Child Pornography Produced Without an Actual Child: Constitutionality of 107th Congress Legislation (CRS Report for Congress)
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| Release Date |
July 15, 2002 |
| Report Number |
RL31499 |
| Report Type |
Report |
| Authors |
Henry Cohen, American Law Division |
| Source Agency |
Congressional Research Service |
Summary:
In Ashcroft v. Free Speech Coalition , the Supreme Court declared unconstitutional
the Child
Pornography Prevention Act of 1996 (CPPA) to the extent that it prohibited material that was
produced without the use of an actual child. The only possible means that the Court explicitly left
open for Congress to try to restrict such material was to ban it, but allow an affirmative defense that
the material was produced without using actual children. Even this approach the Court did not say
would be constitutional, but merely found no need to decide whether it would be.
This approach would shift the burden of proof to the defendant on the question of whether
actual children were used in producing the material. If the defendant could not meet the burden of
proof, then he could be punished for child pornography that might or might not have been produced
with an actual minor. The Court, however, said that "[t]he Government may not suppress lawful
speech as a means to suppress unlawful speech." This suggests that an affirmative defense would
be unconstitutional if it were not effectively available to all classes of defendant. It might not
effectively be available, however, to individuals charged with mere possession of child pornography,
or to producers of pornography that pre-dated the CPPA, as these defendants might have "no way
of establishing the identity, or even the existence, of the actors."
The three bills that this report examines -- H.R. 4623 , as passed by the House,
S. 2511 , and S. 2520 -- would all ban child pornography produced without
the use of an actual child. Though all three bills would allow an affirmative defense, to the extent
that they applied to defendants who had "no way of establishing the identity, or even the existence,
of the actors," they raise the same questions that the Court in Ashcroft posed as to the
constitutionality of such an approach. Though the bills would permit a defendant to prove that no
minors were used, rather than, as under the CPPA, that only adult actors were used, this would not
appear to eliminate this problem, and some defendants might be convicted for conduct involving
lawful speech.
Some provisions of the bills, however, appear constitutional. All three bills, for example,
would ban attempts to distribute material in a manner that conveys the impression that it depicts a
minor engaging in sexually explicit conduct, whether or not it does. This proscription, unlike the
one that the Court struck down in Ashcroft , would not ban any material itself, but would
ban only
attempts to distribute such material. All three bills would also make it a crime to provide minors
with child pornography, whether or not it was produced with an actual child. This would appear
constitutional because the Court has found there to be a compelling interest in shielding minors from
any pornography.
This report will be updated if action occurs on any of the bills it discusses.
