[Congressional Record Volume 148, Number 148 (Friday, November 15, 2002)]
[Senate]
[Pages S11199-S11204]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            THE PROTECT ACT

  Mr. LEAHY. Mr. President, last night the Senate passed, by unanimous 
consent, the Hatch-Leahy PROTECT Act providing important new tools to 
fight child pornography. I want to take a moment to speak about the 
passage of this important bill and the effort that it took to get to 
this point. Although they have recessed subject to the recall of the 
Speaker of the House, I also want to implore the Republican leadership 
in the House of Representatives not to miss this important opportunity 
to pass such important bipartisan legislation as this.
  In April, I came to the Senate floor and joined Senator Hatch in 
introducing S. 2520, the PROTECT Act, 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.
  Everyone in the Senate agrees that we should do all we can to protect 
our children from being victimized by child pornography. That would be 
an easy debate and vote. The more difficult thing is to write a law 
that will both do that and will stick. In 1996, when we passed the 
Child Pornography Prevention Act, ``CPPA'', many warned us that certain 
provisions of that Act violated the First Amendment. The Supreme 
Court's recent decision in Free Speech has proven them correct.
  We should not sit by and do nothing. It is important that we respond 
to the Supreme Court decision. It is just as important, however, that 
we avoid repeating our past mistakes. Unlike the 1996 CPPA, this time 
we should respond with a law that passes constitutional muster. Our 
children deserve more than a press conference on this issue. They 
deserve a law that will last.
  It is important that we do all we can to end the victimization of 
real children by child pornographers, but it is also important that we 
pass a law that will withstand First Amendment scrutiny. We need a law 
with real teeth, not one with false teeth.
  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 National Center for Missing and 
Exploited Children, NCMEC, and from experts who came and told us that 
our bill, as introduced, would pass constitutional muster, but the 
House-passed bill would not.

[[Page S11200]]

  I then 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 Judiciary Committee was unable to consider it because 
of procedural maneuvering by my colleagues 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 full week in 
October, I worked to clear and have the full Senate pass a substitute 
to S. 2520 that tracked the Hatch-Leahy proposed committee substitute 
in nearly every area. Indeed, the substitute I offered even adopted 
parts of the House bill which would help the NCMEC work with local and 
state law enforcement on these cases. Twice, I spoke on the Senate 
floor imploring that we approve such legislation. As I stated then, 
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. 
Unfortunately, instead of working to clear that bipartisan, 
constitutional measure, colleagues on the other side of the aisle opted 
to use this issue to play politics before the election.
  They redrafted the bill, changed crucial definitions, and offered a 
new version. Facing the recess before the mid-term elections, we were 
stymied again.
  Even after the election, however, during our lame duck session, I 
have continued to work with Senator Hatch to pass this legislation 
through the Senate. As I had stated I would do prior to the election, I 
called a meeting of the Judiciary Committee yesterday. In the last 
meeting of the Judiciary Committee under my Chairmanship in the 107th 
Congress, I placed S. 2520, the Hatch-Leahy PROTECT Act, on the agenda 
again. At that meeting the Judiciary Committee approved this 
legislation, as amended. We agreed on a substitute and to improvements 
in the victim shield provision that I authored. Although I did not 
agree with two of Senator Hatch's amendments because I thought that 
they risked having the bill declared unconstitutional, I nevertheless 
both called for the Committee to approve the bill and voted for the 
bill in its amended form.
  I then sought, that same day, to gain the unanimous consent of the 
full Senate to pass S. 2520 as reported by the Judiciary Committee, and 
I worked with Senator Hatch to clear the bill on both sides of the 
aisle. I am please that late last night that the Senate passed S. 2520 
by unanimous consent. I want to thank Senator Hatch for his help 
clearing the bill for passage last night.
  I am glad to have been able to work hand in hand with Senator Hatch 
on S. 2520, the PROTECT Act, a bill that gives prosecutors and 
investigators the tools they need to combat child pornography. The 
Hatch-Leahy PROTECT Act strives to be a serious response to a serious 
problem.
  The provisions of the Hatch-Leahy bill, S. 2520, as we introduced it 
are bipartisan and good faith efforts to protect both our children and 
to honor the Constitution. At our hearing last month, Constitutional 
and criminal law scholars--one of whom was the same person who warned 
us last time that the CPPA would be struck down--stated that the 
PROTECT Act could withstand Constitutional scrutiny, although there 
were parts that were very close to the line.
  Unfortunately these experts could not say the same about the 
administration's bill, which seems to challenge the Supreme Court's 
decision, rather than accommodate the restraints spelled out by the 
Supreme Court. I have also received letters from other Constitutional 
scholars and practitioners expressing the same conclusion, which I will 
place in the Record with unanimous consent. The Administration's 
proposal and House bill simply ignore the Supreme Court's decision and 
reflect an ideological response instead of a carefully drawn bill that 
will stand up to scrutiny.

