Letter on S. 151, The Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003

The Honorable Patrick J. Leahy
433 Russell Senate Office Building
Washington, DC 20510-4502

Re: S. 151, The Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003

Dear Senator Leahy:

The Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003, (PROTECT Act), as amended in the Judiciary Committee markup, is a dramatic improvement over a similar bill which passed the House in the 107th Congress. It is a thoughtful bill, tailored to largely comport with the Supreme Court's decision in Ashcroft v. Free Speech Coalition. However, this bill still contains some constitutionally problematic provisions that may limit its effectiveness in addressing child pornography.

• S. 151 imposes criminal liability on people who possess or produce material protected by the First Amendment.

S. 151 continues to define as child pornography ""virtual child pornography"" (protected speech) instead of limiting its application to pornography that uses actual children (unprotected speech).

S. 151 defines an ""identifiable minor"" as, among other things, one who is ""virtually indistinguishable from an actual minor."" It also prohibits visual depictions of a ""minor, or an individual who appears to be a minor"" when that depiction is of the enumerated sexual acts.[1] The latest amendments specifically exclude ""depictions that are drawings, cartoons, sculptures, diagrams, anatomical models, or paintings."" This does help to address some of the Supreme Court's concerns, but does not go far enough.

In Ashcroft v. Free Speech Coalition, the Court identified the governmental interest in the CPPA as protecting actual children from exploitation. For that reason, the provisions of the CPPA prohibiting ""virtual"" child pornography were held to be overbroad and not narrowly tailored. The Court noted ""the CPPA prohibits speech that records no crime and creates no victims by its production."" Ashcroft at 1403.

Like the CPPA, S. 151 prohibits material that records no crime and creates no victims by its production. The term ""virtually indistinguishable"" was apparently lifted from Justice O'Connor's concurrence, and did not receive endorsement by the majority. To the extent that the material does not depict an actual minor, it is protected speech under the First Amendment. Furthermore, prohibiting material in which an individual appears to be a minor ignores both Ashcroft and New York v. Ferber, 458 U.S. 747 (1982). In Ferber, the Court relied on the distinction between actual and virtual child pornography as a basis for its holding: ""[I]f it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized. Simulation outside of the prohibition of the statute could provide another alternative."" Id. at 763. Thus, the Court explicitly endorsed using older individuals who appear to be minors.

This bill punishes depiction of wholly fabricated images in which no child was used to create the image. Because S. 151 subjects to liability those who possess and depict both actual and ""virtual"" child pornography, it is overbroad and likely to be found unconstitutional.

Additionally, the Supreme Court has made it clear that speech cannot be prohibited or deemed ""obscene"" unless it appeals to the prurient interest. The amendments to S. 151 now prohibit obscene depictions of a minor engaging in sexually explicit conduct. Because this provision of the bill uses the actual term ""obscene,"" it is likely that a court would use the current definition of obscenity found in Miller v. California (discussed below), and thus find that provision constitutional. However, S. 151 then goes further, imposing in proposed 18 U.S.C. §2252B(a)(2) and (b)(2), criminal liability on speech regardless of whether it appeals to the prurient interest, and therefore prohibits speech the Supreme Court will likely find protected under the First Amendment.

S. 151 creates a new section, 18 U.S.C. 2252B of the United States Code, creating a subset of child pornography that either involves the use of an actual minor or one who appears to be a minor, and is also obscene (hereinafter ""obscene child pornography).[2] The bill in §2252B(a)(2) and (b)(2) defines obscene child pornography as an image that is, or appears to be, a minor, engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex and lacks serious literary, artistic, political, or scientific value.

The United States Supreme Court in Miller v. California, 413 U.S. 15 (1973), defined obscene material with reference to a 3-part test: (1) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Id. at 25. Only if all three elements are present may the work be deemed obscene.

