Letter to Reps. Smith and Scott on H.R. 4623, the ""Child Obscenity and Pornography Prevention Act of 2002""

May 8, 2002

The Honorable Lamar Smith
2231 Rayburn House Office Building
Washington, DC 20515-4321

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The Honorable Robert C. ""Bobby""  Scott
2464 Rayburn House Office Building
Washington, DC 20515-4603

Re:    Analysis of H.R. 4623, the ""Child Obscenity and Pornography Prevention Act of 2002""

Mr. Chairman and Ranking Member Scott: 

H. R. 4623, the ""Child Obscenity and Pornography Prevention Act of 2002"" is a hasty attempt drafted by the Department of Justice to override the United States Supreme Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S. ____ (2002). While the intentions of the authors may be good, the bill is fatally flawed. We therefore urge you to vote against this bill. 

H.R. 4623 seeks to ban ""virtual child pornography,"" and prohibit ""pandering"" of images as child pornography even if the images are not obscene or child pornography. It creates a whole new category of prohibited speech, prohibits using sexually explicit materials to facilitate offenses against minors, creates extraterritorial jurisdiction, and creates a database of minors who have been exploited in the creation of child pornography.

The ACLU opposes child pornography that uses real children in its depictions. Material, however, which is produced without using real children, and is not otherwise obscene, is protected under the First Amendment. H.R. 4623 attempts to ban this protected material, and therefore will likely meet the same fate as the provisions stricken from the Child Pornography Prevention Act (CPPA) in Ashcroft v. Free Speech  Coalition.

H. R. 4623 violates the Constitution by attempting to outlaw ""virtual child pornography,"" where no real child was used in the production of the material.

Section 2, section 4, and section 5 use the language ""virtually indistinguishable"" as a way to reach virtual child pornography.  This language comes directly from Justice O'Connor's dissenting opinion, in which she concludes she would uphold such a prohibition.  Justices Scalia and Rehnquist agreed with that portion of her opinion.  The majority of the court however, did not.  Yet, this bill attempts to follow the minority position, which the majority of the Court has already rejected.

In 1982, the United States Supreme Court rendered its first decision regarding a state statute directed at and limited to depictions of sexual activity involving children.  In New York v. Ferber, 458 U.S. 747 (1982), the Court upheld the statute and noted ""if 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.""   Thus, the Court clearly had in mind the possibility of virtual child pornography as an alternative to using a real child.

The Ferber decision also noted:

We note that the distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproductions of live performances, retains First Amendment protection.  [Emphasis added.] Id. at 764-65

Based upon this precedent, the Ashcroft decision was hardly surprising.  Ashcroft did, however, reiterate several principles applicable to this current effort against child pornography:

1. Nonobscene descriptions or depictions of sexual conduct that do not involve real children are a form of speech protected by the First Amendment. (Reaffirming Ferber.)

2. The government should focus its efforts on education and punishment for violations of the law rather than abridgment of the rights of free speech.  Slip Opinion at 7 [Kingsley Int'l Pictures Corp. v. Regents of Univ. of N.Y., 360 U.S. 684, 689 (1959)] Thus, the focus should be on those who actually harm children in the creation of child pornography rather than on those who create something from their imagination.

3. The fact that speech may be used to perpetrate a crime, for example, enticement or seduction, is insufficient reason to ban the speech.  ""The government may not prohibit speech because it increases the chance an unlawful act will be committed 'at some indefinite future time.'"" Slip Opinion at 15 [Hess v. Indiana, 414 U.S. 105,108 (1973) (per curiam)]

4. ""The government may suppress speech for advocating the use of force or violation of law only if 'such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.'"" Slip Opinion at 15 [Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam)] The fact that someone at some time may use child pornography to perpetrate a crime is too tenuous to meet this requirement. 

5.  ""The Government may not suppress lawful speech as the means to suppress unlawful speech.""  Slip Opinion at 17 Banning protected speech (virtual child porn) in order to ban unprotected speech (child porn using real children) ""turns the First Amendment upside down.""  Id. ""Protected speech does not become unprotected merely because it resembles the latter."" Id.

Here, the government is once again attempting to ban lawful speech in order to suppress unlawful speech, the very situation that Ashcroft v. Free Speech Coalition found unconstitutional.

The provisions in sections 2 and 4 are the most problematic. Section 2 defines child pornography using the ""virtually indistinguishable"" language and section 4 prohibits even possession of an image that is ""virtually indistinguishable.""  The provision in section 5 is less problematic because it is geared towards the use of the material to facilitate a crime, and thus, the reality of the visual image is immaterial.

The fatal flaw in the Child Pornography Prevention Act  (CPPA) was its criminalization of speech that was neither ""obscene"" under Miller v. California, nor ""child pornography"" involving the abuse of real children under New York v. Ferber.  H. R. 4623 repeats that mistake.  Like the CPPA, this bill would criminalize speech that does not appeal to the prurient interest and that does have redeeming literary, artistic, political or other social value.  For example, the bill would punish therapists and academic researchers who used computer-generated images in their research, and filmmakers who create explicit anti-child abuse documentaries.