  The PROTECT Act is a good faith effort, but it is not perfect and I 
would have liked to have seen some additional changes to the bill. 
Unfortunately, I could not obtain agreement to make the following 
modifications:
  First, regarding the tip line, I would have liked to clarify that law 
enforcement agents cannot ``tickle the tip line'' to avoid the key 
protections of the Electronic Communications Privacy Act.
  Second, regarding the affirmative defense, I would have liked to 
ensure that there is an affirmative defense for the new category of 
child pornography and for all cases where a defendant can prove in 
court that a specific, non-obscene image was made using not any child 
but only actual, identifiable adults.
  Nevertheless, we were able to reach agreement in Committee on 
modifying the bill with my amendment to the victims' shield law by 
giving federal judges and prosecutors the discretion to override the 
new victim shield law when there is good cause, such as cases where the 
shield law is actually used as a sword by the defendant to help assert 
a defense.
  As a general matter, I would have thought it far simpler to take the 
approach of outlawing ``obscene'' child pornography of all types, which 
we do in one new provision that I suggested. That approach would 
produce a law beyond any possible challenge. This approach is also 
supported by the National Center for Missing and Exploited Children, 
which we all respect as the true expert in this field.
  Following is an excerpt from the Center's answer to written questions 
submitted after our hearing, which I will place in the Record in its 
entirety:

       Our view is that the vast majority (99-100%) of all child 
     pornography would be found to be obscene by most judges and 
     juries, even under a standard of beyond a reasonable doubt in 
     criminal cases. Even within the reasonable person under 
     community standards model, it is highly unlikely that any 
     community would not find child pornography obscene. . . .
       In the post Free Speech decision legal climate the 
     prosecution of child pornography under an obscenity approach 
     is a reasonable strategy and sound policy.

  Thus, according to the National Center for Missing and Exploited 
Children, the approach that is least likely to raise constitutional 
questions--using established obscenity law--is also an effective one.
  Because that is not the approach we decided to use, I recognize that 
S. 2520 contains provisions about which some may have legitimate 
Constitutional questions. These provisions include:
  A new ``pandering'' provision with a very wide scope;
  a new definition of `obscenity' that contains some, but not all, of 
the elements of the Supreme Court's test;
  a new affirmative defense for pornography made not using any minors 
that does not apply to one new category of child pornography.
  These provisions raise legitimate concerns, but in the interest of 
making progress I am pleased, as Chairman of the Judiciary Committee, 
to have tried to balance all the competing interests to produce a bill 
with the best chance of withstanding a constitutional challenge.
  That is not everyone's view. Others evidently think it is more 
important to make an ideological statement than to write a law. A media 
report just this week on this legislation noted the wide consensus that 
S. 2520 is more likely than the House bill to withstand scrutiny, but 
quoted a Republican House member as stating: ``Even if it comes back to 
Congress three times we will have created better legislation.''
  To me, that makes no sense. Why not create the ``better legislation'' 
right now for today's children, instead of inviting more years of 
litigation and putting at risk any convictions obtained in the interim 
period before the Supreme Court again reviews the constitutionality of 
Congress' effort to address this serious problem? That is what S. 2520 
seeks to accomplish as drafted.
  I want to commend Senator Hatch for working with me to include many 
other important provisions in the Hatch-Leahy bill that we developed 
together and are not as controversial. These include:
  A tough new private right of action for victims of child pornography 
with punitive damages;

[[Page S11201]]

  a victims' shield law to keep child victim's identity out of court 
and prevent them from suffering a second time in the criminal process;
  a new notice provision designed to stop ``surprise defenses;''
  sentencing enhancements for recidivists and a directive to correct 
the disparity in the current sentencing guidelines that provides a 
lighter sentence for offenders who cross state lines to actually molest 
a child than for offenders who possess child pornography that has 
crossed State lines.
  These provisions are important, practical tools to put child 
pornographers out of business for good and in jail where they belong.
  I support S. 2520 as a good faith effort to protect our children and 
honor the Constitution, and the Committee substitute, which improved 
upon the original bill.
  There were two amendments adopted in Committee to which I objected. I 
felt that they needlessly risked a serious constitutional challenge to 
a bill that already provided prosecutors the tools they needed to do 
their jobs. Let me discuss my opposition to two amendments offered by 
my good friend Senator Hatch that were adopted by voice vote by the 
Judiciary Committee.

