The Senate Judiciary Committee held an October 2 hearing to examine two legislative proposals (S. 2520/H.R. 4623) that would revise the 1996 Child Pornography and Prevention Act (CPPA), portions of which were invalidated by the U.S. Supreme Court for violating the First Amendment.
In a 6-3 decision on April 16, the Court ruled that the CPPA expanded the prohibition on child pornography to include not only pornographic images using real children, but also any computer-generated images that “appear to be” of a minor engaging in sexual activities. The Court said that the 1996 law, aimed at protecting minors from child molesters, was overly broad and unconstitutional because it could impinge on legitimate works of art.
Legislation (S. 2520) recently was introduced in the Senate in response to the Court’s decision. Sponsored by Sens. Orrin Hatch (R-UT) and Patrick Leahy (D-VT), the Prosecutorial Remedies and Tools Against the Exploitation of Children Today (PROTECT) Act would narrow the definition of virtual child pornography by requiring consideration of the artistic, literary, or educational value of the work as a whole.
The bill includes several added provisions designed to help police and investigators prosecute child pornography cases and protect the rights of children. The bill would establish a victim shield law to keep the identity of child victims out of court and would increase the penalties for repeat offenders who cross state lines to sexually molest a minor. The legislation also would create a new felony for using child pornography, virtual or not, to entice a minor into engaging in sexual activity and would expand recordkeeping requirements for pornographic material and penalties for false record-keeping.
Additionally, on June 25, the House passed a bill (H.R. 4623) in response to the Court’s ruling (see The Source, 6/28/02).
Much of the discussion at the hearing centered on a comparison of H.R. 4623 and S. 2520 and whether the two bills could withstand a constitutional challenge.
Representing the Congressional Caucus on Missing and Exploited Children, Rep. Earl Pomeroy (D-ND) told the committee, “I strongly believe that the first line of defense is with parents, teachers and others in our communities talking to our children about being safe on the Internet.” He continued, “But I also believe our role as lawmakers is to provide the next line of defense in the event the first fails.” He added, “We must provide adequate tools to law enforcement and prosecutors, reliable laws that will stand up to challenge, to put away those who would bring harm to our children.”
Rep. Pomeroy testified that he was one of the cosponsors of H.R. 4623. “Working closely with constitutional scholars at the Department of Justice, we carefully crafted a bill to narrowly define the terms and scope of the law,” he explained. “I believe we have addressed the concerns raised by the Court to provide lasting protection for our children against would-be pedophiles and exploiters,” he asserted.
However, Committee Chair Leahy criticized the House-passed bill. Talking about the Senate bill, he said, “One approach would simply be to add an ‘obscenity’ requirement to the child pornography definitions.” He speculated, “Outlawing all obscene child pornography, real and virtual, minor and youthful-adult, simulated and real, would clearly pass a constitutional challenge because obscene speech enjoys no protection at all.”. The House bill “rejects any attempt to incorporate the Supreme Court’s doctrine of ‘obscenity’ into the definition of child pornography,” he charged. “Instead, in its new definition of child pornography, the Justice Department simply changes the words ‘appears to be’ in the current statute to ‘appears virtually indistinguishable from’ in the new provision,” he added.
Daniel Collins of the Department of Justice testified that, although the two bills have points of difference, “the overall approach of the bills is, at a conceptual level, very similar.”
Mr. Collins pointed out several provisions in S. 2520 that his agency does not support. “We do not support the section of the bill which would make inadmissible ‘the name, address, or other identifying information, other than the age or approximate age, of any minor who is depicted in any child pornography,'” he said. “This provision could preclude the admission of evidence necessary to prove that a particular item of child pornography was in fact produced using a real child,” he explained. “We believe that the privacy protection provision in current law, together with the discretion afforded to district judges under the Federal Rules of Evidence, should be sufficient to address any concerns in this area,” he added.
We also do not support the bill’s requirement “that additional attorneys be appointed to prosecute child pornography cases,” he said. The bill “would provide no funding for that purpose,” he stated.
Ann Coughlin of the University of Virginia School of Law highlighted some of the challenges in revising the CPPA. “The drafters of the PROTECT Act have continued to search for legitimate solutions to problems that may hamper federal prosecutors in their effort to shut down the child porn business, and, at the same time, the drafters have made a conscientious and good faith effort to respond directly to the specific First Amendment concerns identified by the Supreme Court,” she said and added, “I believe that the PROTECT bill is a nuanced and responsible law-enforcement measure.”
In contrasting the two bills, she told the committee, “The House bill seems to be both too broad and too narrow.”
Citing the opinion by Justice Anthony Kennedy, she explained, the Court “heavily criticized the CPPA for banning sexually explicit materials that ‘appear to depict’ minors because, among other things, such materials often possess literary or other significant value.” She said that the government argued unsuccessfully “that the prohibited speech was ‘virtually indistinguishable’ from child porn that the government is free to regulate.” Yet, the House bill “offers to define child pornography as encompassing virtual child porn that is ‘indistinguishable’ from porn produced by using actual minors,” said Ms. Coughlin. “The House bill seems to embody a decision merely to reenact the CPPA all over again,” she added.
