Speech 107th Congress

Statement Of Senator Patrick Leahy Chairman, Senate Judiciary Committee On Introduction Of The Prosecutorial Remedies And Tools Against Exploitation Of Children Today Act

MR. LEAHY: Mr. President, I rise today to join Senator Hatch in introducing the Prosecutorial Remedies and Tools Against the Exploitation of Children Today (PROTECT) Act of 2002. This bill is intended to protect our nationís children from exploitation by those who produce and distribute child pornography, within the parameters of the First Amendment. Just last month, the Supreme Court in Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389 (April 16, 2002) (Free Speech), struck down portions of the 1996 Child Pornography Protection Act (CPPA) as being in violation of the First Amendment. I voted for that Act when it became law in 1996, and I join Senator Hatch today in introducing a bill carefully drawn to square with the Supreme Court's decision and protect our children with a law that when used by prosecutors, will produce convictions that will stick. While that task is not an easy one, Senator Hatch and I are working together to do all we can to protect our children and protect our Constitution at the same time.

The Free Speech Decision and its Implications: In Free Speech, the Supreme Court voided two provisions of the CPPA as being overbroad and imposing substantial restrictions on protected speech. The specific provisions struck down in that case targeted (1) virtual child pornography, child porn made not using real children but with computer images or adults and (2) material which is pandered as child pornography (though the material may not in fact be as advertised). In a complex and divided opinion, seven Justices ruled that some part of the CPPA was unconstitutional as currently drafted. Only Chief Justice Rehnquist and Justice Scalia, in dissent, would have upheld the CPPA in its entirety and only by reading the statute more narrowly than it appears on its face.

The Court in Free Speech faced a difficult task: applying the time honored principles of the First Amendment to the computer age. The Internet provides many opportunities for doing good, but also for doing harm. Over the past few years, the Congress has paid a lot of attention to how the Internet is being used to purvey child pornography manufactured through the sexual abuse of children, and has not always been successful in crafting legislation to address this problem that passes constitutional muster. Past efforts, such as the Communications Decency Act, the CPPA and the Child Online Protection Act have all had difficulty overcoming constitutional challenges. The majority opinion in Free Speech is grounded on two basic premises. First, the Court ruled that the definition of child pornography in the CPPA was overbroad and covered a substantial amount of material that was not obscene under the Supreme Court's traditional obscenity test. The Supreme Courtís Miller test provides that only obscene pornographic images can be prohibited without violating the First Amendment. See Miller v. California, 413 U.S. 15 (1973). Under the Miller test, the material must be viewed as a whole, and not judged by any single scene so that material with serious literary, artistic, or scientific value cannot be banned in a blanket manner. Thus, the Court ruled in the Free Speech case that the CPPA went well beyond Miller and covered such non-obscene movies as Traffic, Romeo and Juliet, and American Beauty.

Second, the Court ruled that the CPPA could not be saved by the so-called child pornography doctrine, which excludes yet another class of speech from First Amendment protection. Because the CPPA covers a broad array of pornographic material that only appears to be of children, such as computer images or youthful adults, the Court ruled that such material could not be banned and criminalized under the child porn doctrine first articulated in New York v. Ferber, 458 U.S. 747 (1982) (Ferber). The Court ruled that the Ferber doctrine was justified based on the harm to real children, and that "virtual porn," or material that appeared to be child pornography under the CPPA was not sufficiently linked to real child abuse to justify the CPPA's complete ban on it. In reaching this decision the Court considered and rejected some of the governmentís forceful arguments regarding the harmful secondary effects of even virtual child pornography, finding them insufficient under the First Amendment to justify a comprehensive ban. Since certain provisions of the CPPA were overbroad and covered such protected speech, however offensive, the Court struck those provisions down. The Court also struck down the CPPA's definition of pandered child pornography as overbroad, finding that it criminalized possession of non-obscene material not just by the so-called panderer, but by downstream possessors who might not have any knowledge as to how it was originally sold or marketed.

The Free Speech decision has placed prosecutors in a difficult position. With key portions of the CPPA gone, the decision invites all child porn defendants, even those who exploit real children, to assert a virtual porn defense in which they claim that the material at issue is not illegal because no real child was used in its creation. The increasing technological ability to create computer images closely resembling real children may make it difficult for prosecutors to obtain prompt guilty pleas in clear-cut child porn cases and even to defeat such a defense at trial, even in cases where real children were victimized in producing the sexually explicit material. In short, unless we attempt to rewrite portions of the CPPA, the future bodes poorly for the ability of the federal government to combat a wave of child pornography made ever more accessible over the Internet.