  Although I worked with Senator Hatch to write the new pandering 
provision in S. 2520, I do not support Senator Hatch's amendment, which 
criminalizes speech even when there is no underlying material at all--
whether obscene or non-obscene, virtual or real, child or adult.
  The pandering provision is an important tool for prosecutors to 
punish true child pornographers who for some technical reason are 
beyond the reach of the normal child porn distribution or production 
statutes. It is not meant to federally criminalize talking dirty over 
the internet or the telephone when the person never possesses any 
material at all. That is speech, and that goes too far.
  The current pandering provision in S. 2520 is quite broad, and some 
have argued that it presents constitutional problems as written, but I 
thought that prosecutors needed a strong tool, so I supported Senator 
Hatch on the current provision.
  I was heartened that Professor Schauer of Harvard, a noted First 
Amendment expert, testified at our hearing that he thought that the 
provision was Constitutional, barely.
  Unfortunately, Professor Schauer has since written to me stating that 
this new amendment ``would push well over the constitutional edge a 
provision that is now up against the edge, but probably barely on the 
constitutional side of it.'' I will place that letter and other 
materials in the Record with unanimous consent of the Senate.
  Because this amendment endangers the entire pandering provision, 
because it is unwise, and because that section is already strong enough 
to prosecute those who peddle child pornography, I oppose this 
amendment. Nevertheless, in light of the broader support for this 
amendment on the Committee, it was adopted over my objection.
  Senator Hatch and I agree that legislation in this area is important. 
But regardless of our personal views, any law must be within 
constitutional limits or it does no good at all. Even though it is 
close to the line, I support S. 2520 as Senator Hatch and I introduced 
it in the Senate. Senator Hatch's amendment which would include all 
``virtual child pornography'' in the definition of child pornography, 
in my view, crosses the constitutional line, however, and needlessly 
risks protracted litigation that could assist child pornographers in 
escaping punishment.
  Although I joined Senator Hatch in introducing S. 2520, even when it 
was introduced I expressed concern over certain provisions. One such 
provision was the new definition of ``identifiable minor.'' When the 
bill was introduced, I noted that this provision might ``both confuse 
the statute unnecessarily and endanger the already upheld `morphing' 
section of the CPPA.'' I said I was concerned that it ``could present 
both overbreadth and vagueness problems in a later constitutional 
challenge.''
  The Supreme Court made it clear that we can only outlaw child 
pornography in two situations: No. 1, it is obscene, or No. 2, it 
involves real kids. That is the law as stated by the Supreme Court, 
whether or not we agree with it.
  The ``identifiable minor'' provision in S. 2520 may be used without 
any link to obscenity doctrine. Therefore, what saves it is that it 
applies to child porn made with real ``persons.'' The provision is 
designed to cover all sorts of images of real kids that are morphed or 
altered, but not something entirely made by computer, with no child 
involved. That is the provision as Senator Hatch and I introduced this 
bill.
  The Hatch amendment adopted in Committee that redefined 
``identifiable minor'' by creating a new category of pornography for 
any ``computer generated image that is virtually indistinguishable from 
an actual minor'' dislodged, in my view, that sole constitutional 
anchor. The new provision could be read to include images that never 
involved real children at all but were 100 percent computer generated.
  That was never the goal of this provision and that was the reason it 
was constitutional. There are other provisions in the bill that deal 
with obscene virtual child pornography that I support. This provision 
was intended to ease the prosecutor's burden in cases where images of 
real children were cleverly altered to avoid prosecution.
  I support the definition of `identifiable minor' as we originally 
wrote and introduced it. Because Senator Hatch's amendment seriously 
weakened the constitutional argument supporting this entire provision, 
I opposed it. Nevertheless, given the broader support for this 
amendment on the Judiciary Committee it was been adopted, over my 
objection and I still sought passage of the bill, which we achieved 
last night.
  Even though S. 2520 is not perfect, I was glad that I was able to 
work with Senator Hatch to secure its approval last night. I had hoped 
that the House of Representatives would adopt the bill before they 
recessed for the end of the year. That way, we could have sent a bill 
to the President for his signature right now. Instead, the House of 
Representatives' Republican leadership decided to adjourn without 
either taking up the Hatch-Leahy bill or working with us to resolve any 
differences. I hope that the House leadership will reconsider this 
decision and consider this measure, rather than start all over again in 
the next Congress. It is certainly unfortunate that the House 
Republican leadership would rather adjourn for a recess than take the 
opportunity to pass a bipartisan bill which passed the Senate 
unanimously.
  As I have explained, I believe that this issue is so important that I 
have been willing to compromise and to support a measure even though I 
do not agree with each and every provision that it contains. That is 
how legislation is normally passed. Again, however, I fear that some in 
the Administration and the House have decided to play politics with 
this issue that is so important to our nation's children. I urge them 
to reconsider their ``take it or leave it approach'' and consider the 
Hatch-Leahy PROTECT Act--or at least come back to discuss our 
differences.
  I ask unanimous consent that the letters and materials to which I 
referred be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                            University of Virginia


                                                School of Law,

                                              Charlottesville, VA.
     Senator Patrick J. Leahy,
     Chairman, Senate Committee on the Judiciary, Washington, DC.
       Dear Chairman Leahy: On October 2, 2002, I testified before 
     the Senate Judiciary Committee concerning S. 2520 and H.R. 
     4623. Each of these bills was drafted in response to Ashcroft 
     v. Free Speech Coalition, 122 S. Ct. 1389 (2002), in which 
     the Supreme Court threw out key provisions of the federal 
     child pornography laws. As I stated in my testimony, the new 
     sections contained in S. 2520 have been carefully tailored 
     with an eye towards satisfying the precise concerns 
     identified by the Supreme Court. Recently, Senator Hatch 
     offered an amendment in the nature of a substitute to S. 2520 
     (hereinafter ``the Hatch Substitute''). I have examined the 
     Hatch Substitute, and I believe that it contains a definition 
     of child pornography that is nearly identical to the 
     definition rejected by Free Speech Coalition. Therefore, the 
     Hatch substitute is unlikely to survive constitutional 
     challenge in the federal courts, and the Committee should 
     decline to adopt it.
       As you know, each of these bills contains some complicated 
     provisions, including especially their definition sections. 
     As you also

