Constitutional Law - Commerce Clause - Eleventh Circuit Holds That Congress May Not Criminalize Possession of Intrastate Child Pornography

Harvard Law Review, May 2005 | Go to article overview

Constitutional Law - Commerce Clause - Eleventh Circuit Holds That Congress May Not Criminalize Possession of Intrastate Child Pornography


CONSTITUTIONAL LAW--COMMERCE CLAUSE--ELEVENTH CIRCUIT HOLDS THAT CONGRESS MAY NOT CRIMINALIZE POSSESSION OF INTRASTATE CHILD PORNOGRAPHY.--United States v. Maxwell, 386 F.3d 1042 (11th Cir. 2004).

The heart of the Rehnquist Court's federalism revival lies in the statement that the Constitution requires "a distinction between what is truly national and what is truly local." (1) Child pornography is truly a national problem. If local child pornography rings ever existed, those days are over. Child pornography is now transacted overwhelmingly over the Internet (2) and therefore should be within the domain of federal law enforcement. Recently, in United States v. Maxwell, (3) the Eleventh Circuit held the federal statute criminalizing possession of child pornography (4) unconstitutional as applied to a defendant who possessed images that were not proven to have crossed state lines, (5) even though the charged images were in electronic form and the defendant had engaged in Internet activity related to child pornography. (6) The court rested its decision on the conclusion that the defendant's conduct was not economic activity. (7) In so doing, the court allowed the implausible possibility that Maxwell had acquired purely intrastate child pornography to undercut the federal government's general regulatory scheme for fighting interstate child pornography.

When FBI agents searched James Maxwell's rented room, they found hundreds of images of child pornography on film, Zip disks, floppy disks, and CD-ROM. (8) The FBI also learned that Maxwell had established a Yahoo! user profile under the name "boy lover69 69," that he had accessed Internet groups that enable file sharing, that he had received emails concerning male homosexual teenagers, and that his temporary Internet folders contained nine images of child pornography. (9) All of these facts were admitted at trial, but Maxwell was charged with only two counts of possession: one for a Zip disk containing hundreds of images and one for a floppy disk containing about fifteen images. (10)

A jury in the United States District Court for the Middle District of Florida convicted Maxwell of violating the Child Pornography Prevention Act of 1996 (11) (the Act). (12) The Act proscribes the knowing possession of child pornography that has traveled in interstate commerce or that has been "produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce." (13) Although the government could not prove that the charged images had traveled interstate, it met the Act's jurisdictional element by establishing that the disks Maxwell used to store the images had traveled in interstate commerce after they were manufactured. (14)

The Eleventh Circuit reversed. Writing for a unanimous panel, Judge Tjoflat (15) held the Act unconstitutional as applied to Maxwell. (16) Following other circuits, (17) the court analyzed the possession of intrastate child pornography under the third area of Commerce Clause authority set forth in United States v. Lopez (18)--the regulation of conduct that "substantially affect[s] interstate commerce." (19) To interpret the "substantially affects" test, the panel turned to the four factors articulated by the Supreme Court in United States v. Morrison. (20) On one of those factors--whether the federal regulation contains an "express jurisdictional element which might limit its reach"--the panel followed the trend of its sister circuits in holding the jurisdictional element in the Act too broad to prevent unconstitutional overreach. (21) Because virtually all photographic material, disks, and computers now on the market contain parts that have traveled interstate, the Act's jurisdictional hook extends federal jurisdiction to every case of child pornography and is therefore, alone, "patently insufficient to ensure the statute's constitutional application." (22)

The court diverged from the majority of its sister circuits, however, in its determination that intrastate possession of child pornography is not an economic activity, (23) reasoning that possession alone does not entail market interaction.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Constitutional Law - Commerce Clause - Eleventh Circuit Holds That Congress May Not Criminalize Possession of Intrastate Child Pornography
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.