AAP on the Hill / Issues: Internet & Technology

August 15, 2002

Child Obscenity and Pornography Prevention Act (H.R. 4623)

In April, the U.S. Supreme Court, by a vote of 6-3, struck down portions of the Child Pornography Prevention Act (CPPA). The Act broadened the definition of child pornography to include visual depictions of adults who “appear to be” minors, and sexually explicit materials that were computer-generated. In Ashcroft v. Free Speech Coalition, the Court struck down key portions of the CPPA as unconstitutionally overbroad and violative of First Amendment protections for creative works of artistic merit. From the moment the decision was handed down, some Members of Congress have worked closely with the Department of Justice to craft revised legislation that would past constitutional muster. The resulting “Child Obscenity and Pornography Prevention Act” (H.R. 4623), which was introduced by Rep. Lamar Smith (R-TX), moved quickly through the House Judiciary Committee and was passed by the House in June. Only two members of the House, Bobby Scott (D-VA) and Jerrold Nadler (D-NY), voted against it, both citing constitutional grounds. As passed by the House, H.R. 4623 would criminalize as child pornography “a computer image or computer-generated image that is, or appears, virtually indistinguishable from that of a minor engaging in sexually explicit conduct.” The new language deviates only slightly from the language struck down by the Court, which banned any visual depiction that “is, or appears to be, of a minor engaging in sexually explicit conduct.” Under the legislation, it is illegal to offer, agree, attempt, or conspire to provide, sell, receive, or to produce, distribute, receive, or possess with intent to distribute or possess a visual depiction that is, or is virtually indistinguishable from, that of a pre-pubescent child engaging in such conduct. The legislation also prevents the use of child porn to facilitate offenses against minors. On the Senate side, Senators Jean Carnahan (D-MI) and Kay Bailey Hutchinson (R-TX) have introduced companion legislation (S. 2511), which has been referred to the Senate Judiciary Committee. The Committee’s chairman and ranking member, Senators Patrick Leahy (D-VT) and Orrin Hatch (R-UT), respectively, have also introduced their own legislation to address the Supreme Court’s decision, the proposed “Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2002” (S. 2520). This bill would create an affirmative defense by shifting to the defendant the burden of proving that the material in question involves the use of a minor. It would also prohibit the acts of pandering or soliciting anything represented to be obscene child pornography and any depictions of minors, or apparent minors, in sexual acts. S. 2520 also would strengthen the existing record-keeping requirements for individuals who produce sexually explicit materials by requiring them to keep records confirming that no minors were used to produce the materials. AAP has been monitoring all the bills closely and predicts that the Senate will address the issue before the end of the 107th Congress.

For more information contact:

Gloria Romanelli
Ph: 202-220-4542
Email: gromanelli@publishers.org