[[Page S11202]]

     know, this complexity is unavoidable, for the Congress aims 
     to intervene in and eliminate some of the complex law 
     enforcement problems created by the phenomenon of virtual 
     pornography. In the following comments, I will try to state 
     my concerns about the Hatch Substitute as concisely as 
     possible, while identifying the statutory nuances that are 
     likely to generate significant constitutional questions in 
     the event that the Hatch Substitute is enacted.
       In Free Speech Coalition, the Supreme Court scrutinized 
     provisions of the Child Pornography Prevention Act of 1996 
     (``CPPA'') that were designed to eliminate obstacles to law 
     enforcement created by virtual child pornography. The 
     proliferation of virtual pornography has enabled child 
     pornographers to escape conviction by arguing that it is so 
     difficult to distinguish the virtual child from the real one 
     that (1) the government cannot carry its burden of proving 
     that the pornography was made using real children and/or (2) 
     the government cannot carry its burden of providing scineter 
     because the defendants believed that the images in their 
     possession depicted virtual children, rather than real ones. 
     In order to foreclose these arguments, the CPPA defined 
     ``child pornography'' broadly so that it extended not only to 
     a sexually-explicit image that had been produce using a real 
     minor, but also to an image that ``appears to be of a minor'' 
     engaging in sexually-explicit conduct. Free Speech Coalition 
     rejected this definition of First Amendment grounds. The 
     Court reaffirmed the holding of New York v. Ferber, 458 U.S. 
     747 (1982), under which the government is free to regulate 
     sexually-explicit materials produced using real minors 
     without regard to the value of those materials. However, the 
     Court refused to extend the Ferber analysis to sexually-
     explicit materials that only appear to depict minors. The 
     court noticed that many mainstream movies, as well as works 
     of great artistic, literary, and scientific significance, 
     explore the sexuality of adolescents and children. Such 
     works, including ones that are sexually explicit, are 
     valuable in the eyes of the community, and, as long as 
     their production involves no real children, such works are 
     protected by the First Amendment against governmental 
     regulation.
       In Free Speech Coalition, the Supreme court expressly 
     considered and rejected a number of arguments made by the 
     Solicitor General on behalf of the CPPA definition. One of 
     these arguments was that the ``speech prohibited by the CPPA 
     is virtually indistinguishable from child pornography, which 
     may be banned without regard to whether it depicts works of 
     value.'' In his opinion for the Court, Justice Kennedy 
     explained that this argument fundamentally misconceived the 
     nature of the First Amendment inquiry. Materials that satisfy 
     the Ferber definition are regulable not because they are 
     necessarily without value; to the contrary, Ferber itself 
     recognized that some child pornography might have significant 
     value. Indeed, the Court there reasoned that the ban on the 
     use of actual children was permissible in part because 
     virtual images--by definition, images ``virtually 
     indistinguishable'' from child pornography--were an available 
     and lawful alternative. Hence, as Justice Kennedy put it: 
     ``Ferber, then, not only referred to the distinction between 
     actual and virtual child pornography, it relied on [the 
     distinction] as a reason supporting its holding. Ferber 
     provides no support for a statute that eliminate the 
     distinction and makes the alternative mode criminal as 
     well.''
       S. 2520 aims to reform the CPPA in ways that are sensitive 
     to these First Amendment value judgments. By contrast, the 
     Hatch Substitute proposes that the Congress should reenact a 
     definition that is almost identical to the one that the 
     Supreme Court just rejected. In the Hatch Substitute, the 
     definition of child pornography would cover, among other 
     things, sexually-explicit materials whose production involved 
     the use of an ``identifiable minor.'' The Hatch Substitute 
     defines ``identifiable minor'' as including a ``computer or 
     computer generated image that is virtually indistinguishable 
     from an actual minor.'' As I explained above, the Solicitor 
     General suggested in Free Speech Coalition that the First 
     Amendment would be satisfied if the Supreme Court limited the 
     CPPA to depictions that are ``virtually indistinguishable'' 
     from child pornography, and the Court rejected that 
     interpretation. To put it mildly, it is hard to imagine that 
     the Supreme Court would be inclined to view the Hatch 
     Substitute as a good faith legislative responses to Free 
     Speech Coalition when all it does is reenact a definition 
     that the Court there expressly considered and disapproved. 
     You will notice that I here am paraphrasing the definition 
     provisions in the Hatch Substitute and omitting some of their 
     complexity. In particular, the Hatch Substitute provides a 
     further definition of the phrase ``virtually 
     indistinguishable,'' requiring that the quality of the 
     depiction be determined from the viewpoint of an ``ordinary 
     person'' and providing an exception for ``drawings, cartoons, 
     sculptures, or paintings.'' But neither the definition of 
     ``identifiable minor'' nor these refinements of ``virtually 
     indistinguishable'' are calculated to satisfy the concerns 
     raised in Free Speech Coalition. As Justice Kennedy explained 
     for the Court, an absolute ban on pornography made with real 
     children is compatible with First Amendment rights precisely 
     because computer-generated images are an available 
     alternative, and, yet, the Hatch Substitute proposed to 
     forbid the computer-generated alternative as well. Likewise, 
     an exception for cartoons and so forth is insensitive to the 
     Supreme Court's commitment to protect realistic portrayals of 
     child sexuality, a commitment that is clearly expressed in 
     the Court's recognition of the value of (among other things) 
     mainstream movies such as Traffic and American Beauty.
       In this regard, you will notice that the Hatch Substitute 
     closely resembles some of the defective provisions of H.R. 
     4623, which would prohibit virtual child porn that is 
     ``indistinguishable'' from porn produced with real minors. 
     Unlike S. 2520, both H.R. 4623 and the Hatch Substitute seem 
     to embody a decision merely to endorse the unconstitutional 
     portions of the CPPA all over again. The Committee should 
     refuse to engage in such a futile and disrespectful exercise. 
     The law enforcement problems posed by virtual pornography are 
     not symbolic but real, and the Congress should make a real 
     effort to solve them. In my judgment, S. 2520 is a real 
     effort to solve them, and the Committee should use S. 2520 as 
     the basis for correcting the CPPA.
       The Hatch Substitute contains additional innovations that 
     the Committee should study carefully. Because this letter 
     already is too long, I will allude to only one of them here. 
     The ``pandering'' provision set forth in the Hatch Substitute 
     contains some language that strikes me as being both vague 
     and unnecessarily broad, and the provision therefore is 
     likely to attract unfavorable attention in the federal 
     courts. The Hatch pandering provision would punish anyone who 
     ``advertises, promotes, presents, distributes, or solicits . 
     . . any material or purported material in a manner that 
     conveys the impression that the material or purported 
     material'' is child pornography. To be completely candid, I 
     am not sure that I understand what problems would be solved 
     by defining the items that may not be pandered so that they 
     include not only actual ``material,'' but also ``purported 
     material.'' I suppose that there might be cases where a 
     person offers to sell pornographic materials that do not 
     actually exist and that the person might make the offer in a 
     manner that violates the pandering prohibition. If that is 
     the problem that the drafters of the Hatch Substitute have in 
     mind, it seems that they might solve that problem more 
     cleanly by adding the word ``offers'' to the list of 
     forbidden conduct and deleting the references to ``purported 
     material.'' (In other words, the provision would punish 
     anyone who ``advertises, offers, promotes, presents, 
     distributes, or solicits through the mails . . . any material 
     in a manner that conveys the impression that the material'' 
     is child pornography.) If that is not the problem that the 
     Hatch Substitute has in mind, I would suggest that the 
     drafters identify the problem precisely and develop language 
     that is clearer and narrower than the phrase ``purported 
     material,'' for that ambiguous term is likely to generate 
     First Amendment concerns that otherwise could and should be 
     avoided.
           Respectfully yours,
                                                 Anne M. Coughlin,
     Class of 1948 Research Professor of Law.
                                  ____



