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H.R. 3726 – The Child Pornography Prevention Act of 2005
The Pence Amendment

Stated Purpose
To enhance prosecution of child pornography and obscenity by strengthening section 2257 of title 18, United States Code, to ensure that children are not exploited in the production of pornography, prohibiting distribution of child pornography used as evidence in prosecutions, authorizing assets forfeiture in child pornography and obscenity cases, expanding administrative subpoena power to cover obscenity cases, and prohibiting the production of obscenity, as well as its transportation, distribution, and sale, and for other purposes.


Introduced Sep 12, 2005 by Rep. Mike Pence (R-IN)
Last Action: Sep 13, 2005: Introductory remarks on measure.
Full text of legislation (PDF)
See Also: S. 2140 (Hatch)

By Jeffrey J. Douglas, Board Chair, Free Speech Coalition

Expands the scope of 18 U.S.C. § 2257 to cover most general release, “R”-rated films by including mere genital nudity and simulated sex, including, e.g., In the Cut, The Unbearable Lightness of Being, Traffic, Original Sin, 91/2  Weeks, A Clockwork Orange, Midnight Cowboy, Angel Heart, Angels in America, The Brown Bunny, Catch Me If You Can, City of Industry, Dangerous Liaisons, Desperado, Enemies, A Love Story, Equus, Frida, White Sands [with former Senator Fred Thompson], etc.

Expands the definition of producer to eliminate the need for the producer to have any contact with the performer, and includes anyone who reproduces material for publication or distribution, digitizes existing images or who manages the content of a website with sexually explicit material.

The amended definition of “produces” limits “commercial purpose” to assembling, manufacturing, publishing, duplicating, reproducing, or reissuing matter only. 
As amended, non-commercial producers of actual sexually explicit conduct (such as a married couple’s home movies) are subject to the provisions of 18 U.S.C. § 2257, as are those who are assembling, manufacturing, publishing, duplicating, reproducing, or reissuing or digitizing matter, even without commercial purpose.

Expands the definition of “matter” to include “digital image, digitally- or computer-manipulated image of an actual human being, or picture.” 
That appears to mean that the law applies to a computer-manipulated image of a person having sex, even if the real human being was not having sex.  Such language is so broad as to preclude the ability to comply with the law, resulting in a complete ban on “computer-manipulated image of an actual human being” depicting sex that never occurred.

There is no provision allowing reissuance or digitizing of materials prior to 1990.
Since the birth of photography, millions of images of actual sexually explicit conduct (especially with the broadened definition espoused in HR 3726) were created prior to the first enactment of a record creation and maintenance regime in 1988.  Under HR 3726, none of these materials can ever be digitized, because the now-required records were never created.  In the pre-2257 era, materials which depicted actual sexually explicit conduct were presumed not to be child pornography.  Imagine that.

Under the Administrative Subpoena section, there will be no judicial or grand jury check on prosecutorial abuse, and the consequent chilling effect. 
HR 3726 provides for administrative subpoenas of any records or information associated with an obscenity investigation.  Currently a grand jury or judge must make a determination of relevancy and/or probable cause.  There is no evidence that these checks on prosecutorial abuse have ever hampered any obscenity investigation.  Yet the appellate record is filled with instances of abusive seizures of First Amendment protected materials by prosecutors.  This bill would allow for no check on prosecutorial abuse.  For instance, under this provision, a prosecutor could lawfully subpoena one copy of every movie possessed by a retailer or distributor (as well as shipping records) for an obscenity investigation.  Or alternatively, consider the chilling effect of a retailer or distributor receiving an administrative subpoena for a movie title for an obscenity investigation.  This would likely lead to self-censorship of the title by the reseller, without any judicial or grand jury protection.