The Effective Enforcement of Child Pornography Act of 2002: The bill we introduce today is not an attempt to get around the Supreme Courts decision, or to ignore that decision, as do sizable portions of the Administration's bill, which has been introduced in the House of Representatives. Ignoring the law will simply land Americaís children right back where they started -- unprotected.

Instead, Senator Hatch and I have together crafted a bipartisan bill that works within the limits set by the Supreme Court. I expect that the debate on the complicated constitutional issues raised by this bill will be vigorous, and I appreciate that there may be isolated provisions of the bill that some may think crosses the First Amendment line drawn by the Court in the Free Speech case. That being said, this bill reflects a good faith attempt to protect children to the greatest extent possible by going up to that line, but not crossing it. I look forward to the debate on these issues as the legislative process moves forward, and I do not pretend that I or any member of this body has a monopoly on wisdom when it comes to such important and complex constitutional questions. Let me summarize some of the billís provisions.

Section 2 of the bill creates two new crimes aimed at people who distribute child pornography and those who use such material to entice children to do illegal acts. Each of these new crimes carry a 15 year maximum prison sentence for a first offense and double that term for repeat offenders. First, the bill criminalizes the pandering of child pornography, creating a new crime to respond to the Supreme Court's recent ruling striking down the CPPA's definition of pandering. This provision is narrower than the old pandering definition for two reasons, both of which respond to specific Court criticisms: First, the new crime only applies to the people who actually pander the child pornography or solicit it, not to all those who possess the material downstream. The bill also contains a directive to the Sentencing Commission which asks them to distinguish between those who pander or distribute such material who are more culpable than those who solicit the material. Second, the pandering in this provision must be linked to obscene material, which is totally unprotected speech under Miller. Thus, while I acknowledge that this provision may well be challenged on some of the same grounds as the prior CPPA provision, it responds to specific concerns raised by the Supreme Court and is significantly narrower than the CPPA's definition of pandering.

Second, the bill creates a new crime to take direct aim at one of the chief evils of child pornography: namely, its use by sexual predators to entice minors either to engage in sexual activity or the production of more child pornography. This was one of the compelling arguments made by the government before the Supreme Court in support of the CPPA, but the Court rejected that argument as an insufficient basis to ban the production, distribution or possession of virtual child pornography. This bill addresses that same harm in a more targeted manner. It creates a new felony, which applies to both actual and virtual child pornography, for people who use such material to entice minors to participate in illegal activity. This will provide prosecutors a potent new tool to put away those who prey upon children using such pornography, whether the child pornography is virtual or not.

Next, this bill attempts to revamp the existing affirmative defense in child pornography cases both in response to criticisms of the Supreme Court and so that the defense does not erect unfair hurdles to the prosecution of cases involving real children. Responding directly to criticisms of the Court, the new affirmative defense applies equally to those who are charged with possessing child pornography and to those who actually produce it, a change from current law. It also allows, again responding to specific Supreme Court criticisms, for a defense that no actual children were used in the production of the child pornography (i.e. that it was made using computers). At the same time, this provision protects prosecutors from unfair surprise in the use of this affirmative defense by requiring that a defendant give advance notice of his intent to assert it, just as defendants are currently required to give if they plan to assert an alibi or insanity defense. As a former prosecutor I suggested this provision because it effects the real way that these important trials are conducted. With the provision, the government can marshal the expert testimony that may be needed to rebut this virtual porn defense in cases where real children were victimized.

This improved affirmative defense provides important support for the constitutionality of much of this bill after the Free Speech decision. Even Justice Thomas specifically wrote that it would be a key factor for him. This is one reason for making the defense applicable to all non-obscene, child pornography, as defined in 18 U.S.C. ß 2256. In the billís current form, however, the affirmative defense is not available in one of the new proposed classes of virtual child pornography, which would be found at 18 U.S.C. ß 2256(8)(D). This omission may render that provision unconstitutional under the First Amendment, and I hope that, as the legislative process continues, we can work with constitutional experts to improve the bill in this and other ways. I do not want to be here again in five years, after yet another Supreme Court decision striking this law down.