                                    The Communitarian Network,

                                 Washington, DC, October 11, 2002.
     Hon. Patrick J. Leahy,
     Chairman, U.S. Senate, Committee on the Judiciary, 
         Washington, DC.
       Dear Chairman Leahy: I want to thank you for your efforts 
     to protect American children by filling the gap left by the 
     Supreme Court's decision to strike down the Child Pornography 
     Prevention Act. Ashcroft v. Free Speech Coalition dealt a 
     blow to those who appreciate the important role the federal 
     government must play in protecting young people from those 
     who would exploit them. Your efforts to craft a bill, the 
     PROTECT Act, that will withstand Constitutional scrutiny 
     deserves the public's applause.
       I would like to draw your attention to a similar, but 
     separate, matter that also reflects on the health and 
     security of our children in regards to pornography. Like the 
     Child Pornography Prevention Act, the Child Internet 
     Protection Act (CIPA), which was passed by the 106th 
     Congress, has been struck down by the federal judiciary. In 
     American Library Association, et al. v. United States of 
     America, et al, a District Court in Pennsylvania threw CIPA 
     out, arguing that its efforts to prevent children from 
     exposure to harmful material on school and library computers 
     amounted to a violation of the First Amendment. The Justice 
     Department has appealed that case to the Supreme Court, where 
     the lower court's decision will very likely be upheld. 
     Unfortunately, as Harvard Law School professor Frederick 
     Schauer testified at the hearing you recently held on CPPA, 
     ``constitutionally suspect legislation under existing Supreme 
     Court interpretation of the First Amendment, whatever we may 
     think of the wisdom and accuracy of those interpretations, 
     puts the process of [prosecution] . . . on hold while the . . 
     . courts proceed at their own slow pace.''
       I think we ought not wait for what will likely be a 
     disappointing conclusion. Rather, I hope you will lead an 
     effort to craft new legislation which (1) passes 
     Constitutional muster, and (2) better enables schools and 
     libraries to protect children from harmful images and 
     websites. Let me take a moment to delimit how exactly a new, 
     improved Children's Internet Protection Act would differ from 
     the bill passed by the 106th Congress.
       First, a new bill should distinguish clearly between 
     measures affecting adults and minors. Though the title of the 
     legislation is

