Academic journal article Harvard Law Review

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

Academic journal article Harvard Law Review

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

Article excerpt


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. …

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