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

Dear Senator:

S. 151, The Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (PROTECT Act) is set for markup in the Senate Judiciary Committee on January 30, 2003. From a First Amendment perspective, the bill represents a dramatic improvement over its House counterpart in the 107^th Congress, the Child Obscenity and Pornography Prevention Act of 2002, H.R. 4623.  However, because S. 151 imposes criminal liability on people who possess or create material protected by the free speech clause of the First Amendment, and because the bill puts unreasonable burdens on defendants who face the felony charges the bill authorizes, ACLU cannot endorse S. 151, and we believe it would not survive a constitutional challenge.  Below, we suggest a number of changes that could be made to the legislation to ensure its constitutionality.

S. 151 is a response to the Supreme Court's decision in Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389 (2002) holding several provisions of the Child Pornography Protection Act (CPPA) unconstitutional. The bill limits ""virtual"" child pornography which is ""virtually indistinguishable"" from pornography involving the use of an actual child, even though no child was actually used in production of the material. It creates a subcategory of child pornography that is also obscene (obscene child pornography). It prohibits ""pandering"" material as child pornography, even though the material may contain no actual child pornography. The bill provides an affirmative defense placing the burden on the defendant to prove the material was not produced using an actual child, even though not all defendants will be able to avail themselves of the defense. Further, the bill cripples the defense of such crimes by limiting the admissibility of evidence regarding any actual child involved in the production of the material. And finally, the bill, contains an extraterritorial jurisdiction provision that may be used by other countries to restrict speech in the United States.

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

S. 151 fails to distinguish between ""virtual child pornography"" (protected speech) from pornography that uses actual children (unprotected speech). This defect may be remedied by amending the bill to impose liability only when actual children are used to produce the objectionable material.

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]

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. 

Because S. 151 punishes both actual and ""virtual"" child pornography, it is 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. S. 151 imposes 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 amends 18 U.S.C. 2256 of the United States Code, and creates 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 essentially defines obscene child pornography as a visual depiction of a minor, or individual who appears to be a minor, actually engaging in 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.

S. 151 defines obscenity 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.

We suggest adding the prurient interest prong of the Miller test to remedy this problem.

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.

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[4], 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 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. We recommend removing the affirmative defense provision and placing the burden on the Government to prove beyond a reasonable doubt that an actual child was involved in the production of the material.

The ""pandering"" provision sweeps in non-commercial speech.

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. Because non-commercial speech is afforded a higher level of protection under the First Amendment,[5] we recommend limiting this provision to commercial exploitation.  The United States Supreme Court in Ashcroft advocated this position.

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, it should be limited to instances of commercial exploitation. The pandering provision included in S. 151 currently does not contain such a limitation.

S. 151 also covers advertising, promoting, presenting, describing, distributing or soliciting ""any material in a manner that conveys the impression"" the material is prohibited. 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. While ""false advertising"" can be addressed through the Federal Trade Commission Act, we question whether such draconian penalties should apply in instances where material may be marketed as obscene child pornography, yet in reality, it contains no such material. 

Additionally, S. 151's pandering provision applies to ""purported material, "" whatever that may be. As Senator Leahy noted in his 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."" This ambiguous term invites litigation and should be removed. 

We therefore recommend that the pandering provision be limited to commercial exploitation, allowing false advertising be addressed under the Federal Trade Commission Act, and removing the ""purported material"" language.

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. 

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 should be more explicit in providing that mere posting on the Internet or World Wide Web does not constitute the requisite intent. Otherwise, other countries could use this provision to argue that they can prohibit content based in the United States and protected by the First Amendment solely because the content was 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.

We therefore recommend that the provision be amended to make explicit that mere posting of material on the Internet does not constitute the requisite intent.

Conclusion

In summary, S. 151:

• Imposes criminal liability on those who possess or produce material protected by the First Amendment; 
• Chills protected speech because it places the burden on the defendant to prove the material was produced using an adult or was ""virtually"" created; 
• Includes a ""pandering"" provision which sweeps in non-commercial speech and includes the ambiguous term ""purported material""; 
• Restricts the defense from providing a defense, in that it frees the government from the ""burden"" of producing the actual minor allegedly involved in the material, and violates the right to confront one's accusers; and  
• Contains an extraterritorial jurisdiction provision that may be used by other countries to restrict speech in the United States.

For all of these reasons, we are unable to endorse the bill in its current form. We applaud the efforts to craft a bill that will withstand constitutional scrutiny, and we urge you to make the modest changes we identify above. 

Sincerely,

Laura W. Murphy
Director, ACLU Washington National Offfice

Marvin J. Johnson
Legislative Counsel