[[Page S11203]]

     the Children's Internet Protection Act, it requires 
     technology protection measures on all computers with Internet 
     access, regardless of the age of the patron using each 
     computer. If the aim is to protect minors, it is unnecessary 
     to put filters on every computer in a library. This, of 
     course, was one of the District Court's primary concerns. I 
     hope you will draft legislation requiring separate computers 
     for adults and minors. All those under 18 should be required 
     to use filtered computers, unless accompanied by a parent or 
     teacher. Those over 18 should have access to un-filtered 
     computers in a separate area. In smaller facilities, where 
     only one computer is available, special adult hours could be 
     set during which the filter is disabled and only adults may 
     use the computer. The rest of the time a filter would be in 
     place.
       Second, I would encourage you to incorporate language that 
     distinguishes children 12 and under from teenagers 13-18. 
     Teenagers have greater capacities to process information than 
     children, as well as different needs for information. In 
     recognition of this, I would hope that your new bill would 
     require different policies for children and teenagers, such 
     as providing different filter settings.
       Third, I hope you will consider expanding the scope of your 
     bill to include provisions that protect minors from violent 
     images as well as sexual ones. I realize that limiting the 
     access of children to violent content poses a potentially 
     more difficult constitutional question, but based on the 
     weight of social science evidence showing the harm caused to 
     children by violence in the media, I believe that violence 
     must be included in any definition of content that is 
     ``harmful to children.''
       To further explain the reasoning behind these 
     recommendations, I am enclosing a law review article, ``On 
     Protecting Children from Speech,'' which will be published 
     next fall in the Chicago-Kent Law Review. I would welcome the 
     opportunity to discuss our position with you further. In the 
     meantime, please feel free to contact Marc Dunkelman, 
     Assistant Director of the Communitarian Network, with any 
     questions. Thank you for your consideration.
           Sincerely,
     Amitai Etzioni.
                                  ____

                                                     May 13, 2002.
     Chairman Patrick J. Leahy,
     U.S. Senate Judiciary Committee
     Washington, D.C.
       Dear Chairman Leahy: We write to express our grave concern 
     with the legislation recently proposed by the Department of 
     Justice in response to the Supreme Court's decision in 
     Ashcroft, et al. v. The Free Speech Coalition, et al., No. 
     00-795 (Apr. 16, 2002). In particular, the proposed 
     legislation purports to ban speech that is neither obscene 
     nor unprotected child pornography (indeed, the bill expressly 
     targets images that do not involve real human being at all). 
     Accordingly, in our view, it suffers from the same 
     infirmities that led the Court to invalidate the statute at 
     issue in Ashcroft.
       We emphasize that we share the revulsion all Americans feel 
     toward those who harm children, and fully support legitimate 
     efforts to eradicate child pornography. As the Court in 
     Ashcroft emphasized, however, in doing so Congress must act 
     within the limits of the First Amendment. In our view, the 
     bill proposed by the Department of Justice fails to do so.
           Respectfully submitted,
       Jodie L. Kelley, Partner, Jenner & Block, LLC; Washington, 
     DC.
       Erwin Chemerinsky, Sydney M. Irmas Professor of Public 
     Interest Law, Legal Ethics and Political Science, University 
     of Southern California, Law School; Los Angeles, CA.
       Paul Hoffman, Partner, Schonbrun, DeSimone, Seplow, Harris 
     & Hoffman, LLP; Venice, CA.
       Adjunct Professor, University of Southern California Law 
     School; Los Angeles, CA.
       Gregory P. Magarian, Assistant Professor of Law, Villanova 
     University School of Law; Villanova, PA.
       Jamin Raskin, Professor of Law, American University, 
     Washington College of Law; Washington, DC.
       Donald B. Verrilli, Jr., Partner, Jenner & Block, LLC; 
     Washington, DC.
                                  ____



                                           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 of 
     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 
     in 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 looks 
     less commercial, and thus less like commercial speech, and 
     thus less open to the constitutional defense I outlined in my 
     written statement and oral testimony.
       I hope that this is helpful.
           Yours sincerely,

                                            Frederick Schauer,

                                    Frank Stanton Professor of the
     First Amendment.
                                  ____



                                     The Media Coalition Inc.,

                                 New York, NY, September 23, 2002.
     Re S. 2520 and H.R. 4623.