The bill also provides needed assistance to prosecutors in rebutting the virtual porn defense by removing a restriction on the use of records of performers portrayed in certain sexually explicit conduct that are required to be maintained under 18 U.S.C. ß 2257, and expanding such records to cover computer images. These records, which will be helpful in proving that the material in question is not virtual child pornography, may be used in federal child pornography and obscenity prosecutions under this Act. The purpose of this provision is to protect real children from exploitation. It is important that prosecutors have access to this information in both child pornography and obscenity prosecutions, since the Supreme Court's recent decision has had the effect of narrowing the child pornography laws, making more likely that the general obscenity statutes will be important tools in protecting children from exploitation. In addition, the Act raises the penalties for not keeping accurate records, further deterring the exploitation of minors and enhancing the reliability of the records.

Next, this bill contains several provisions altering the definition of child pornography in response to the Free Speech case. One approach would have been simply to add an obscenity requirement to the child pornography definitions. 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. Under the Miller test, such material (1) appeals to the prurient interest, (2) is utterly offensive in any community, and (3) has absolutely no "literary, artistic or scientific value."

Some new provisions of this bill do take this obscenity approach, like the new ß 2256(8)(B). Other provisions, however, take a different approach. They attempt to address the fatal flaws identified by the Supreme Court in the CPPA with more narrow definitions of what the Court found were overbroad definitions of child pornography, which still might not be obscene speech under the test set forth by the Supreme Court. While these new provisions are more narrowly tailored than both the original CPPA and the Administration's proposal introduced in the House, these provisions may continue to benefit from further examination by constitutional scholars.

Specifically, the CPPA's definition of identifiable minor has been modified in the bill to include a prong for persons who are virtually indistinguishable from an actual minor. This adopts language from Justice O'Connor's concurrence in the Free Speech case. Thus, while this language is defensible, I predict that this provision will be the center of much constitutional debate. Unlike Senator Hatch, I believe that this new prong may not be needed, and may both confuse the statute unnecessarily and endanger the already upheld 'morphing' section of the CPPA because it applies to that provision as well. This new definition may create both overbreadth and vagueness problems in a later constitutional challenge both to the new and existing parts of the child pornography definition. In short, while these new definitional provisions are a good faith effort to go as far as the Constitution allows, they risk crossing the line.

It does not do America's children any good to write a law that might get struck down by our courts in order to prove an ideological point. Since most all the real cases being prosecuted even under the CPPA involve clearly obscene material, by anyone's standard, one could legitimately ask, Why push the envelope and risk cases getting thrown out of court? These provisions should be fully debate and examined during the legislative process.

The bill also contains a variety of other measures designed to increase jail sentences in cases where children are victimized by sexual predators. First, it enhances penalties for repeat offenders of child sex offenses by expanding the predicate crimes which trigger tough, mandatory minimum sentences. Second, the bill requires the U.S. Sentencing Commission to address a disturbing disparity in the current Sentencing Guidelines. The current sentences for a person who actually travels across state lines to have sex with a child are not as high as for child pornography. The Commission needs to correct this oversight immediately, so that prosecutors can take these dangerous sexual predators off the street. These are all strong measures designed to protect children and increase prison sentences for child molesters and those who otherwise exploit children.

The Act also has several provisions designed to protect the children who are victims in these horrible cases. Privacy of the children must be paramount. It is important that they not be victimized yet again in the criminal process. This bill provides for the first time ever an explicit shield law that prohibits the name or other identifying information of the child victim (other than the age or approximate age) from being admitted at any child pornography trial. It is also intended that judges will take appropriate steps to ensure that such information as the child's name, address or other identifying information not be publicly disclosed during the pretrial phase of the case or at sentencing. The bill also contains a provision requiring the judge to instruct the jury, upon request of the government, that no inference should be drawn against the United States because of information inadmissible under the new shield law.

The Act also amends certain reporting provisions governing child pornography. Specifically, it allows federal authorities to report information they receive from the Center from Missing and Exploited Children (CMEC) to state and local police without a court order. In addition, the bill removes the restrictions under the Electronic Communications Privacy Act (ECPA) for reporting the contents of, and information pertaining to, a subscriber of stored electronic communications to the CMEC when a mandatory child porn report is filed with the CMEC pursuant to 42 U.S.C. ß13032. This change may invite federal, state or local authorities to circumvent all subpoena and court order requirements under ECPA and allow them to obtain subscriber emails and information by triggering the initial report to the CMEC themselves. To the extent that these changes in ECPA may have that unintended effect, as this bill is considered in the Judiciary Committee and on the floor, we should consider mechanisms to guard against subverting the safeguards in ECPA from government officials going on fishing expeditions for stored electronic communications under the rubric of child porn investigations. This may include clarifying 42 U.S.C. ß13032 that the initial tip triggering the report may not be generated by the government itself. A tip line to the CMEC is just that, a way for outsiders to report wrongdoing to the CMEC and the government, not for the government to generate a report to itself without following otherwise required lawful process.