Precludes defense attorneys in child pornography cases from having possession of the alleged child pornography. 
  • This provision would be a severe burden on defending against child pornography prosecutions.  There have been numerous prosecutions of child pornography where proper forensic analysis revealed that the materials were not in fact child pornography. 
  • It is extremely difficult to find experts for the defense.  If the defense is not allowed to have outside experts review the materials other than in government sanctioned environments, two problems arise: 
  • One, it eliminates the possibility that there will be the required anonymity for experts prior to discovery rules of disclosure.  That is, the defense is only required to notify the prosecution who their experts will be if they intend to call them for trial.  If the potential expert must identify themselves to law enforcement (as they must to enter the law enforcement environment), the defense privilege is violated, and there will be greater difficulty in finding defense experts. 
  • Two, the government can find experts anywhere in the country, because there is no limitation on their ability to send the materials to their potential experts, but if the materials are available only at the local law enforcement office, the likelihood of using a non-local expert is substantially diminished.
  • This provision is entirely unnecessary.  The Federal Courts currently issue extremely restrictive protective orders precluding duplication or review of alleged child pornography except as necessary for the preparation of the defense.

Protected materials and valuable property and property rights would be subjected to forfeiture for ministerial errors. 
Under the new forfeiture provisions, any violation of 2257 would require mandatory forfeiture of immense amounts of property and property rights.  E.g., knowingly omitting the legal name of the custodian of records, but otherwise being fully compliant with all other provisions of 18 U.S.C. § 2257, results in the forfeiture of the otherwise fully protected material.  This is required even if the material contains only adults, only simulated sex and is otherwise fully protected.  The producers of Equus, Frida, and countless similar movies could have all rights of ownership stripped for committing a ministerial labeling or indexing error.  Or similarly, a videostore owner making an error in reviewing the labeling of a DVD would be required to forfeit the film, forfeit the cash register and inventory computer, as well as forfeit the lease on his or her building, all without judicial determination of proportionality.

Drafting error results in forfeiture of all materials covered by 2257, even those in compliance. 
As drafted, all materials covered by 18 U.S.C. § 2257, even those fully compliant, must be forfeited, upon a single conviction of an enumerated offense.  This provision, surely a drafting error, represents the kind of embarrassment that hearings are designed to prevent.  In its mindless rush to enact anti-adult entertainment provisions, without bothering to consider the literal language of the bill, the House of Representatives abdicated its responsibility as a deliberative body.

The purported “findings of fact” are irrelevant to the legislation.  Although the legislation opens with findings of fact, they are entirely restricted to child pornography.  Indeed, they appear to be restricted to the need for a federal prohibition even on the local act of creating child pornography.  Whatever this need may be, the bill does not do this at all.  Rather, it extends federal law to prohibit certain production of obscene materials, which do not necessarily involve children in any way.  But the findings of fact contain nothing at all about obscenity or, for that matter, about the extraordinarily vast amount of expression — from erotica to R-rated films — which would now be covered by Section 2257.

This lack of factual findings is no mere technical defect.  The federal courts are increasingly concerned about the factual basis for Congressional legislation, and this concern is especially appropriate where, as here, legislation very seriously burdens critical free expression rights.  Moreover, when the headlong rush to attach a two-day old bill as a rider to reported legislation effectively bypasses the established hearing process, the result is a bill, such as this one, riddled with typographical, drafting, and very serious policy errors and blunders.  As it stands, this bill  is an embarrassment to the House of Representatives.

Congress has even failed, thus far, to consider the effect of this legislation on pending litigation.  
The case of Free Speech Coalition et al. v. Gonzales is currently pending before the United States District Court for the District of Colorado, in which the Justice Department is attempting to defend the current version of Section 2257.  One would think that Congress would want to consult the Justice Department, through the hearing process, before making the Department’s job so much more difficult in court.

It is impossible to draft effective regulatory legislation without consulting the industry that the law purports to regulate.
No other industry (not gambling, not natural resource exploiters, not toxic waste disposers) is regulated without consultation.  Most major regulatory schemes enacted by Congress addressing the adult industry have been enacted without any hearings (e.g., adding obscenity as a RICO predicate, 18 U.S.C. § 2257 itself, the CPPA of 1996), let alone meaningful dialogue.  It should be axiomatic that no effective regulation can result without consulting the industry to be regulated.


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