In the proposed §2252B(a)(2) and (b)(2), obscenity is defined with reference to only two parts of the Supreme Court's three-part test. It specifically defines the sexual conduct that is objectionable, and requires that the work lack literary, artistic, political, or scientific value. It does not however, require that the average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest. The bill therefore lacks one of the three essential elements in defining obscenity. Given that the United States Supreme Court has repeatedly, and as recently as April of last year, affirmed Miller[3], this omission creates serious doubts about the constitutionality of the bill.

Finally, the ""Nonrequired Element of Offense"" provision contained in the proposed §2252B(c) is too broad, punishing speech that is protected under the First Amendment. That provision states that ""It is not a required element of any offense under this section (obscene visual representation of the sexual abuse of children) that the minor depicted actually exist."" In Ashcroft, the Supreme Court made it clear that only obscene child pornography could be prohibited without regard to whether or not the child depicted actually exists. Because the provisions defining obscene child pornography in the proposed §2252B(a)(2) and (b)(2) define obscenity without regard to the prurient interest requirement, they apply to non-obscene depictions and are, therefore, overbroad.

• The ""pandering"" provision continues to sweep in non-commercial speech, making it overbroad.

The pandering provision contained in S. 151 is much narrower than the provision held unconstitutional in Ashcroft. For example, it does not prohibit possession of material promoted as containing obscene child pornography, although it does prohibit the actual promotion of the material as containing such scenes. In Ashcroft, the Supreme Court extensively discussed ""pandering"" as an offense, and advocated restricting such provisions to commercial exploitation.[4]

S. 151 prohibits knowingly ""advertis[ing], promot[ing], present[ing], describ[ing], distribut[ing], or solicit[ing] through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that conveys the impression that the material or purported material is, or contains, an obscene visual depiction of a minor engaging in sexually explicit conduct.""

The Supreme Court considered a pandering provision in Ashcroft. Relying on Ginzburg v. United States, 383 U.S. 463, 474 (1966), the Court noted that ""[I]n close cases evidence of pandering may be probative with respect to the nature of the material in question and thus satisfy the [obscenity] test."" ""Where a defendant engages in the 'commercial exploitation of erotica solely for the sake of their prurient appeal,' Id. at 466, the context he or she creates may itself be relevant to the evaluation of the materials."" Ashcroft at 1406. In noting difficulties with the CPPA pandering provision, the Court noted ""the statute. . .does not require that the context be part of an effort at 'commercial exploitation.'"" Id. Thus, while pandering may be relevant in determining whether material is obscene, it should be limited to instances of commercial exploitation. Failure to so restrict the pandering provision in S. 151 renders it constitutionally questionable.

A further problem involves S. 151's punishing advertising, promoting, presenting, describing, distributing or soliciting ""any material in a manner that reflects the belief, or that is intended to cause another to believe"" the material is prohibited. This provision allows punishing distribution of material that may well be protected speech, merely because of the way it was marketed. For example, if someone offered to provide you with a copy of Disney's Snow White, but represented to you that it contained scenes of obscene child pornography, that person will have committed a crime, punishable by a fine and up to fifteen years in prison, even though Snow White is clearly material protected under the First Amendment.

Additionally, S. 151's pandering provision applies to ""purported material, "" whatever that may be. As you noted in your introductory remarks about S. 151, this provision is problematic, in that it ""criminalizes speech even when there is no underlying material at all - whether obscene or non-obscene, virtual or real, child or adult."" Adding this ambiguous term to a provision already called into question by the Supreme Court's decision in Ashcroft makes this provision even more problematic.

• S. 151 chills protected speech because it places the burden on the defendant to prove the material was produced using an adult or was ""virtually"" created.

S. 151 provides an affirmative defense to various offenses, including mailing or transporting child pornography and possession. Unfortunately, few defendants will be able to avail themselves of the defense, even if they are innocent of the charges. Normally, only the producer of the material will be in a position to meet the burden of proof. Subsequent possessors or distributors are unlikely to have the records to meet that burden.

