WikiLeaks Document Release http://wikileaks.org/wiki/CRS-RS21463 February 2, 2009 Congressional Research Service Report RS21463 Child Pornography: Comparison of Selected Provisions of S. 151 and H.R. 1161 with Brief Comments on their Constitutionality Henry Cohen, American Law Division Updated March 27, 2003 Abstract. In Ashcroft v. Free Speech Coalition, the Supreme Court declared unconstitutional the federal child pornography statute to the extent that it prohibited material that was produced without the use of an actual child. The case held, in other words, that pornography produced without the use of a minor, whether drawn or painted, computer-generated, or produced only with adult actors, is protected by the First Amendment, even if it appears to portray a minor, unless it is obscene. In response to this decision, the Senate passed S. 151, 108th Congress, and the House will consider H.R. 1161, 108th Congress. This report compares selected provisions of these bills and comments on their constitutionality. Order Code RS21463 Updated March 31, 2003 CRS Report for Congress Received through the CRS Web Child Pornography: Comparison of Selected Provisions of the Senate-passed and House- passed Versions of S. 151, 108th Congress, with Brief Comments on their Constitutionality Henry Cohen http://wikileaks.org/wiki/CRS-RS21463 Legislative Attorney American Law Division Summary In Ashcroft v. Free Speech Coalition, the Supreme Court declared unconstitutional the federal child pornography statute to the extent that it prohibited material that was produced without the use of an actual child.1 The case held, in other words, that pornography produced without the use of a minor, whether drawn or painted, computer- generated, or produced only with adult actors, is protected by the First Amendment, even if it appears to portray a minor, unless it is obscene.2 In response to this decision, the Senate and House passed differing versions of S. 151, 108th Congress.3 This report compares selected provisions of these bills and comments briefly on their constitutionality.4 1 535 U.S. 234 (2002). 2 "Obscenity," which is not protected by the First Amendment, is defined by the Supreme Court as material that appeals to the prurient interest, is patently offensive, and lacks serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. 15, 24 (1973). Pornography that uses an actual child is not protected by the First Amendment, even if it meets none of the three criteria for obscenity. 3 The House-passed bill began as H.R. 1161 and was adopted (except for section 10) as an amendment (Title V) to H.R. 1104, which the House passed as S. 151. 4 For comparison of additional provisions, see CRS Report RS21468, Child Pornography: Side-by-Side Comparison of the Senate-passed and House-passed Versions of S. 151, 108th Congress. For additional information on the bills' constitutionality, see CRS Report RL31744, Child Pornography Produced Without an Actual Child: Constitutionality of 108th Congress Legislation. For additional information on child pornography law, see CRS Report 95-406, Child Pornography: Constitutional Principles and Federal Statutes. Congressional Research Service ~ The Library of Congress CRS-2 Provision Senate-passed bill House-passed bill Comment Pandering, Section 3 would Section 503 would enact The Senate-passed bill, false prohibit advertising, 18 U.S.C. § 2252B, which but not the House- advertising promoting, presenting, would prohibit advertising, passed bill, includes distributing, or promoting, presenting, or "distributes" and soliciting any material describing any material in "obscene." To ban in a manner to cause a manner to cause another distribution would another to believe that to believe that it is child apparently be it is an obscene visual pornography produced unconstitutional as depiction of a minor, with an actual child. applied to protected or is child speech; the other verbs pornography produced would merely prohibit with an actual minor. false advertising. http://wikileaks.org/wiki/CRS-RS21463 CRS-3 Provision Senate-passed bill House-passed bill Comment Providing Section 3 would Section 505 would prohibit Inducing a minor to material to prohibit distributing, providing or showing a participate in an illegal minors offering, sending, or person under 16 material activity, by any means, providing a minor (a that is obscene or child may be prohibited, but person under 18) with pornography, whether it is questionable child pornography, produced with an actual whether banning only a whether produced child or not, regardless of means that restricts with an actual child or purpose. protected speech would not, to induce the be constitutional.5 minor to participate in an illegal activity. Providing or showing pornography to minors, even if it is protected speech, may be prohibited.6 Affirmative Section 3 would allow Section 502(d) would Requiring proof that http://wikileaks.org/wiki/CRS-RS21463 defense a defendant to avoid allow a defendant to avoid each person was an conviction by proving conviction by proving that adult, as the law the that each person used no person used in Court struck down did, in producing the producing the alleged child meant that there was no alleged child porno- pornography was a minor. affirmative defense if graphy was an adult or the material was pro- none was a minor. duced without actors. But the bills' affirma- tive defenses might be unconstitutional because a defendant other than the producer might have no way to know how the material was produced. 5 R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). 6 Ginsberg v. New York, 390 U.S. 629 (1968); Sable Communications of California v. Federal Communications Commission, 492 U.S. 115 (1989). CRS-4 Provision Senate-passed bill House-passed bill Comment Child Section 5 would Section 502(a) would Under Ashcroft, it pornography define "child define "child pornography" would be unconsti- with an pornography" to to include a computer- tutional to prohibit any image require the use of an generated image that is child pornography not indistin- "identifiable minor," "indistinguishable" from produced with an guishable and would define that of an actual minor. 18 actual minor, even if it from that of "identifiable minor" to U.S.C. § 1466A, which is indistinguishable an actual include an image would be created by from an actual minor. minor "virtually indis- section 504, would define tinguishable" from "indistinguishable" to that of an actual mean "virtually minor. indistinguishable." Depictions, Section 6 would enact Section 504 would enact Obscene material is not obscene or 18 U.S.C. § 2252B, 18 U.S.C. § 1466B, which protected by the First otherwise, of which would prohibit would prohibit producing, Amendment, even if it minors producing, distribut- distributing, receiving, or is produced with no http://wikileaks.org/wiki/CRS-RS21463 engaging in ing, receiving, or possessing with or without actual person. Material sexually possessing with or intent to distribute, any that lacks serious value explicit without intent to depiction that appears to be is not obscene unless it conduct distribute, any of a minor engaging in appeals to the prurient depiction that appears sexually explicit conduct, interest and is patently to be of a minor if it is obscene. offensive. engaging in sexually explicit conduct, if it Even though obscene is obscene or lacks material is unprotected, serious literary, possessing it in "the artistic, political, or privacy of one's own scientific value. home," without intent to distribute, is protected.7 Depictions No provision Section 504 would enact Under Ashcroft, it of pre- 18 U.S.C. § 1466A, which would be unconsti- pubescent would prohibit producing, tutional to prohibit any children, distributing, receiving, or child pornography not actual or possessing with or without produced with an otherwise intent to distribute, any actual minor, regard- depiction that is, or is less of the apparent age indistinguishable from, of the child it depicts. that of a pre-pubescent child engaging in sexually explicit conduct. 7 Stanley v. Georgia, 394 U.S. 557, 568 (1969).