H. R. 4623 creates a strict liability offense; under the bill, prohibited images may not be possessed for any reason, however legitimate.  Therefore, any scholarly research that may be used to verify or refute the underlying assumptions of the bill is rendered impossible.

Because H. R. 4623 repeats the same mistakes condemned in Ashcroft v. Free Speech Coalition, these provisions are likely to be held unconstitutional.

The Pandering provision in Section 3 is unconstitutional.

In Ashcroft v. Free Speech Coalition, the Court invalidated a pandering provision which banned depictions of sexually explicit conduct that were ""advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.""  The Court held that speech cannot be prohibited based on ""how it is presented"" as opposed to ""what is depicted.""  Slip Opinion at 19. 

While using different language, section 3 suffers from the same infirmity; it makes it a crime to ""describe"" an image as containing a ""visual depiction of a minor engaging in sexually explicit conduct.""  Thus, the description would be a crime even if the image itself was neither obscene nor child pornography.  For example, a person could describe the movie Thelma and Louise as containing a picture of a minor engaging in sexually explicit activity and go to jail, despite the fact no such picture exists in the movie.

Essentially, H. R. 4623 criminalizes speech that describes the image even if the image itself is protected.  This was what the Court found unconstitutional about a similar provision in the CPPA, and is therefore likely to find unconstitutional in this bill.

H. R. 4623 attempts to create a category of obscenity per se, which is unconstitutional.

Section 4 creates a new section entitled ""Obscene visual depictions of young children."" The section would define any visual depiction that is, or is virtually indistinguishable from, that of a prepubescent child engaging in sexually explicit conduct, as ""obscenity."" The Department of Justice describes this provision as prohibiting a category of materials that are per se obscene.  While the Attorney General may ""know it when he sees it"" that is not the constitutional criterion for determining what is obscene.

First of all, as noted above, virtual images are protected as free speech under the First Amendment.  The Attorney General is not free to disregard the First Amendment. Second, there is no such thing as per se obscenity.

Censors frequently comment that obscenity is not protected speech and thus can be freely censored. The implicit assumption is that obscenity is something anyone would know when they see it and it can easily be removed from sight. From a legal standpoint, that assumption is incorrect. 

In Roth v. United States, 354 U.S. 476 (1957), the United States Supreme Court held ""that obscenity is not within the area of constitutionally protected speech or press."" Id. at 484-485. Thus, anything deemed ""obscene"" has no protection under the First Amendment. 

After Roth, the Supreme Court began a sixteen-year odyssey to define obscenity. The difficulty of this task was exemplified by Justice Potter Stewart's famous quote in Jacobellis v. Ohio, 378 U.S. 184 (1964)(Stewart, J., concurring): ""I know it when I see it."" Not intended to be a definition of obscenity, Justice Stewart was venting his frustration at ""trying to define what may be indefinable."" Id.

In 1973, the Supreme Court in Miller v. California, 413 U.S. 15 (1973), crafted the definition of obscenity still used today. Known as the Miller test, it requires that a trier of fact (a judge or jury) examine the work and determine:

  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 in the applicable state law; and 
  3. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Only if the answer to all of these questions is ""yes"" can a work be judged ""obscene"" and only then does it lose its protection under the First Amendment.

As can be seen from Miller, the government cannot simply determine on its own whim that certain materials are excluded from First Amendment protection. In order to place certain speech into the category of obscenity, the government must initially provide a series of procedural safeguards. First, there must be a statute specifically defining the sexual conduct that may not be depicted or displayed. This requirement helps guarantee that speakers have fair notice of what is prohibited. Second, the material cannot legitimately be banned without a full adversarial trial. Finally, a jury must be available to apply the relevant ""community standards"" for obscenity to the challenged material.

Here, H. R. 4623 creates a broad new category of prohibited speech.  It clearly does not fit within the realm of ""obscenity"" because there is no requirement that the depiction appeal to the prurient interest, be patently offensive to community standards, nor that it be without redeeming social value. 

There is no such thing as per se obscenity. The reality is that speech is presumed to be protected under the First Amendment unless and until the government proves it to be obscene in an adversary proceeding.

H. R. 4623 creates an affirmative defense often impossible to meet.

H. R. 4623 amends title 18, section 2252A(c) to provide a defendant an affirmative defense. To avail himself of this defense, the defendant would have to demonstrate that no minor was used in the production of the material. The purpose of the provision is to afford a defense to one who is not, in fact, engaged in child pornography. However, defendants charged with possession or distribution as opposed to production, will likely be unable to avail themselves of the defense.