In Ashcroft, the government attempted to argue that the CPPA was not a measure suppressing speech but instead was a law shifting the burden to the accused to prove the speech was lawful. The government relied on the affirmative defense that allowed a defendant to avoid conviction for nonpossession offenses by showing that the materials were produced using only adults and were not otherwise distributed in a manner conveying the impression that they depicted real children. The Court noted in this regard:

The Government raises serious constitutional difficulties by seeking to impose on the defendant the burden of proving his speech is not unlawful. An affirmative defense applies only after prosecution has begun, and the speaker must himself prove, on pain of a felony conviction, that his conduct falls within the affirmative defense. In cases under the CPPA, the evidentiary burden is not trivial. Where the defendant is not the producer of the work, he may have no way of establishing the identity, or even the existence, of the actors. If the evidentiary issue is a serious problem for the Government, as it asserts, it will be at least as difficult for the innocent possessor. The statute, moreover applies to work created before 1996, and the producers themselves may not have preserved records necessary to meet the burden of proof. Failure to establish the defense can lead to a felony conviction. Id. at 1404-1405. [Emphasis added.]

The affirmative defense provided in S. 151 suffers from the same infirmities. It covers possession offenses in which the possessor may have no ability to avail himself of the affirmative defense. For example, one may possess a work that someone else produced completely by computer[5], involving no real children, yet have no ability to prove that in court. The bill also imposes criminal liability on those who created material before the effective date of the statute, which means even the producers may not have preserved the records necessary to meet the burden of proof.

Because the affirmative defense may lead to conviction of innocent possessors or distributors, the Supreme Court may find it unconstitutional. While the Court did not rule in Ashcroft that shifting the burden of proof to the accused was per se unconstitutional, it did acknowledge the ""serious constitutional difficulties"" in doing so.

• S. 151 hamstrings the defense, violates a defendant's right to due process of law, and violates the right to confront one's accusers.

It has long been axiomatic that in our Constitutional form of government, a defendant has the right to confront his accusers, and a right to due process of law. S. 151 takes these rights away by limiting admissible evidence.

S. 151 amends 18 U.S.C. §2252A to provide that ""[i]n any prosecution under this chapter, the name, address, or other identifying information, other than the age or approximate age, of any minor who is depicted in any child pornography shall not be admissible and the jury shall be instructed, upon request of the United States, that it can draw no inference from the absence of such evidence in deciding whether the child pornography depicts an actual minor.""

This provision hamstrings the defense and could result in the conviction of innocent people. The government will no longer have to prove an actual minor was involved in the production of the material; it only needs to provide the ""age or approximate age"" of the alleged minor. If the defense wishes to contest the government's assertion, it will be prohibited from introducing the birth record or any other information that would prove the identity and age of the minor. The jury would be left to speculate whether any records introduced actually applied to the alleged minor. Furthermore, the defense will not be allowed to cross-examine the alleged minor to determine whether that minor is the one depicted in the material.

The same problems apply to the provision contained on page 15, lines 6 through 8, in which the definition of ""identifiable minor"" ""shall not be construed to require proof of the actual identity of the identifiable minor."" Essentially, the government is in the position of saying to the jury, ""trust us, we wouldn't lie to you. The picture is that of an identifiable minor."" The defense is then disallowed from inquiring into specifics about the identity of the alleged minor. Provisions such as these tilt the playing field impermissibly in favor of the prosecution.

• S. 151's extraterritorial jurisdiction provisions may result in other countries imposing liability on U.S. companies for their speech, even though that speech is protected under the First Amendment.

S. 151 provides for extraterritorial jurisdiction where the defendant intends that the material be transported to the United States, or where the material is actually transported to the United States. This, unfortunately, will provide support for other countries that wish to exert jurisdiction over entities in the United States who make material available on the World Wide Web that violates the law of the other countries yet is protected speech in the United States.

