Protecting Our Children and the Constitution: An Analysis of the "Virtual" Child Pornography Provisions of the Protect Act of 2003

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TABLE OF CONTENTS

INTRODUCTION
I.   BACKGROUND TO THE CURRENT DEBATE
     A. The Dangers of Child Pornography
     B. The Supreme Court Weighs In: Pornography and the
        First Amendment
        1. First Amendment Jurisprudence Generally
        2. Defining the Standard of Obscenity:
           Miller v. California
        3. Possession of Obscene Materials:
           Stanley v. Georgia
        4. A New Class of Unprotected Speech: Child
           Pornography and New York v. Ferber
        5. Possession of Child Pornography: Osborne v. Ohio
II.  THE CHILD PORNOGRAPHY PREVENTION ACT OF 1996
III. ASHCROFT V. FREE SPEECH COALITION
IV.  THE CONGRESSIONAL RESPONSE TO
     ASHCROFT V. FREE SPEECH COALITION:
     THE PROTECT ACT OF 2003
     A. Congressional Findings
     B. The Child Pornography Provisions: 18 U.S.C. [section] 2256
        and [section] 2252A
        1. The Revised Definition of
           Child Pornography of [section] 2256
        2. The Affirmative Defense of [section] 2252A
           a. Interpreting the Affirmative Defense as a
              Constitutionally Sound Rebuttable Presumption
           b. A "Complete and Sufficient" Affirmative
              Defense and the Ability To Meet Its
              Burden of Production
        3. Surviving a Facial Constitutional Challenge
     C. The Obscenity Offense: [section] 1466A
CONCLUSION

INTRODUCTION

In 2003, Congress passed the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (PROTECT). (1) The Act was passed as a response to the Supreme Court's 2002 decision in Ashcroft v. Free Speech Coalition, (2) which held unconstitutionally overbroad two provisions of the Child Pornography Prevention Act of 1996 (CPPA) (3) relating to what material could permissibly be described as child pornography. This Note will argue that the statutory amendments to reconstitute the definition of child pornography in the PROTECT Act are a constitutionally sound response to the Supreme Court's concerns and can survive a facial challenge in the courts. Portions of the Act's obscenity offense, however, are likely unconstitutional.

This Note will begin in Part I by providing a background to the issue. Part I will describe the traditional concerns associated with child pornography, its dangers, and the rationale behind its proscription. It will then briefly outline the Supreme Court's past cases with regard to the First Amendment generally and as applied to obscenity and child pornography specifically. Part II will describe the CPPA, the statute at issue in Free Speech Coalition. Part III will examine the Supreme Court's decision in Free Speech Coalition. Part IV will analyze the PROTECT Act and will conclude that the revised statutory definition of child pornography no longer contains within its purview a substantial amount of otherwise protected speech. Further, its reconstituted affirmative defense now adequately protects those individuals on its face. Moreover, the revised statutory definition and the affirmative defense work in tandem to create a rebuttable presumption that is constitutionally sound under the Due Process Clause of the Fifth Amendment. Finally, this Note will argue that the creation of an obscenity offense for distribution and possession of virtual child pornography is a valiant effort to eliminate those materials not proscribable as child pornography. Because the PROTECT Act's obscenity offense fails to fully apply the Court's standard of obscenity as defined in Miller v. California, (4) however, it will not survive judicial review in its current form.

I. BACKGROUND TO THE CURRENT DEBATE

A. The Dangers of Child Pornography

Before delving into the legal issues surrounding the First Amendment's protection of free speech and its application to child pornography, it is important first to consider the impact of pornography's production and dissemination. …