2520, the PROTECT Act in April, 
after the Supreme Court's decision in Ashcroft v. Free Speech 
Coalition, Free Speech. Although there were some others who raised 
constitutional concerns about specific provisions in that bill, I 
believed--and still believe--that unlike the Administration proposal it 
was a good faith effort to work within the First Amendment.
  It is important that we respond to the Supreme Court decision but it 
is just as important that we avoid repeating our past mistakes. Unlike 
the 1996 Child Pornography Prevention Act, CPPA, this time we should 
respond with a law that passes constitutional muster. Our children 
deserve more than a press conference in on this issue. They deserve a 
law that will stick.
  After joining Senator Hatch in introducing the PROTECT Act, I 
convened a Judiciary Committee hearing on the legislation. We heard 
from the Administration, from the Center for Missing and Exploited 
Children, CMEC, and from experts who came and told us that our bill, as 
introduced, would pass constitutional muster, but the House-passed bill 
would not.
  I also placed S. 2520 on the Judiciary Committee's calendar for the 
October 8, 2002 business meeting. I continued to work with Senator 
Hatch to improve the bill so that it could be quickly enacted. Senator 
Hatch circulated a Hatch-Leahy proposed Judiciary Committee substitute 
that improved the bill before our October 8 business meeting. 
Unfortunately, the committee was unable to consider it because of 
procedural maneuvering that had nothing to do with this important 
legislation, including the refusal of committee members on the other 
side of the aisle to consider any pending legislation on the 
committee's agenda.
  I still wanted to get this bill done. That is why for a week I have 
been working to clear and have the Senate pass a substitute to S. 2520 
that tracks the Hatch-Leahy proposed committee substitute in every area 
but also made one improvement to the affirmative defense. That one 
improvement related to the ability of defendants to assert an 
affirmative defense to a charge of child pornography if they could 
actually prove that only adults, and no children--virtual or not--were 
used in making the material in question. Other than that, it was 
identical to the Hatch-Leahy proposed committee substitute in every 
way. It did not change the definition of child pornography from the 
PROTECT Act and it also did not change the tools provided to 
prosecutors. All these provisions remained unchanged. Indeed, the 
substitute I offered even adopted parts of the House bill which would 
help the CMEC to work with local and state law enforcement on these 
cases.
  As I stated many days ago on the Senate floor, every single 
Democratic Senator cleared that measure. I then urged Republicans to 
work on their side of the aisle to clear this measure--so similar to 
the joint Hatch-Leahy substitute--so that we could swiftly enact a law 
that would pass constitutional muster.
  Instead of working to clear that bipartisan, constitutional measure, 
however, my colleagues on the other side of the aisle have opted to use 
this issue to play politics. They have redrafted the bill, changed 
crucial definitions, and are now offering a totally new version. Worse 
yet, the new version is not likely to pass Constitutional muster. 
Instead, if passed, it will lead to six more years of appellate 
litigation and yet another law struck down by the Supreme Court. That 
will help no one and certainly not help the children that these laws 
are intended to help.
  Senator Hatch is offering a new version of the bill that experts have 
told us is plainly unconstitutional and does not respect or heed the 
parameters laid down by the Supreme Court

[[Page S10797]]