Internet Service Providers in the United States were outraged when France exercised jurisdiction over Yahoo! US based solely on its posting information on the World Wide Web that was not targeted at France. France prohibits the sale of Nazi memorabilia. Although Yahoo! had a French office which abided by French law, Yahoo! US operated in the United States. Yahoo! US had Nazi memorabilia for sale on its auction site. Simply because French citizens could access Yahoo! US, France brought an action against Yahoo! US for violating French law. A U.S. court has held that France may not bring an action in the U.S. to enforce the judgment, and that Yahoo! US was protected under the First Amendment. The case is working its way through the appeals process.

Once an item is posted on the World Wide Web, it is available to anyone, anywhere in the world, regardless of the poster's intentions.

S. 151 prohibits transporting a ""visual depiction to the United States, its territories or possessions, by any means, including by computer or mail."" Thus, if someone in Zimbabwe posts child pornography on the World Wide Web, it is accessible in the United States. Although S. 151 requires an intent that the depiction be transported to the United States, it does not make clear that mere posting on the Internet or World Wide Web does not constitute the requisite intent. If mere posting constitutes the requisite intent, other countries could use this provision to argue they can prohibit content based in the United States and protected by the First Amendment solely because the content was ""intended"" to be available in that foreign country. For example, France could ban Nazi memorabilia from U.S. web sites, China could ban U.S. criticism of its leaders, and Saudi Arabia could ban images of bikini-clad women pictured on U.S. travel sites. First Amendment protection for U.S. entities would be stripped away solely because the speech was available in foreign countries with limited respect for freedom of speech.

• S. 151 contains ineffective mandatory minimum sentences for certain repeat offenders.

S. 151 extends existing mandatory minimum sentences to a new category of repeat offenders.

Chief Justice William Rehnquist has called mandatory sentencing ""a good example of the law of unintended consequences,"" and several Members of the Senate Judiciary Committee have expressed reservations about mandatory minimum sentences. The Judicial Conferences of all 12 federal circuits have urged the repeal of mandatory minimum sentences, after concluding that they are unfair and ineffective. And numerous studies, including those by the Department of Justice and the U.S. Sentencing Commission, indicate that mandatory minimum sentencing is not an effective instrument for deterring crime.

Mandatory minimum sentencing deprives judges of the ability to fashion sentences that suit the particular offense and offender. Despite their flaws, the Sentencing Guidelines are better able to take into account the range of factors that are relevant to the sentencing decision.

The Sentencing Guidelines also are better able to exclude factors that give rise to unwarranted sentencing disparities. In transferring sentencing discretion from judges to prosecutors, mandatory minimum sentences transfer the sentencing decision from open courtroom to closed prosecutor's office. Consequently, there are inadequate guarantees that statutorily prohibited factors such as race, age and gender do not influence the ultimate sentence. Even when the charging - and, in effect, sentencing - decision is free from taint, such closed-door decisions can undermine the appearance of equal justice.

We greatly appreciate the efforts you and Senator Hatch have made to craft a bill that will withstand constitutional scrutiny. While S. 151 is certainly closer to meeting that goal than the earlier House bill, it still falls short of fully complying with Ashcroft v. Free Speech Coalition and raises other constitutional problems as well.

Sincerely,

Laura W. Murphy
Director

Marvin J. Johnson
Legislative Counsel

ENDNOTES

[1] This is in relation to the definition of ""obscene"" child pornography, which will be discussed below.

[2] Child pornography involving the use of actual children may be prohibited whether or not it is obscene. Because Ashcroft held that ""virtual"" child pornography is protected speech, it may only be prohibited if it is otherwise obscene.

[3] Miller was most recently reaffirmed by Ashcroft v. Free Speech Coalition, 122 S.Ct. 1389 (2002), in which the Court struck certain provisions of the Child Pornography Protection Act (CPPA), partly on the basis that the act covered works regardless of whether they appealed to the prurient interest, or whether the image was patently offensive, or whether it had literary, artistic, political, or scientific value.

[4] Non-commercial speech currently receives greater protection under the First Amendment. Commercial speech is still protected under the First Amendment, however restrictions on such speech are reviewed by the Court with a more lenient standard. See Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980).

[5] The Supreme Court held in Ashcroft, that virtual child pornography is protected under the First Amendment.