The bill provides for extraterritorial jurisdiction where a defendant induces a child to engage in sexually explicit conduct outside the United States for the purposes of producing child pornography which they intend to transport to the United States. The provision is crafted to require the intent of actual transport of the material into the United States, unlike the House bill which criminalizes even an intent to make such material accessible. Under that overly broad wording, any material posted on a web site internationally could be covered, whether or not it was ever intended that the material be downloaded in the United States.

Finally, the bill provides also a new private right of action for the victims of child pornography. This provision has teeth, including injunctive relief and punitive damages that will help to put those who produce child pornography out of business for good. I commend Senator Hatch for his leadership on this provision.

The Administration Proposal: There are many people who do not agree with the Supreme Court's decision in Free Speech, but that will not erase it from the books. It is the law of the land, and resulted from 7 justices who had problems with the overbreadth of the last child pornography law passed by Congress. That alone should counsel a thoughtful approach this time around. Everyone wants to protect our children, but we need to do it with cases and laws that stick.

It is tempting to rush to come up with a quick fix, but we owe our children more than a press conference on this matter. My initial review of the Administrationís proposal, now working its way through the House of Representatives, gives me serious concern. Already, the constitutional law experts and law professors with whom I have consulted on this matter have expressed a near consensus that large parts of that proposal will not withstand scrutiny under the First Amendment after the Free Speech case.

Indeed, the entire approach that the Administration has taken is this matter is to reach as far as possible, not to hedge its bets, and simply to throw down the gauntlet on the steps of the Supreme Court, daring it to strike down the law yet again. That does not serve anyone's interest, least of all the real victims of child pornography. Criminal prosecution is not about making an ideological point, whether one agrees with it or not; that is for speeches and law review articles. Criminal prosecution should be about helping victims and punishing criminals with cases that do not get thrown out of court.

Let me discuss a couple of the most problematic aspects of the Department's proposal. First, it sweepingly rejects any attempt to incorporate the Supreme Court's doctrine of obscenity into the definition of child pornography. Not even one provision takes that approach, which would at least ensure that some of the law was upheld. Instead, in its new 2256(8)(B) definition of child pornography, the Department simply changes the words "appears to be" in the current statute to "appears virtually indistinguishable from" in the new provision. The problem with that approach is this is the same argument that was tried by the Department in the Free Speech case and overwhelmingly lost. Although Justice O'Connor wrote that such an approach might satisfy her, she was not the deciding vote in the case; she was the seventh vote to strike down the statute.

Second, the Administration's proposal regarding the new crime for child pornography involving prepubescent children is also problematic under the Court's Free Speech case. Although the section is entitled "Obscene visual depictions of young children" the Department has assiduously avoided any obscenity requirement in the provision itself. I recognize that headlines and titles like prepubescent and obscene are popular, but one has to ask if the Department of Justice really believes that it can fool our federal judges with such linguistic slight of hand when there is no obscenity requirement in the statute itself, only the title? Or perhaps it is only the public that is supposed to be fooled.

In any event, as a legal matter, the provision contains absolutely no requirement that the material be judged as a whole for artistic, literary, or scientific value. That was a point that the Supreme Court repeatedly pounded home in the Free Speech case, yet it is simply ignored in this provision. This approach is especially frustrating because in the cases that the Department is likely to actually prosecute, it would be easy to meet the obscenity test. Under the Department's current approach, however, one can already predict the parade of legitimate movies and scientific or educational materials that those challenging the act will produce which meet the new definition. In addition, no affirmative defense is available under this new crime, so it cannot be saved from the Free Speech case on that basis either.

There are other problematic provisions in the Administration proposal, but I simply raise these two in order to make the point that the Department's proposal seems to be more concerned with making a public point than with making successful cases. If the Department's proposal becomes law, it will result in yet another round court cases, followed by another round of cases being thrown out, followed by another round of legislation. America's children deserve better, and I think that, while we may disagree on some of the specifics, that Senator Hatch and I have made a good faith and bipartisan effort to come up with a law that will survive judicial scrutiny and protect them for years to come.

For all of these reasons, I am pleased to introduce this legislation with Senator Hatch to help protect our nation's children. I hope that we can continue to work together to address the complex constitutional issues raised in this area. Mr. President, I ask unanimous consent that my entire statement, in addition to the letter from constitutional scholars to which I referred, be placed in the record.