     Sentor Patrick J. Leahy,
     Chairman, Committee on the Judiciary, Washington, DC
     Sen. Orrin G. Hatch,
     Ranking Republican Member, Committee on the Judiciary, 
         Washington, DC
       Dear Senators Leahy and Hatch: I am General Counsel of The 
     Media Coalition, a trade association whose members represent 
     most of the publishers, booksellers, librarians, periodical 
     wholesalers and distributors, movie, recording and video game 
     manufacturers, and recording and video retailers in the 
     United States. While Media Coalition and its members 
     unanimously deplore child pornography and support prosecution 
     of offenders, they are also concerned that the dictates of 
     the First Amendment remain inviolate, even as to material 
     that one finds to be offensive.
       The Media Coalition and its members believe that the 
     various attempts to respond to the decision in Ashcroft v. 
     Free Speech Coalition, 122 S.Ct. 1389 (2002), are 
     unconstitutional and problematic in a number of respects, as 
     described below.


                                S. 2520

       1. As to proposed Sec. 2252A(a)(3)(B)--the ``pandering'' 
     provision--it seems to criminalize commercial fraud as child 
     pornography. Ginzburg v. U.S., 383 U.S. 463 (1966), held only 
     that pandering could convert borderline non-obscene material 
     into obscenity. (``Where the purveyor's sole emphasis is on 
     the sexually provocative aspects of his publications, that 
     fact may be decisive in the determination of obscenity.'') 
     This goes must further. It applies without regard to the 
     nature or quality of the material ``pandered''.
       2. Proposed Sec. 2252A(c) adds an affirmative defense that, 
     for computer-generated images, each pictured person was an 
     adult and, for virtual child pornography, it was not produced 
     using any actual minor. With respect to non-virtual child 
     pornography, this results in a reversal of the usual burden 
     of proof. IN a prosecution for traditional child pornography 
     (e.g., as defined in Sec. 2256(8)(A)), one of the elements of 
     the crime that the government must prove is that the 
     production of the material involved the use of a minor. 
     Further, under United States v. X-Citement Video, Inc., 
     513U.S. 64 (1994), in the case of a librarian, retailer or 
     distributor, the government must prove that he or she knew 
     that the material was of an actual minor. This proposal 
     impermissibly and unconstitutionally shifts this burden.
       With respect to virtual child pornography, there are 
     similar constitutional problems. The Supreme Court in Free 
     Speech Coalition found that the evil in child pornography, 
     and the basis for excluding it from First Amendment 
     protection, is the unlawful conduct vis-a-vis an actual 
     child. Thus, the Court held that, unless an actual child is 
     used and thus abused in the creation of the material, there 
     can be no crime as to otherwise First Amendment-protected 
     material. The government must provide this necessary factual 
     predicate. To shift the burden of proof as to this 
     necessary element of the crime to the defendant is 
     unconstitutional, even putting aside the often impossible 
     task of proving the negative--that no child was used.
       3. S. 2520 also amends the record-keeping provisions, which 
     themselves have had a checkered constitutional history, 
     having

[[Page S11204]]

     been held unconstitutional (ALA v. Thornburgh, 713 F. Supp. 
     469 (D.D.C. 1989)), revised in 1990, again held 
     unconstitutional by the District Court (ALA v. Barr, 794 F. 
     Supp. 412 (D.D.C. 1992)), held constitutional, although 
     certain regulations were invalidated (ALA v. Reno. 33 F. 3d 
     78 (D.C. Cir. 1994)), and subsequently the Tenth Circuit has 
     held a regulation more central to the regulatory scheme 
     unconstitional (Sundance Assocs. Inc. v. Reno, 139 F. 3d 804 
     (10th Cir. 1998)). Throughout, however, the records kept have 
     been barred from use in prosecutions other than for the 
     failure to keep the records.
       S. 2520 would permit the use of the recordkeeping records 
     in a child pornography prosecution. However, requiring 
     producers to maintain records at the risk of criminal 
     liability for not doing so, which records can be used against 
     them in a child pornography prosecution, violates the 
     constitutional prohibition against mandatory self-
     incrimination.
       4. Finally, there is a provision in Section 9 creating a 
     new Sec. 2252A(f), which is particularly pernicious. It 
     permits a person aggrieved by reason of child pornography to 
     commence a civil action for injunction relief and 
     compensatory and punitive damages. First, it is vague, since 
     both the grievance and the person aggrieved are apparently in 
     unlimited, undefined categories; and the potential civil 
     defendant is in another unlimited, undefined category. 
     Moreover, apparently a defendant is liable whether or not he 
     or she knows of the minority of the child. And, since it 
     applies to both the pandering and ``appears to be'' prongs of 
     the statute, there may be civil liability even when no child 
     is involved.
       Most important, it opens a Pandora's Box. Under state law, 
     a person using a minor to create child pornography is not 
     only criminally liable, but is also liable to the child whom 
     he or she has used. But to open the protected class to 
     parents, spouses, etc. and the defendant class to 
     distributors, retailers, etc. is inappropriate and ultimately 
     harmful to legitimate First Amendment interests. It raises 
     the specter of the Pornography Victims Compensation Act, 
     which raised such an outcry that it failed to pass Congress.