While the Court did not find it necessary in Ashcroft to decide whether the government could impose such a burden on a speaker, it noted ""serious constitutional difficulties by seeking to impose on the defendant the burden of proving his speech is not unlawful.""  Slip Opinion at 17. ""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."" Id. Here, as in Ashcroft, the government seeks to shift an impossible burden on a defendant who was not the producer of the work. As a result, this provision is likely to be held unconstitutional.

The prohibition on use of materials to facilitate offenses against minors in section 5 would appear to punish parents who show this material to their children.

Section 5 creates a new 18 U.S.C. §1471(a)(1) that prohibits showing ""to a person below the age of 16 years any obscene matter or child pornography, or any visual depiction that is, or is virtually indistinguishable from, that of a prepubescent child engaging in sexually explicit conduct.""  The section does not appear to provide a safe harbor for parents who may show their children such visual depictions as a warning.

Parents have the right and responsibility to determine what is in the best interests of their children. Troxel v. Granville, 120 S.Ct. 2054 (2000).  If a parent shows, for example, a picture to their own child to ascertain if this is what happened to their child, that parent has violated the law. Parents, not the government, should be the ones making decisions about what is most appropriate for their own children. This provision appears to violate that right.

The extraterritoriality provisions in section 6 legitimize actions such as those taken by France against Yahoo!

Section 6 allows United States jurisdiction where visual depictions of child pornography are made available within the United States by any means including by computer.  ""Minor"" is defined as a child under the age of 18. See 18 U.S.C. §2256(1).  Therefore in countries where it may be legal for minors to engage in consensual sex, those visual depictions may be available on the Internet, and thus available within the United States.  This provision would allow United States jurisdiction over a foreign citizen or business even though the citizen or business had done nothing wrong according to the laws of their own country.  This principle could be turned against people in the United States by foreign countries that censor speech protected in the U.S.

The Yahoo! case originating in France illustrates the concern about this provision. Yahoo! U.S. was sued in France both civilly and criminally because Nazi memorabilia was available on its Web site.  Although the web site was not targeted to France, once material is posted on the Web it is available anywhere in the world.  France argued that because French citizens could access this material in France where it was illegal, France could exercise jurisdiction over a U.S. company and United States citizens. A great furor arose in the U.S. business community because Yahoo! U.S. was being targeted for activity that was perfectly legal in the United States. 

Section 6 would legitimize France's action against Yahoo! U.S. and further endanger business interests abroad.

Section 8 of the bill further emasculates the Fourth Amendment and violates the privacy rights of Internet users.

Section 8 would allow service providers to turn over content information to the National Center for Missing and Exploited Children for violations of 18 U.S.C. section 2251, 2251A, 2252, 2252A, or 2260.  The National Center is then required to turn over this information to law enforcement.  Thus, law enforcement may use this provision to avoid obtaining a search warrant as required by the Fourth Amendment to the United States Constitution.

Current law requires service providers to turn over information if they inadvertently come upon evidence of a crime.  See 18 U.S.C. sec. 2702 (b)(6).  Section 8 deletes the inadvertent requirement, which means that service providers may intentionally search through private accounts to try to find evidence of a violation of one of these offenses.   Law enforcement is turning ISP into agents to investigate crimes for which they do not have probable cause.  

Section 9 of the bill unnecessarily invades the privacy of child victims.

Section 9 requires the Attorney General to establish a ""child pornography identification database"" that would include images of the actual children used in child pornography and the identity of these children.  The purpose of this database is to allow law enforcement and prosecutors to establish that the images obtained in child pornography investigations are of real children.  This information is far too sensitive, however, to compile in a centralized database without consent from the child's parent or guardian.  Even with the penalties provision in paragraph (7), the database fails to protect children's privacy.

Current law limits access to information about children obtained during the course of criminal proceedings.  18 U.S.C. 3509.   Identifiable information about children may only be disclosed to individuals involved in the criminal proceeding who have reason to know the information.  Id.   In comparison, Section 9's database would be available to any law enforcement personnel working on child pornography cases or cases involving child abuse and suspected child abuse.  This goes far beyond the law enforcement personnel working on a particular case or investigation and exponentially expands the number of individuals who would have access to highly sensitive personal information about children.  

Additionally, the privacy protections for the information are completely inadequate.  As noted, consent is not required before images are included in the database.  It is unclear what types of identifying information would be available in the database or how long the images would be stored.  And, there is no requirement for an audit trail of the uses and disclosures of information contained in the database so it would be difficult to track down abuses of the information

Conclusion

Government can and should outlaw the abuse of children. However, it cannot ban speech simply because that speech may encourage unlawful acts.

The government ""cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts.""  Stanley v. Georgia, 394 U.S. 557, 566 (1969).  First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end.  The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought. Slip Opinion at 15.

H. R. 4623 not only repeats mistakes from the past, it makes new mistakes as well. Because the bill is fatally flawed, both on constitutional and privacy grounds, we urge you to vote against it.

Sincerely,

Laura W. Murphy
Director

Marvin J. Johnson
Legislative Counsel

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