[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.
____________________