                               h.r. 4623

       A. Section 3(a) of the Bill criminalizes as child 
     pornography computer images as long as they are, or are 
     indistinguishable from, actual child pornography. The 
     majority in Free Speech Coalition clearly held that unless 
     material either meets the Ferber test, which protects 
     children exploited in the production process, or is obscene 
     under, Miller v. California, it is protected by the First 
     Amendment. Like the material covered by the unconstitutional 
     CPPA, the material described in the ``indistinguishable 
     from'' portion of section 3(a) does not involve or harm any 
     children in the production process. Thus, section 3(a) is 
     unconstitutional under Free Speech Coalition.
       B. Section 3(c) of the Bill provides an affirmative defense 
     to a child pornography prosecution that no actual child was 
     involved in the creation of the material. Thus, despite 
     section 3(a) discussed above, the Bill actually permits 
     computer-generated sexually explicit depictions of minors 
     (other than pre-pubescent minors and computer morphing which 
     appears as an identifiable minor), if the defendant meets the 
     burden of proving the affirmative defense. (Curiously, the 
     provision limiting the defense excludes material defined in 
     Sec. 2256(8)(A), i.e., that which used an actual minor in its 
     production. Read plainly, that suggests that in a non-
     computer child pornography case, one cannot escape liability 
     by proving that only adults were photographed. It is unlikely 
     that this is what was intended.)
       As Justice Kennedy, writing for the Court, says in Free 
     Speech Coalition (122 S.Ct. at 1404), shifting the burden of 
     proof on an element of the crime raises serious 
     constitutional issues. In fact, in the First Amendment 
     context, we believe that shift is unconstitutional; among 
     other things, it violates Smith v. California, 361 U.S. 147, 
     153 (1959) in that it eliminates the requirement that the 
     government prove knowledge of minority by shifting the burden 
     of proof to the defendant. Thus, defendant must prove a 
     negative--that no children were used--a difficult chore, 
     particularly if the computer programmer-designer is not 
     available or known to the defendant. Finally, under United 
     States vs. X-Citement Video, Inc., 513 U.S. 64 (1994), in the 
     case of a librarian, retailer or distributor, the government 
     must prove that he or she knew that the material was of an 
     actual minor This proposal impermissibly and 
     unconstitutionally shifts this burden.
       C. Section 4 creates a crime of pandering child 
     pornography, defined as the sale or offer of material 
     intending to cause the purchaser or offeree to believe that 
     the material is child pornography, whether it is or not. 
     Similarly, one who accepts or attempts to receive or purchase 
     material, believing it to be child pornography (whether or 
     not it is such), is also guilty of this new crime. This, in 
     effect, transforms consumer fraud into a felony. Once could 
     be selling copies of Mary Poppins or the Bible, but if one 
     intends to cause the buyer to believe that the book contains 
     a visual depiction of a minor engaging in sexual conduct, it 
     is a felony. In fact, the Bill goes one step further and 
     provides that the crime can be committed even though no 
     person actually provides, sells, receives, purchases, 
     possesses or produces any visual depiction (e.g., selling an 
     empty box). In effect, it criminalizes the intent to market 
     or to procure child pornography if some action is taken to 
     effectuate that desire, even if the material actually is not 
     child pornography. As discussed above, this seems to go 
     significantly further than Ginzburg v. U.S. permits and is 
     therefore likely unconstitutional.
       D. The first portion of section 5 of the Bill (new 18 USC 
     Sec. 1466A) provides that computer images of persons 
     indistinguishable from pre-pubescent children in sexually 
     explicit conduct are punishable as child pornography. (A pre-
     pubescent child is defined as a child whose ``physical 
     development indicates'' the child is 12 or younger, or who 
     ``does not exhibit significant pubescent physical or sexual 
     maturation.'' ``Indistinguishable'' is defined as ``virtually 
     indistinguishable, in that . . . an ordinary person . . . 
     would conclude that the depiction is of an actual minor'' 
     engaging in sexual acts. Drawings, cartoons, sculptures and 
     paintings are excluded.) This is based on Justice O'Connor's 
     distinction between virtual youthful-adult and virtual-child 
     pornography. However, there appears to be no requirement 
     under 1466A that minors were involved in the creation of the 
     depiction. Thus, it falls under Free Speech Coalition.
       E. The second part of Sec. 5 of the Bill is new Sec. 1466B, 
     which appears to be similar to Sec. 1466A except it does not 
     have the ``indistinguishable'' concept and it does apply to 
     drawings, cartoons, sculptures and paintings. Thus it seems 
     directly contrary to the Free Speech Coalition holding, 
     differing only in its limited application only to depictions 
     of younger children (i.e., 12 and under). Further, it appears 
     that material covered by Sec. 1466A is a subset of that 
     covered by Sec. 1466B, and would be covered by both.
       Media Coalition and its members urge you and the other 
     members of the Judiciary Committee not to approve either of 
     these bills. Not only are they clearly unconstitutional, but 
     passage of either bill would result in constitutional 
     challenges that could be exploited by person charged with 
     possession of actual child pornography.
           Sincerely yours,
                                             Michael A. Bamberger,
     General Counsel.

                          ____________________