as does the original Hatch-Leahy bill and the Hatch-Leahy substitute 
circulated to the Judiciary Committee.
  First, the new Hatch proposal outlaws precisely the thing that 
Justice Kennedy and at least 5 other members of the Supreme Court said 
could not be banned--wholly computer generated child pornography where 
no real children are involved in the making of the material. The Hatch 
proposal, in section 5, adds a totally new definition of ``child 
pornography'' that covers non-obscene ``computer generated images'' not 
at all related to any real person, if they are ``virtually 
indistinguishable'' from an actual minor. That is the same approach as 
the House bill, that we heard so roundly criticized both at our 
Committee hearing and by other experts. At best, it addresses the 
concerns of only Justice O'Connor--but she was not the deciding vote in 
the Free Speech case.
  Second, this new definition is particularly problematic because the 
bill does not allow any affirmative defense for defendants who can show 
that no children at all were used in the making of the non-obscene 
image. Thus, even a defendant who can produce an actual 25-year-old in 
court to prove that the material is not child pornography can be sent 
to jail under this new provision. So too can the person who can prove 
in court that the image did not involve real people at all, but only 
totally computer generated images. Again, that is precisely the problem 
that Justice Kennedy and even Justice Thomas expressed concern about in 
the Free Speech case in considering the affirmative defense in the 
CPPA.
  Third, the new Hatch proposal significantly changes the definition of 
the new crime of ``pandering'' from the original version of S. 2520 
that Senator Hatch and I introduced. First, it removes the link to the 
long-standing obscenity test despite the fact that constitutional 
experts tell us that this link is necessary for the pandering crime to 
be constitutional. This changed definition does not address Justice 
Kennedy's concern that child pornography should be linked to obscenity. 
We do not want a situation where people who present such movies as 
Traffic, American Beauty, and Romeo and Juliet could be subjected to 
criminal prosecution, and this new pandering crime does that.
  Second, the new provision compounds the constitutional problems by 
extending the provision to ``purported material'' in addition to actual 
material. Thus, not only need the pandering not relate to ``obscene'' 
material, it need not relate to any material at all.
  From a provision that criminalized primarily commercial speech 
relating to obscene material, the new proposal has changed to 
criminalize pure ``chat,'' including over the Internet, about non-
obscene child pornography. That is protected speech. I have a letter 
from Professor Fred Schauer, a nationally recognized First Amendment 
scholar who testified at our hearing, that I will place in the record 
that confirms that this change would render the provision pandering 
unconstitutional.
  These are only some of the problems with the new Hatch language. I am 
disappointed that we could not work together to clear the prior 
substitute that I have been trying to clear through the Senate for 
almost a week. That proposal was virtually identical to the proposed 
Hatch-Leahy committee substitute, and was approved by every single 
Democratic Senator. If my colleagues would have been willing to do 
that, we would have had quick action on a law that would stick. 
Instead, we are being asked to consider a brand new version of S. 2520 
with considerable constitutional problems. That is not the way to pass 
legislation quickly in the Senate.
  Unlike Senator Hatch's prior proposals that I cosponsored, this 
provision will only offer the illusion of action. We need a law with 
teeth, not one with false teeth. In the end, this provision will be 
struck down just as was the 1996 CPPA and we will have wasted 6 more 
years without providing prosecutors the tools they need to fight child 
pornography and put in jeopardy any convictions obtained under a law 
that in the end is struck down as unconstitutional. I had hoped that we 
could work together to get a law that will clearly pass constitutional 
muster. This issue is too important for politics.
  I ask that a letter from Frederick Schauer, Frank Stanton Professor 
of the First Amendment, be printed in the Record.
  The material follows:
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                           Harvard University,

                                   Cambridge, MA, October 3, 2002.
     Re S. 2520.

     Hon. Patrick Leahy,
     U.S. Senate, Committee on the Judiciary,
     Washington, DC.
       Dear Senator Leahy: Following up on my written statement 
     and on my oral testimony before the Committee on Wednesday, 
     October 2, 2002, the staff of the committee has asked me to 
     comment on the constitutional implications of changing the 
     current version of S. 2520 to change the word ``material'' in 
     Section 2 of the bill (page 2, lines 17 and 19) to 
     ``purported material.''
       In my opinion the change would push well over the 
     constitutional edge a provision that is now right up against 
     that edge, but probably barely on the constitutional side it.
       As I explained in my statement and orally, the Supreme 
     Court has from the Ginzburg decision in 1966 to the Hamling 
     decision in 1973 to the Free Speech Coalition decision in 
     2002 consistently refused to accept that ``pandering'' may be 
     an independent offense, as opposed to being evidence of the 
     offense of obscenity (and, by implication, child 
     pornography). The basic premise of the pandering prohibition 
     S. 2520 is thus in some tension with more than thirty-five 
     years of Supreme Court doctrine. What may save the provision, 
     however, is the fact that pandering may also be seen as 
     commercial advertisement, and the commercial advertisement of 
     an unlawful product or service is not protected by the 
     Supreme Court's commercial speech doctrine, as the Court made 
     clear in both Virginia Pharmacy and also in Pittsburgh Press 
     v. Human Relations Commission, 413 U.S. 376 (1973). It is 
     important to recognize, however, that this feature of 
     commercial speech doctrine does not apply to non-commercial 
     speech, where the description or advocacy of illegal acts is 
     fully protected unless under the narrow circumstances, not 
     applicable here, of immediate incitement.
       The implication of this is that moving away from 
     communication that could be described as an actual commercial 
     advertisement decreases the availability of this approach to 
     defending Section 2 of S. 2520. Although it may appear as if 
     advertising ``material'' that does not exist at all 
     (``purported material'') makes little difference, there is a 
     substantial risk that the change moves the entire section 
     away from the straight commercial speech category into more 
     general description, conversation, and perhaps even advocacy. 
     Because the existing arguments for the constitutionality of 
     this provision are already difficult ones after Free Speech 
     Coalition, anything that makes this provision less like a 
     straight offer to engage in a commercial transaction 
     increases the degree of constitutional jeopardy. By including 
     ``purported'' in the relevant section, the pandering locks 
     less commercial, and thus less like commercial speech, and 
     thus less open to the constitutional defense I outlines in my 
     written statement and oral testimony.
       I hope that this is helpful.
           Yours sincerely,

                                            Frederick Schauer,

                                           Frank Stanton Professor
     of the First Amendment.

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