The U.S. Senate Monday afternoon passed a new child pornography bill designed to overcome the Supreme Court objections that struck down a previous effort by Congress to ban computer-generated child pornography images. The House has yet to pass companion or similar legislation.
In April of last year, the court ruled that Congress’ 1996 law banning virtual child pornography was a violation of free speech rights. The 6-3 decision striking down the law was written by Justice Anthony Kennedy, who said the statute was too broad and was unconstitutional. The high court rejected arguments by the Department of Justice that virtual child pornography was directly related to child sexual abuse. The Court said the First Amendment protects pornographers that produce images that only appear to have children engaging in sexual acts.
The new legislation, sponsored by Orrin Hatch (R.-Utah) and Patrick Leahy (D.-Vt.), hopes to avoid the court objections by not defining computer-generated images as obscene and, instead, prohibits the pandering or solicitation of anything represented to be obscene child pornography.
The bill, which passed on an 84-0 vote, requires the government to prove beyond a reasonable doubt that person charged with producing or distributing child pornography intended others to believe the product was obscene child pornography, which is not protected by the First Amendment. Persons accused under the new law would have to prove that real children were not used in the production of the material.
The bill also creates a new crime for the use of child pornography by pedophiles to entice minors to engage in sexual activity.
“As I said when we introduced the Hatch-Leahy Protect Act and again as the Judiciary Committee considered this measure, although this bill is not perfect, it is a good faith effort to provide powerful tools for prosecutors to deal with the problem of child pornography within constitutional limits,” Leahy said Monday. “We failed to do that in the 1996 Child Pornography Protection Act, much of which the Supreme Court struck down last year.”
One of Leahy’s concerns about the legislation is a provision that makes it a criminal activity for anyone who “presents” a film that is intended to cause viewers to believe that minors are engaging in sexual explicit acts.
“Any person or movie theater that presented films like Traffic, Romeo and Juliet, and American Beauty would be guilty of a felony,” Leahy said. “The very point of these dramatic works is to cause a person to believe that something is true when in fact it is not. These were precisely the overbreadth concerns that led the justices of the Supreme Court to strike down parts of the 1996 Act. We do not want to put child porn convictions on hold while we wait another six years to see if the law will survive constitutional scrutiny.”
