Child Pornography Produced Without an Actual Child: Constitutionality of 108th Congress Legislation

Publication Date: March 2003

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Justice

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Abstract:

In Ashcroft v. Free Speech Coalition, the Supreme Court declared unconstitutional the Child Pornography Prevention Act of 1996 (CPPA), P.L. 104208, 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."

This report analyzes the First Amendment issues raised by S. 151, 108th Congress, in the versions passed by the Senate and the House. The Senate passed the version reported by the Senate Committee on the Judiciary (S.Rept. 108-2). The House version began as H.R. 1161, which, except for its section 10, was adopted as an amendment (Title V) to H.R. 1104, which the House passed as S. 151, the Child Abduction Prevention Act.